The FAST Act: New Department of Transportation Tribal Self-Governance Program and Tribal Transportation Provisions Self-Governance Communication and Education (SGCE) Hobbs, Straus, Dean & Walker, LLP January 11, 2016 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 1
FAST Act: Introduction • The Fixing America's Surface Transportation Act (FAST Act) was enacted on December 4, 2015 as PL 114-94. • It is a 5 year surface transportation authorization which: – Extends Self-Governance to the Department of Transportation; – Increases funding for the Tribal Transportation and Tribal Transit Programs; – Establishes a new grant program for “nationally significant” federal lands and tribal transportation projects; and – Addresses other tribal transportation matters. HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 2
Webinar Outline and Objectives • Provide an overview of federal transportation programs and funding • Summarize tribal transportation elements and funding levels from the FAST Act • Provide orientation to key concepts in the extension of SG to DOT • Explore next steps in the implementation of the SG extension HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 3
The FAST Act and Federal Investment in Transportation Infrastructure • Legislation reauthorizes Surface Transportation Programs and Funding • Funding Mechanism: Federal Highway Trust Fund • Revenue Source: Federal Gas Tax • History of Inequity: Funding to State DOTs, Tribes Left Out until recently HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 4
The FAST Act and Federal Investment in Transportation Infrastructure • 1998 – TEA-21 – Shift In Approach – All Tribes Eligible for Roads Program and ISDEAA Applies to Roads Program – Negotiated Rulemaking on Funding Formula and Program Rules • 2005 – SAFETEA-LU - Momentum Accelerates – Significant Funding Increases for tribes – Broadening of tribal access to Program Authority – Expansion of Tribal Authority and Flexibility (ISDEAA extended to FHWA) HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 5
ARRA, MAP-21 and FAST Act • ARRA - Significant Infusion of Federal Funding – Tribes Demonstrate Capacity • ARRA Introduces New Oversight Requirements • MAP-21 – The Numbers Look the Same – But Overall Funding to tribes Decreased – Tribes Chasing Dollars and Agreements • Competitive Grants for Safety Program, TIGER • Multiple agreements: TTP; FTA, Others • FAST Act – Streamlining and Accountability HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 6
FAST Act: Overview • Five-year surface transportation authorization which: – Extends Self-Governance to the Department of Transportation; – Increases funding for the Tribal Transportation and Tribal Transit Programs; – Establishes a new grant program for “nationally significant” federal lands and tribal transportation projects; and – Addresses other tribal transportation matters. HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 7
Tribal Transportation Program (TTP) The FAST Act provides an initial $15 million increase above the MAP-21 funding level with a $10 million increase each fiscal year thereafter. (Sec. 1101) FY FY FY FY FY FY 2015 2016 2017 2018 2019 2020 $450 $465 $475 $485 $495 $505 million million million million million million HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 8
Bridge Set Aside from TTP The FAST Act increases the funding set aside for the Tribal Transportation Facility Bridges program from 2 % (under MAP-21) to 3 %. (Sec. 1118) HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 9
PM & O Takedown from TTP The FAST Act reduces the Program Management and Oversight (PM&O) takedown for the administrative expenses of BIA and the Federal Highway Administration from 6 % (MAP-21) to 5 %. (Sec. 1118) HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 10
New TTP Data Collection and Reporting Requirements The FAST Act requires tribes to report the name, description, and status of projects and activities carried out the preceding fiscal year with their TTP funds as well as an estimate of the number of jobs created and retained by these projects and activities. (Sec.1117) HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 11
Tribal Transit Program • The FAST Act provides an initial $5 million increase above the MAP-21 funding level to the formula part of the Tribal Transit program. • The discretionary amount remains the same as the MAP-21 level. (Sec. 3007) FY FY FY FY FY FY 2015 2016 2017 2018 2019 2020 $25 $30 $30 $30 $30 $30 million million million million million million $5 $5 $5 $5 $5 $5 million million million million million million HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 12
High Priority Projects Program • Under MAP-21, the Tribal High Priority Projects program (which provided funds to tribes with insufficient formula funding to construct their priority transportation projects) was changed to become a stand-alone program subject to the yearly appropriations process. • No funds were ever appropriated for it under MAP-21. The FAST Act did not reauthorize it. HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 13
Nationally Significant Projects Program • The FAST Act authorizes a new $100 million per fiscal year grant program to construct, reconstruct, or rehabilitate “nationally significant” Federal Lands and tribal transportation projects. • Funding for this new grant program will be subject to the yearly appropriations process. (Sec. 1123) HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 14
Nationally Significant Projects Program • Eligible projects must have an estimated cost of no less than $25 million. A higher priority will be given to projects with an estimated cost of $50 million or more. • The federal cost share is up to 90 %. A higher priority will be given to projects with a greater local match percentage. HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 15
Safety • No new funding for tribal transportation safety programs • Requires the Secretary of DOT to provide two tribal transportation safety reports to Congress. (Sec. 1117) – 1: How To Improve Tribal Government Transportation Safety Data – 2: Options to improve safety on public roads on Indian reservations. HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 16
Tribal Transportation Self-Governance Program • The FAST Act requires DOT to establish a tribal transportation self-governance program modeled largely on Title V of the ISDEAA. It will extend to all programs available to tribes within the DOT (e.g., it will allow tribes to include TTP funding, transit funding, discretionary grant funds, and federal-aid funds transferred by a state agency in their funding agreements ). • The FAST Act requires the development of regulations pursuant to a negotiated rulemaking process, thus providing tribes an opportunity to shape the program's implementing regulations. (Sec. 1121) HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 17
Establishment “… the Secretary shall establish and carry out a program to be known as the tribal transportation self-governance program.” HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 18
Eligibility • Tribe shall be eligible to participate if they: (1) request participation by resolution or other official action by the governing body of the tribe; (2) demonstrate financial stability and financial management capacity for the past three years, and (3) demonstrate transportation program management capacity. HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE AK 19
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