II 117th CONGRESS 1st Session S. 358 IN THE SENATE OF THE UNITED STATES February 23, 2021 Mr. Thune (for himself and Ms. Sinema ) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs A BILL To amend title 23, United States Code, to modify the distribution of funds under the tribal transportation program, and for other purposes.

1. Short title This Act may be cited as the Tribal Transportation Equity and Transparency Improvement Act of 2021 . 2. Tribal transportation program (a) In general Section 202 of title 23, United States Code, is amended— (1) in subsection (a)(9)(A), by striking construction and improvement and inserting construction, improvement, and highway safety ; (2) in subsection (b)— (A) in paragraph (1)— (i) by striking subparagraph (D) and inserting the following: (D) Additional facilities (i) In general Not later than 270 days after the date of enactment of the Tribal Transportation Equity and Transparency Improvement Act of 2021 , and not less frequently than every 3 years thereafter, the Secretary of the Interior shall publish in the Federal Register a notice requesting proposals from Indian tribes to include additional transportation facilities that are eligible for funding under the tribal transportation program in the inventory described in subparagraph (A), if those proposed additional facilities are included in the inventory in a uniform and consistent manner nationally. (ii) Rule of construction Nothing in this subparagraph— (I) prohibits the Secretary of the Interior from including in the inventory under subparagraph (A) additional transportation facilities more frequently than required under clause (i), including, as necessary, in response to a proposal from an eligible Indian tribe submitted during a period not described in the notice under clause (i); or (II) requires Indian tribes to submit proposals to the Secretary of the Interior in response to the notice required under clause (i). ; and (ii) by adding at the end the following: (F) Public availability The Secretary of the Interior shall ensure that all non-confidential information within the inventory described in subparagraph (A) is made available— (i) in a user-friendly manner on the public website of the Department of the Interior; and (ii) in a manner capable of being searched and downloaded by users of the public website of the Department of the Interior. ; and (B) in paragraph (3)(B), in the matter preceding clause (i), by striking fiscal year 2012 and inserting the most recent fiscal year for which data is available ; (3) in subsection (c)— (A) in paragraph (3)— (i) in subparagraph (A), by striking ; and at the end and inserting a period; (ii) by striking subparagraph (B); and (iii) in the matter preceding subparagraph (A), by striking shall be— and all that follows through selected by in subparagraph (A), and inserting shall be selected by ; and (B) by adding at the end the following: (4) Nationally significant Federal lands and Tribal projects program Notwithstanding any other provision of this section, amounts made available to Indian tribes under subsection (b)(3) may be used for planning and design activities related to applications for grants under the nationally significant Federal lands and tribal projects program under section 1123 of the FAST Act ( 23 U.S.C. 201 note; Public Law 114–94 ). ; and (4) in subsection (e)(2), by striking as appropriate, and inserting subject to subsection (a)(9), . (b) Inspector general review (1) In general Not later than 180 days after the date of enactment of this Act, the Inspector General of the Department of Transportation and the Inspector General of the Department of the Interior shall jointly begin an audit of the tribal transportation program under section 202 of title 23, United States Code (referred to in this section as the program ). (2) Review The audit under paragraph (1) shall include— (A) a review of the data collection and management processes used by the Secretary of the Interior in maintaining the national inventory of tribal transportation facilities under section 202(b)(1) of title 23, United States Code; and (B) a review of the administration of the program, including whether— (i) funding under the program is distributed in a timely manner that is consistent with statutory and regulatory requirements; and (ii) the current procedures and practices used by the Secretary of the Interior to allocate funding for tribal transportation facilities (as defined in section 101(a) of title 23, United States Code) under the program are transparent and consistently applied. (3) Report Not later than 1 year after the date of enactment of this Act, the Inspector General of the Department of Transportation and the Inspector General of the Department of the Interior shall jointly submit a report describing the results of the audit under paragraph (1) to— (A) the Committee on Environment and Public Works of the Senate; (B) the Committee on Indian Affairs of the Senate; (C) the Committee on Transportation and Infrastructure of the House of Representatives; and (D) the Committee on Natural Resources of the House of