IRR PROGRAM COORDINATING COMMITTEE

IRR PROGRAM COORDINATING COMMITTEE MEETINGS WITH INTERIOR DEPARTMENT ACTING ASSISTANT SECRETARY-INDIAN AFFAIRS GEORGE SKIBINE AND FHWA ASSOCIATE ADMINISTRATOR JOHN BAXTER (IRR PROGRAM RECOMMENDATIONS AND SOLUTIONS) WASHINGTON, D.C. July 23, 2008 95966.1

1. Title I ISDA Contract Template Sam Thomas (Alaska Region) 1.Title I ISDA Contract Template The Interior Department has taken over two years to approve a template for use by BIA Regions and Indian Tribes for Tribes to assume the Secretary s duties for the IRR Program and BIA Road Maintenance Program under a Title I Indian Self-Determination Act (ISDA) contract and Funding Agreement; The Committee has been told by BIA officials for over a year that the template is nearly complete; Delays by BIA in the release of the template will negatively impact FY 2009 contract negotiations; Direct the Office of Self-Determination to complete and distribute the template to BIA Regions by August 1, 2008; The Office of Self-Determination should provide training on a periodic basis beginning this fall to Branch of Roads Engineers, Awarding Officials, and Tribes regarding the use of the Title I contract template in contract negotiations for Tribes to assume the Secretary of the Interior s duties for the IRR Program and, at the option of an Indian Tribe, the BIA Road Maintenance Program; The Committee wrote to Messrs. Skibine and Gidner on June 26, 2008 requesting the release of the approved template by this meeting; continued The template has not been made available to 2

BIA Regions and Tribes while a Title IV template was approved by the BIA and has been in place for over a year; there has been no training concerning the template to facilitate contract negotiations. 2. Road Inventory Field Data System (RIFDS) Update (Kirk Vinish Northwest Region; Erin Forrest Western Region) a. Regional disparities in cost-to-construct tables 2. Road Inventory Field Data System (RIFDS) Update a. Regional disparities in cost-to-construct tables CTC data tables are not updated on an annual basis in each BIA Region creating disparities in funding under the IRR Program formula; AS-IA should direct Regional Directors to have Branch of Roads staff update the CTC tables by July 15 th annually pursuant to the time requirements of 25 C.F.R. 170.444 and in accordance with the procedures in 25 C.F.R. Part 170, Appendix C to Subpart C (Question 6); b. Technical oversight/administration b. Technical oversight/administration Regional Engineers report solely to Regional Directors creating a disconnect in program administration; continued Regional Branch of Road Engineers should also report to the BIADOT Division Chief; 3

Organizational structure provides little incentive for uniform agency policies and procedures; c. Requirement for dedicated personnel on road inventory review at Regional level. c. Requirement for dedicated personnel on road inventory review at Regional level. There are disparities in personnel staffing levels among BIA Regions which results in some Regions more easily updating CTC data than others; AS-IA should require that BIA Regions establish proportional staffing levels for RIFDS updates; d. Update re: rights and responsibilities of users in www.itims.doi.gov vs. access to RIFDS within ITIMS (security clearance and background check requirements) d. Update re: rights and responsibilities of users in www.itims.doi.gov vs. access to RIFDS within ITIMS (security clearance and background check requirements) Security clearances by BIA of Tribal officials to permit them to access Tribal RIFDS data are taking far too long; What are the reasons for the processing delay (staffing or procedural issues)? Establish reasonable deadlines for BIA personnel to process security clearances of Tribal personnel. The Committee recommends that this process not exceed 90 days; Ensure that Security Awareness Training (SAT) requirements are well advertised to Tribal users; continued 4

AS-IA to direct Department officials responsible for security clearance processing to provide a written summary to BIA of the status of Tribal personnel clearances (percentages completed/pending; problem identification, recommended solutions) to improve the efficiency of the Department security clearance process; e. Technical assistance to Tribes for inventory update training. e. Technical assistance to Tribes for inventory update training. RIFDS training is currently provided solely by certain BIADOT personnel; thus opportunities for training of Tribal transportation staff are limited due to too few BIADOT personnel having the knowledge and expertise to conduct the RIFDS training; AS-IA should authorize the Tribal Technical Assistance Programs (TTAPs) to provide RIFDS training to Tribal transportation staff and to coordinate training protocols with BIADOT officials; f. Regional review teams (data Quality Assurance) verification f. Regional review teams (data Quality Assurance) verification Currently there is no Tribal involvement or input in identifying problems with RIFDS and BIA quality assurance review of RIFDS data; continued AS-IA should establish Regional RIFDS Quality Assurance Review Teams comprised of BIA, FHWA, and IRR Program Tribal representatives to examine random national RIFDS data to identify best practices and problem areas for improvement; 5

