Department of Transportation to Establish Negotiated Rulemaking Committee for
Tribal Transportation Self-Governance Program; Nominations and Comments Requested
On April 25, 2016, the Department of Transportation (DOT) Federal Highway Administration (FHWA) will publish a notice in the FEDERAL REGISTER announcing its intent to establish a negotiated rulemaking committee to develop a proposed rule to carry out the Tribal Transportation Self-Governance Program (TTSGP). The inclusion of the TTSGP in the recent transportation reauthorization act (the FAST Act, PL 114-94) represents a landmark expansion of self-governance to a federal agency beyond the Department of the Interior and the Indian Health Service. The FAST Act requires the use of the negotiated rulemaking process to create implementing regulations for the TTSGP. We attach the pre-print of the FEDERAL REGISTER notice. Nominations for individuals to serve on the Committee and comments on the formation of the Committee are due by June 9, 2016.
Background. Under the TTSGP, tribes will be able to obtain all of their transportation funds (including not only their Tribal Transportation Program funds, but also transit, Federal-aid and other DOT funds) under one self-governance agreement. This will greatly streamline administrative procedures and help tribes to place safe and reliable transportation infrastructure on the ground and into operation faster and more cost effectively. (See our General Memorandum 15-082 of December 11, 2015.) The fact that the FAST Act requires the use of the negotiated rulemaking process to create implementing regulations for the TTSGP is key: negotiated rulemaking is a process by which a committee of representatives of the interests most affected by the rulemaking directly participates with the federal agency and negotiates the provisions of the proposed regulations.
Committee Composition and Formation. The Committee will be composed of federal and tribal officials with a Designated Federal Official, and may also include a neutral professional facilitator. The FHWA states that tribal Committee membership must be tribal government representatives (elected officials of tribal governments or their designated employees with authority to act on their behalf), a majority of whom shall be nominated by and be a representative of Indian tribes with existing Title 23 U.S.C. funding agreements with the DOT. FHWA expects that the Committee will be composed of one tribal representative from each of the 12 Bureau of Indian Affairs Regions, along with a lesser number of federal representatives. To the maximum extent possible, FHWA will consider geographical location, size, and existing transportation and self-governance experience, in selecting tribal committee representatives. Additional tribal representatives will be considered if the Secretary believes that it would result in better serving tribal interests. In order to achieve as much tribal diversity and representation as possible, the Secretary also invites nominations from intertribal consortia and tribal organizations. The total Committee membership is expected to be no more than 25 members.
Committee Responsibilities. The Committee is to develop proposed regulations to carry out the TTSGP. The regulations will include details on: eligibility criteria; the contents of program compacts and annual funding agreements including funding types; roles and responsibilities of tribes and the federal government; length of terms; redesign and consolidation; retrocession; and termination. In addition, the Committee will review and include cost principles, monitoring, waivers, and the applicability of the Indian Self-determination and Education Assistance Act. The FHWA estimates that the Committee will meet approximately
10 times over the course of 10-12 months, with the majority of the meetings to be held in Albuquerque, New Mexico. The meetings are expected to last three to four days each. Committee members will not receive pay for their membership, but will be compensated for travel and per diem expenses while performing official committee business. Because of the scope and complexity of the tasks at hand, Committee members must be able to invest considerable time and effort in the negotiated rulemaking process. Committee members must be able to attend Committee meetings, work on Committee work groups, consult with their constituencies between Committee meetings, and negotiate in good faith toward a consensus recommendation on issues before the Committee.
Conclusion. The enactment of the FAST Act represents a significant step forward for tribal self-determination. We will be closely following the negotiated rulemaking process for the Department of Transportation Tribal Self-Governance Program. Please let us know if you are interested in participating in that rulemaking or if you would like to be included in our shared-cost advocacy and reporting related to that rulemaking process.