Representatives. (c) Comptroller General review (1) In general The Comptroller General of the United States (referred to in this subsection as the Comptroller General ) shall initiate an audit of the program. (2) Review The audit under paragraph (1) shall include an examination of— (A) the funding formula of the program under section 202(b)(3) of title 23, United States Code, including key decisions made over time that have affected the methods used to determine tribal shares of program funds; (B) whether, for purposes of allocating funding under section 202 of title 23, United States Code, the allocation methodology under subpart D of part 1000 of title 24, Code of Federal Regulations (as in effect on the date of enactment of this Act), provides an accurate and reliable estimate of tribal population; (C) potential alternatives to the methodology described in subparagraph (B) for purposes of allocating funding under section 202 of title 23, United States Code; (D) how the Secretary of the Interior ensures that— (i) the program is consistently administered; and (ii) program decisions are transparently and consistently made; and (E) the potential effects of having the program administered solely by the Secretary of the Interior or the Secretary of Transportation. (3) Report Not later than 540 days after the date of enactment of this Act, the Comptroller General shall submit a report describing the results of the audit under paragraph (1) to— (A) the Committee on Environment and Public Works of the Senate; (B) the Committee on Indian Affairs of the Senate; (C) the Committee on Transportation and Infrastructure of the House of Representatives; and (D) the Committee on Natural Resources of the House of Representatives. (d) Obligation limitations Notwithstanding section 1102(a) of the FAST Act ( 23 U.S.C. 104 note; Public Law 114–94 ) or any other provision of law providing a limitation on obligations for Federal-aid highway and highway safety construction programs for a fiscal year, amounts made available to carry out the tribal transportation program under section 202 of title 23, United States Code, for a fiscal year shall not be subject to the obligation limitation for that fiscal year. 3. Transportation facility eligibility (a) Definitions In this section: (1) Inventory The term inventory means the national inventory of tribal transportation facilities under section 202(b) of title 23, United States Code. (2) Proposed road The term proposed road means a proposed road or facility (as defined in section 170.5 of title 25, Code of Federal Regulations (as in effect on the date of enactment of this Act)) that is a road, including a primary access route (as defined in that section). (3) Secretary The term Secretary means the Secretary of the Interior. (b) Deadline Not later than 180 days after the date of enactment of this Act, and not less frequently than every 3 years thereafter, the Secretary and the Secretary of Transportation shall require each Indian tribe that intends to include a proposed road in the inventory to complete and submit for approval the documentation and other information required under section 170.443(a) of title 25, Code of Federal Regulations (as in effect on November 6, 2019), for the proposed road. (c) Report (1) In general Not later than 180 days after each deadline described in subsection (b), the Secretary shall submit to the Committee on Indian Affairs of the Senate and the Committee on Natural Resources of the House of Representatives a report describing the proposed roads approved to be included in the inventory. (2) Requirements Each report under paragraph (1) shall include, for each Indian reservation, Alaska Native village, or other recognized Indian community (including former Indian reservations in the State of Oklahoma)— (A) the mileage of proposed roads included in the inventory before the deadline described in subsection (b); (B) the mileage of proposed roads approved to be included in the inventory on the basis of the documentation and other information submitted under subsection (b); and (C) an estimate, based on the documentation and other information submitted under subsection (b), of the construction and maintenance costs of the proposed roads described in subparagraph (B). 4. Tribal highway safety partnerships Section 402 of title 23, United States Code, is amended— (1) in subsection (b)(1)(C), by striking by and inserting by, or on behalf of, ; and (2) in subsection (h)(2)— (A) by striking Notwithstanding and inserting the following: (A) In general Notwithstanding ; and (B) by adding at the end the following: (B) Cooperation In accordance with section 202(a)(9)(A), an Indian tribe may use amounts described in subparagraph (A) in cooperation with States, counties, and other local subdivisions for highway safety purposes. . 5. Nationally significant Federal lands and tribal projects program Section 1123 of the FAST Act ( 23 U.S.C. 201 note; Public Law 114–94 ) is amended— (1) in subsection (c)(3), by inserting for a project that is to be carried out by an eligible entity that is not an Indian tribe, before having an ; and (2) in subsection (g)(1)— (A) by striking shall be up to and inserting the following: shall be— (A) for a project carried out by an Indian tribe, up to 100 percent; and (B) for a project not described in subparagraph (A), up to . 