Low cost solutions should be considered to improve the integrity of data included in RIFDS; BIADOT, with the input of the IRR Program Coordinating Committee, should develop uniform criteria and review protocols for the evaluation of RIFDS data by Regional RIFDS Quality Assurance Review Teams; g. General Data Appeals (25 CFR 170.231) g. General Data Appeals (25 CFR 170.231) Tribes have expressed concern regarding general data appeals under the Part 170 regulations; AS-IA should direct BIADOT staff to provide the Committee with information relating to General Data Appeals initiated by Tribes under the IRR Program (numbers filed, numbers pending or resolved, numbers resolved at the Regional level, etc.) so that the Committee may provide input and recommendations to your office to improve the BIA s administration of data appeals. 6

3. Road Maintenance Program. (John Healy/Tim Ramirez) 3. Road Maintenance Program. Gross underfunding of BIA Road Maintenance Program negatively impacts Road and Bridge Infrastructure in Indian Country; President s FY 2009 Budget proposes a 50% reduction in BIA Road Maintenance Program (from $26 mil. to $13 mil.) Reduces safety and contributes to higher incidence of road injuries and fatalities in Indian country, as well as increasing vehicle operating costs (torn social fabric and economic loss to reservation communities); 1 Establish a supplemental Tribal budget category (separate from TPA) to fund road maintenance needs in Indian country; Educate Interior Department and OMB officials concerning the negative health consequences to Native American motorists and pedestrians, the costs to Tribal communities, and the significant reduction in roadway useful life resulting from inadequate funding of the BIA Road Maintenance Program; explain to OMB the eligible uses of BIA Road Maintenance Program funds per 25 CFR 170.803; Forces Tribes to either limit road maintenance activities to emergency road maintenance or reprogram IRR Program construction funds for road maintenance, causing a major loss in capital funding for AS-IA should direct BIA to develop better systems to report road maintenance funding needs and educate Tribal officials, including elected officials, as to the importance of maintaining and 1 In a March 2007 U.S. Department of the Interior Office of the Inspector General report concerning the BIA Road Maintenance Program (C-RR-BIA-0010-2006), the BIA estimated that the lack of road maintenance funding has contributed to a $243 million reported deferred maintenance backlog. As of 2003, the BIA estimated that funding of $120 million annually was needed to adequately maintain the 25,000 miles of only BIA system roads. 7

new construction affecting safety, law enforcement, and economic development; reporting to BIA accurate and complete road maintenance program needs. Administration proposal is contrary to statutory requirement under Title 23 that the BIA shall continue to retain primary responsibility, including annual funding request responsibility, for road maintenance programs on Indian reservations (Federal Trust Responsibility); Lost Investment failure to properly maintain improved routes significantly reduces the useful life of the route further increasing the backlog of unmet transportation needs; 5. Q 10 of Appendix C to Subpart C (Part 170 IRR Program Regulations). (Royce Gchachu Southwest Region) 5. Q 10 of Appendix C to Subpart C (Part 170 IRR Program Regulations). The Coordinating Committee presented two alternative views to Assistant Secretary-Indian Affairs Carl Artman and FHWA Associate Administrator John Baxter in January 2008 The Committee lacks consensus on Q10 issues and requests that the AS-IA respond to the issues presented at the January 2008 meeting; 8

concerning the interpretation of the IRR Program regulations relating to the issue of what routes generate 100% of Cost to Construct (CTC) and Vehicle Miles Traveled (VMT); Has the Solicitor provided his written responses to the AS-IA? The Committee requested that the AS-IA: 1) determine from the Department Solicitor whether the Part 170 regulations are being properly implemented by the BIA; and 2) determine the process by which the Department can update the Part 170 regulations; The BIA should complete its government-togovernment consultation among Tribes (BIA Regions) to ensure that all regions are aware of possible changes to the IRR Program funding formula that are under consideration by the BIA and FHWA. 6. Lack of BIA responses from prior Committee Meetings 6. Lack of BIA responses from prior Committee Meetings Of the four previous meetings held with senior BIA and FHWA officials, the Committee has received responses back to requested information from only one meeting; AS-IA provide written responses to the Committee within 45 days (by September 8, 2008) to the Committee s prior requests made to BIA; The lack of written responses impedes the effectiveness of the Committee to do its work and, of equal importance, to provide information to tribes; 9

