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Question 10 Resolution. Regional Consultation Meetings Eastern Region July 28, 2010. Items to be covered. Background Proposed Policy/Interpretation Implementation Consultation Schedule. Background. Background.

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Question 10 Resolution

Regional Consultation Meetings

Eastern Region

July 28, 2010


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Items to be covered

  • Background

  • Proposed Policy/Interpretation

  • Implementation

  • Consultation Schedule



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Background

  • TEA-21 directed the Federal Government and Tribes to enter into negotiated rulemaking to develop a new funding formula.

    • Result was IRR Final Rule 25CFR170

    • Question 10 describes how the inventory is to be considered in the funding formula


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What is the Funding Formula

  • Formula (RNDF) contains three factors:

    • Cost to Construct (CTC);

    • Vehicle Miles Traveled (VMT); and

    • Tribal Population (POP).

  • Every road in the inventory has a calculated or default CTC and VMT

  • The available funds are assigned into the three factors as well, with 50% (CTC), 30% (VMT), and 20% (POP).

  • During the calculation of a Tribe’s share of IRR funds, each road in their inventory is reviewed and the share calculated by comparing the Tribe’s amount of CTC, VMT, and POP to the national totals.



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Q10

  • Q10 describes how the CTC and VMT of each of the roads within a Tribe’s inventory is to be considered in the calculation of the Tribe’s share of IRR funding.

  • Q10, as written in the regulations, could not be carried out due to inconsistencies within the inventory data.

  • Thus, BIA under the guidance of the DOI Solicitor, implemented Q10 to reflect all roads except for those identified as “State owned” to be considered at 100% CTC and VMT.

  • State owned roads contributed at the local match/sliding scale rate.

  • (See next slides)


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Q10 - Current interpretation (what is in Tribe’s Inventory)


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Q10 - Current interpretation (what is in Tribe’s Inventory)


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Q10 Background

  • Q10 became a major issue in Indian Country

  • The inconsistency/inability issue was directed to the IRRPCC in 2006. After more than two years of review and deliberations, they could not reach a recommendation for implementation and asked BIA and FHWA to develop a solution.

  • Formal and informal regional consultations were held to receive input from Tribes

  • BIA and FHWA leadership committed to providing a solution


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Q10

Proposed Policy/Interpretation

Section by Section Review


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Proposed Solution

  • Developed jointly by FHWA, BIA, DOI Solicitor, and FHWA Federal Lands’ Counsel

  • Supported by leadership of both agencies

  • Will be issued as a directive to the IAM


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Applicability of BIA and Tribal Roads

  • For the purposes of this interpretation:

    • IRR Program funding, made available through Chapter 2 of Title 23, is deemed as the only direct source of funding for BIA and tribally owned roads; and

    • BIA and tribal roads cannot be deemed as being directly available to Chapter 1 funds unless done so by earmark or some other special selection process.

  • As a result, they are not subject to the restrictions set in place by this directive and will continue to contribute 100% CTC and VMT in the formula calculations regardless of Functional Classification.


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Q10 Language in 25CFR170

  • 10. Do All IRR Transportation Facilities in the IRR Inventory Count at 100 Percent of their CTC and VMT?

    No. The CTC and VMT must be computed at the non-Federal share requirement for matching funds for any transportation facility that is added to the IRR inventory and is eligible for funding for construction or reconstruction with Federal funds, other than Federal Lands Highway Program funds. However, if a facility falls into one or more of the following categories, then the CTC and VMT factors must be computed at 100 percent: 

    • (1) The transportation facility was approved, included, and funded at 100 percent of CTC and VMT in the IRR Inventory for funding purposes prior to the issuance of these regulations.

    • (2) The facility is not eligible for funding for construction or reconstruction with Federal funds, other than Federal Lands Highway Program funds; or

    • (3) The facility is eligible for funding for construction or reconstruction with Federal funds, however, the public authority responsible for maintenance of the facility provides certification of maintenance responsibility and its inability to provide funding for the project.


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Q10

  • 10. Do All IRR Transportation Facilities in the IRR Inventory Count at 100 Percent of their CTC and VMT?

    No. The CTC and VMT must be computed at the non-Federal share requirement for matching funds for any transportation facility that is added to the IRR inventory and is eligible for funding for construction or reconstruction with Federal funds, other than Federal Lands Highway Program funds.


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Interpretation

  • Federal funds eligibility as used in this regulation means two things:

    • The funds are Title 23, section 104 funding that FHWA makes available to States for use on Federal-aid highway system roads as defined in 23 USC 101(5); and

    • The road is defined, per 23 USC 101 (5) as a Federal-aid highway system road with a functional classification other than a local road or rural minor collector.