6. Tribal transportation advisory committee (a) Establishment Subject to the availability of appropriations, not later than 180 days after the date of enactment of this Act, the Secretary of the Interior (referred to in this section as the Secretary ) shall establish within the Bureau of Indian Affairs a committee, to be known as the Tribal Transportation Advisory Committee (referred to in this section as the Committee ), which shall replace the Tribal Transportation Program Coordinating Committee established under sections 170.135 through 170.137 of title 25, Code of Federal Regulations (as in effect on the date of enactment of this Act). (b) Membership (1) In general The Committee shall be composed of— (A) the Secretary (or a designee); (B) representatives of a diverse group of Indian tribes, including— (i) not fewer than 1 tribal representative from each region of the Bureau of Indian Affairs; and (ii) not more than 3 tribal representatives from any 1 region of the Bureau of Indian Affairs; (C) State and local representatives; (D) not fewer than 1 representative of the Bureau of Indian Affairs; (E) not fewer than 1 representative of the Department of Transportation; and (F) other members, as determined to be appropriate by the Secretary in consultation with the Committee. (2) Appointment The Secretary shall appoint each member of the Committee. (3) Chairperson The Secretary (or a designee) shall serve as chairperson of the Committee. (c) Terms Except for the Secretary, each member of the Committee shall serve for a term of 3 years. (d) Vacancies Any vacancy occurring in the membership of the Committee— (1) shall be filled in the same manner as the original appointment was made; and (2) shall not affect the power of the remaining members to carry out the duties of the Committee. (e) Duties (1) In general The Committee shall— (A) regularly provide advice to the Secretary on and, subject to the discretion of the Committee, study issues relating to tribal transportation, including— (i) the tribal transportation program under section 202 of title 23, United States Code, including— (I) the funding formula used to determine tribal shares under the tribal transportation program; and (II) the national tribal transportation facility inventory established under subsection (b)(1) of that section; (ii) the road maintenance program managed by the Bureau of Indian Affairs; (iii) grants awarded to Indian tribes for public transportation using amounts made available under section 5311(c)(1) of title 49, United States Code; (iv) transportation safety within tribal reservations, including— (I) traffic safety; and (II) safety partnerships with Federal, State, and local authorities; (v) the availability of transportation funding in the event of a natural disaster; and (vi) any other policies or procedures related to tribal transportation, as determined by the Committee; and (B) carry out the duties of the Tribal Transportation Program Coordinating Committee established under sections 170.135 through 170.137 of title 25, Code of Federal Regulations (as in effect on the date of enactment of this Act). (2) Best practices and recommendations The Committee may, on a periodic basis, develop and present to the Secretary best practices and recommendations regarding the issues described in clauses (i) through (vi) of paragraph (1)(A). (3) Subcommittees The Committee may establish any subcommittees necessary to carry out the duties of the Committee. (f) Report to Congress Not later than 180 days after receiving any recommendations from the Committee under subsection (e)(2), the Secretary shall submit to the relevant committees of Congress a report describing those recommendations. (g) Federal Advisory Committee Act Except as otherwise provided in this section, the Federal Advisory Committee Act (5 U.S.C. App.) shall apply to the Committee and each subcommittee of the Committee. (h) Detail of Federal employees (1) In general On request of the Committee, the Secretary may detail, with or without reimbursement, any of the personnel of the Department of the Interior or, in consultation with the Secretary of Transportation, the Department of Transportation, to the Committee to assist the Committee in carrying out the duties of the Committee. (2) Civil service status Any detail of a Federal employee under paragraph (1) shall not interrupt or otherwise affect the civil service status or privileges of the Federal employee being detailed. (i) Payment and expenses (1) Compensation Members of the Committee shall serve without pay. (2) Travel expenses Each member of the Committee shall receive, for a meeting called by the Secretary, travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code. (j) Termination The Committee, including subcommittees of the Committee, shall terminate on the date that is 10 years after the date of enactment of this Act.