7. Flexible Financing.(Pete Red Tomahawk) 7. Flexible Financing The Part 170 regulations authorize the use of flexible financing arrangements to finance the cost of IRR Program construction projects and use IRR Program funds as collateral for loans or bonds to finance such projects and to leverage additional funding; The AS-IA should direct BIA officials, with the input of the Coordinating Committee, to develop a model agreement between the BIA and Tribes to facilitate the use of flexible financing arrangements; The Interior Department does not, however, presently allow the incorporation of flexible financing terms and conditions in Title I or Title IV self-determination contracts and agreements; The AS-IA should direct BIADOT to provide information and training to BIA Regions and Tribes concerning the allowability and use of flexible financing arrangements in road construction projects under the IRR Program so that Tribal leaders may obtain more information concerning funding options available under the IRR Program to finance transportation projects; 10

FHWA MEETING AGENDA: 1. Status of the IRR Comprehensive National Tribal Inventory (Pete Red Tomahawk Great Plains Region) 1. Status of the IRR Comprehensive National Tribal Inventory. SAFETEA-LU mandated that the Secretary of Transportation prepare a comprehensive national inventory of transportation facilities eligible for assistance under the IRR Program and provide a report to Congress within 2 years of enactment; the inventory and report are overdue; Provide the Committee with the inventory and the report developed by DOT and presented to Congress; The Committee continues to be distressed that the IRR Program inventory is not responsive to the requirements of SAFETEA-LU; 2. Letter to Federal aid offices requesting bid tab data for CTC matrix (Erin Forrest, Western Region) 2. Letter to Federal aid offices requesting bid tab data for CTC matrix. State bid tabs do not correlate with 25 CFR Part 170 regulations concerning the manner in which IRR Program bid tabs are calculated; These discrepancies complicate the work of the BIA to interpret State bid tabs and utilize this data in the IRR Program formula; FHWA should send a letter to State DOT offices requesting that States submit data from their specification books or bid documents to FHWA to make it easier to correlate the data and organize it for use as required by the IRR Program regulations; 11

3. Road Maintenance. IRR PROGRAM ISSUES 3. Road Maintenance. The use of IRR Program construction funds for road maintenance purposes -- authorized under SAFETEA-LU nonetheless diminishes funds available to Tribes and the BIA for road construction and undermines the effectiveness of the IRR Program to address road construction project needs; Road maintenance is a safety issue; the incidence of injury and death among Native Americans is well above the national average; SAFETEA-LU requires that the Secretary of Transportation shall ensure that funding made available under [section 204(c) of Title 23] for maintenance of Indian reservation roads for each fiscal year is supplementary to and not in lieu of any obligation of funds by the [BIA] for road maintenance programs on Indian reservations. Identify alternative funding sources to augment BIA Road Maintenance Program funds (financed under the Interior, Environment and Related Agencies Appropriations bill), for the maintenance of IRR Program transportation facilities; or Increase funding to the IRR Program, above other increases being considered in reauthorization, to fund documented road maintenance needs; 2 The Committee recommends that funding for maintenance of IRR Program routes be funded in the same manner that other Federal Lands routes are maintained; The Secretary of Transportation must direct greater resources to Indian Tribes to identify and remedy the causes of highway injury and death of Native Americans; improve Federal and State funding agreements to ensure that they respect Tribal sovereignty and self-determination so that Tribes are encouraged to apply for safety funds; 2 See footnote 1. 12

4.Consistent criteria for Discretionary Grant funds (if allocated by FHWA rather than Congress) 4. Consistent criteria for Discretionary Grant funds (if allocated by FHWA rather than Congress). The last time FHWA was granted authority by Congress to allocate Public Lands Highways Discretionary Grant funds, FHWA changed the criteria by which funds would be allocated during the grant funding period; The FHWA should provide adequate notice and time to eligible grant recipients of any changes to the funding criteria; 5. Special Bridge Appropriation. 5. Special Bridge Appropriation. When Congress appropriates supplemental funding for the reconstruction, replacement, or inspection of bridges, no additional funds were made available to the IRR Bridge Program; more than 1 in 4 IRR Program Bridge is deficient; The Secretary of Transportation should consider the needs of the IRR Bridge Program when developing the Department s budget submissions, including supplemental funding requests, to Congress; The BIA estimates that the backlog of unmet need for reconstruction and rehabilitation of BIA System bridges is $212 million (2007 estimate); 13