  • This interpretation is consistent with 23 USC 204(c), which states that before approving a project on an Indian reservation road, the Secretary must determine that the obligation of funds for such project is supplementary to and not in lieu of any obligation of a fair and equitable share of funds apportioned under section 104 of this title.


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Interpretation (cont)

  • This is a clear recognition of the distinction between Chapter One Federal-aid highway funds available to a State and Chapter Two FLHP and IRR Program funds.  

  • A facility’s eligibility for Federal Lands Highway Program Funding (FLHP) is not relevant. All routes in the IRR inventory, regardless of ownership or functional classification, are eligible for use of IRR funds. Hence the use of this term in the Final Rule strictly specifies that the FLHP funds are not to be considered in the definition of Federal funds.  

  • Therefore, non-BIA, non-tribal transportation facilities will have its percentage of CTC and VMT determined by whether it meets the definition of a Federal-aid highway system road as contained in Chapter 1 of Title 23 (see also 23 CFR 470.103).

    • If yes – percentage is non-Federal share match

    • If no – percentage is 100%

  • But there are exceptions……


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Q10

“However, if a facility falls into one or more of the following categories, then the CTC and VMT factors must be computed at 100 percent:

  • (1) The transportation facility was approved, included, and funded at 100 percent of CTC and VMT in the IRR Inventory for funding purposes prior to the issuance of these regulations.


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Interpretation

  • If the facility was in the IRR Inventory prior to 2005 and had generated 100 percent CTC and VMT for prior year IRR funding purposes, it will continue to generate 100 percent CTC and VMT regardless of ownership and class.


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Q10

(2) The facility is not eligible for funding for construction or reconstruction with Federal funds, other than Federal Lands Highway Program funds; or


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Interpretation

  • As previously described, if the facility does not meet the definition of a Federal-aid highway system road as contained in Chapter 1 of Title 23 (IE: local road or rural minor collector), it will generate 100% CTC and VMT. (see also 23 CFR 470.103)


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Q10

  • (3) The facility is eligible for funding for construction or reconstruction with Federal funds, however, the public authority responsible for maintenance of the facility provides certification of maintenance responsibility and its inability to provide funding for the project.


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Interpretation

  • Pursuant to 23 USC 116(a), which applies to the Federal-Aid Highway system, a State’s transportation department has a duty and requirement to maintain any project constructed under the provisions of Chapter One.

  • The certification by a State DOT that it is unable to provide funding for the project does not abrogate a State’s responsibility to maintain the project pursuant to 23 USC 116.


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Interpretation

  • Hence, a public authority cannot provide a statement of inability to provide funding for the purpose of generating additional IRR funding for a project on a facility. Its overall responsibility for meeting the Federal requirements of the route cannot be transferred. In addition, the IRR inventory is composed of routes and facilities and not projects.

  • Therefore, this provision cannot be carried out as written and will be rescinded until further updates to 25 CFR 170 take place.



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So what does this mean?

  • BIA and Tribal roads will continue at 100% consideration for CTC and VMT.

  • All remaining roads will be either 100% or NFS%, which will be determined by the road’s functional classification.

    • Class 3 and 5 will be at 100%, remaining at NFS%

  • IRR road system will mirror the Federal-aid system functional classifications, thus determining eligibility for federal funding

  • No letters of inability to provide funding will be allowed




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Transition Year

  • However, since the functional classifications of Class 4 and Class 5 of the FHWA system and the IRR System do not totally align, a transition of 1 year (FY2011), will take place where all Class 3,4, and 5 roads will continue to contribute CTC and VMT at 100%.



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Transition Year Work

  • Develop clear and concise definitions for Functional Classifications (to align with FHWA definitions)

  • Review and align IRR Inventory to newly defined functional classifications (specifically Class 3, 4, and 5)


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Impacts

  • Will not be known until transition year work is completed.

  • A Tribe may experience a decrease in their IRR Program share if it has:

    • significant amounts of non-BIA, non-tribal roads other than Class 3 or 5; or

    • received and provided inability statements from State DOTs.

  • But the IRR Program is a zero sum program so a Tribe’s share is also impacted by changes to other Tribes.



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Tribal Consultations

  • Formal Tribal Consultations are being scheduled in order to receive input

  • Schedule of dates and locations will be published in the Federal Register

  • Exact times and meeting locations will be provided by BIA and/or FHWA.

  • This change will be done as an Indian Affairs Manual Directive

    • Contains an expiration date of FY2012.


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Consultation Schedule


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Internal Implementation

  • This change will be carried out as an Indian Affairs Manual Directive

    • Contains an expiration date of FY2012.


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Contacts

  • Mr. LeRoy Gishi

    Chief - BIA Division of Transportation

    (202) 513-7711

    leroy.gishi@bia.gov

  • Mr. Robert Sparrow

    IRR Program Manager, FHWA

    (202) 366-9483

    robert.sparrow@dot.gov