6. Transit : IRR PROGRAM ISSUES (a) Official notification of award. (b) Request more assistance and training and G-to- G relations. (c) Contact information for each Region. (d) Tribal liaison. 6. Transit : (a) Official notification of award. (b) Request more assistance and training and G-to- G relations. (c) Contact information for each Region. (d) Tribal liaison. Award Notice - The FTA s current funding award system -- which in some cases does not issue an award notification letter to a Tribe -- is not consistent with other federal agency procedures and needs improvement. Beyond the Federal Register Notice, some Tribes have not received award letters. This leaves those tribes hanging in the balance and wondering what the next move should be, which causes a delay is services and missed opportunities for subsequent year funding. A grant award letter is the federal government s official notice of expected funding and its intent to pay for programs and activities. The award letter procedure is a government-wide practice and should be a mandatory requirement for FTA. Grant Award System (TEAM) The TEAM component of the FTA grant award system poses an undue administrative burden on tribal governments and is a duplication of activities. Tribal governments simply do not have the staff to carry out extra functions as many tribal Beyond the initial application and notice of award, there should not be any additional requirements in order to receive FTA funding. Thus, the TEAM system should be eliminated for tribal governments. 14

officials wear multiple hats and operate numerous programs. Coordination and collaboration The United States has a trust responsibility to Indian Nations. All communication with tribal governments relating to the Tribal Transit Grant Program should be carried out on a government-to-government basis. Some Tribes have experienced communication problems in obtaining timely assistance from FTA officials regarding Tribal Transit grants. FTA s use of the Tribal Technical Assistance Programs (TTAP Centers) to communicate official policy is sometimes ineffective and in some cases does not make it to Tribal governments in question. Tribal governments are not units of local governments; they are sovereign nations. Therefore, all communication with affected tribal governments should be made individually with the utmost respect for which the United States is responsible; FTA needs to improve lines of communication with Tribal governments regarding the Tribal Transit Program (grant notice, pre-award, postaward) to ensure that as many Tribes as possible participate and benefit from the Program. 7. Safety 7. Safety. Improving access and awareness among Indian tribes of FHWA Safety Programs; Work with existing Tribal Transportation organizations such as ITA in outreach and training to increase the award of safety programs for Indian tribes; 15

9. Consultation. IRR PROGRAM ISSUES 9. Consultation. There is an overall lack of consultation between the Department of Transportation and Indian Tribes; The current Administration has not nominated an individual to fill the position of Deputy Assistant Secretary of Transportation for Tribal Government Affairs, authorized under SAFETEA-LU. The duties of this position include the planning, coordination, and implementation of DOT policy and programs serving Indian tribes and the coordination of Tribal transportation programs and activities in all offices and administrations of the Department. The failure to fill this position has contributed to the lack of coordination among DOT agencies and consultation with Tribes. The existing Deputy Assistant Secretary for Governmental Affairs should encourage and facilitate consultation between Indian tribes and the following DOT agencies: 1. FAA; Federal Aviation Aministration 2. FTA; Federal Transit Admiistration 3. NHTSA; National Highway Traffic Safety Admin 4. FLH; Federal Lands Highways 5. MARAD; Maritime Administration 6. FRA; Federal Railroad Admin. 7. FMCSA; Federal Motor Carrier Safety Admin 8. OIG; Office of Inspector General 9. PHMSA; Pipeline and Hazardous Materials Safety Admin 10.RITA; Research and Innovation Technology Administration 11.SLSDC; Saint Lawrence Seaway Development Corporation 12.STB; Surface Transportation Board 13.OST; Office of the Secretary of Transportation by filling the Deputy Assistant Secretary of Transportation for Tribal Government Affairs 16

Respectfully submitted on behalf of the IRR Program Coordinating Committee by Tribal Committee members present in Washington, D.C. this 23rd day of July 2008. (Southwest Region and IRRPCC Chair) (Southern Plains Region and IRRPCC Vice-Chair) (Great Plains Region) (Midwest Region) (Rocky Mountain Region) (Eastern Oklahoma) (Alaska Region) (Western Region) (Northwest Region) (Navajo Region) (Eastern Region) (Pacific Region) 95996.1 95966.1