Tribal Transportation Self-Governance Program

Gregory G. Nadeau
Federal Highway Administration
25 April 2016

[Federal Register Volume 81, Number 79 (Monday, April 25, 2016)]
[Notices]
[Pages 24158-24161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09496]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-2016-0002]
RIN 2125-AF70


Tribal Transportation Self-Governance Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of intent to establish the Tribal Transportation Self 
Governance Program Negotiated Rulemaking Committee; request for 
comments and nominations.

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SUMMARY: The FHWA is announcing its intent to establish a negotiated 
rulemaking committee to develop a proposed rule to carry the Tribal 
Transportation Self-Governance Program (TTSGP) as required by Section 
1121 of the Fixing America's Surface Transportation (FAST) Act. The 
FHWA will select the tribal representatives for the committee from 
among elected officials of tribal governments (or their designated 
employees with authority to act on their behalf), acting in their 
official capacities and whose tribes have existing Title 23 U.S.C. 
funding agreements with the Department. To the maximum extent possible, 
FHWA will consider geographical location, size, and existing 
transportation and self-governance experience, in selecting tribal 
committee representatives. Per the FAST Act, the committee will assist 
in the development of a Notice of Proposed Rulemaking that contains the 
proposed regulations needed to implement the TTSGP.

DATES: Nominations from tribes for membership on the negotiated 
rulemaking committee and comments

[[Page 24159]]

on the establishment of this committee, including additional interests 
other than those identified in this notice, must be postmarked or faxed 
no later than June 9, 2016.

ADDRESSES: You may submit comments identified by the docket number 
FHWA-2016-0002 by any one of the following methods:
    Fax: 1-202-493-2251;
    Mail: U.S. Department of Transportation, Docket Operations, M-30, 
West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., 
Washington, DC 20590;
    Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays; or
    Electronically through the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting 
comments. All submissions must include the agency name, docket name and 
docket number or Regulatory Identification Number for this rulemaking 
(2125-AF70). Note that all comments received will be posted without 
change to http://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
U.S. Department of Transportation, Docket Operations, M-30, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., 
Washington, DC 20950, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

Submission of Nominations

    Send nominations to the Designated Federal Official, at the 
following address: Robert W. Sparrow, Director--Office of Tribal 
Transportation Program, Federal Highway Administration, Room E61-314, 
1200 New Jersey Ave SE., Washington, DC 20590. Or email to: FHWA-TTSGP@dot.gov.

Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. The DOT posts these 
comments, without edit, including any personal information the comment 
provides, to www.regulations.gov, as described in the system of records 
notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Robert W. Sparrow, Designated Federal 
Official, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: 
(202) 366-9483 or at robert.sparrow@dot.gov. Vivian Philbin, Assistant 
Chief Counsel, 12300 West Dakota Avenue, Lakewood, CO 80228. Telephone: 
(720) 963-3445 or at Vivian.Philbin@dot.gov.

SUPPLEMENTARY INFORMATION:
I. Introduction
II. Background
III. The Concept of Negotiated Rulemaking
IV. Facilitation
V. The TTSGP Negotiated Rulemaking Committee
    A. Purpose of the Committee
    B. Committee Member Responsibilities
    C. Composition of the Committee
    D. Administrative and Technical Support
    E. Training and Organization
    F. Interests Identified Through Consultation
VI. Request for Nominations
VII. Submitting Nominations

I. Introduction

    Under the Negotiated Rulemaking Act, the purpose of the TTSGP 
Negotiated Rulemaking Committee will be to consider and discuss issues 
for the purpose of reaching a consensus in the development of a 
proposed rule for the TTSGP, as codified at 23 U.S.C. 207. The 
responsibilities/objectives of the committee are to represent the 
interests significantly affected by the proposed regulations, to 
negotiate in good faith, and to reach consensus, where possible, on a 
recommendation to the Secretary for the proposed regulations.
    Section 1121 of the FAST Act directs the Secretary to carry out 
this work through negotiated rulemaking pursuant to subchapter III of 
chapter 5 of Title 5, United States Code. This subchapter requires an 
agency head to give consideration to seven factors when determining 
whether a negotiate rulemaking is appropriate. Upon reviewing the seven 
considerations set forth in the Negotiated Rulemaking Act and in 
accordance with Section 1121 of the FAST Act, the Secretary, through 
the authority delegated to the Administrator of the Federal Highway 
Administration, has determined that negotiated rulemaking is 
appropriate.

II. Background

    Section 1121 of the FAST Act requires the Secretary to:
     Establish a negotiated rulemaking committee to negotiate 
and develop regulations on the TTSGP;
     Reflect the unique government-to-government relationship 
between Indian tribes and the United States in accordance with 
Executive Order 13175 dated November 6, 2000, the Presidential 
Memorandum on Tribal Consultations issued on November 5, 2009, and U.S. 
Department of Transportation's Tribal Consultation Plan in establishing 
a negotiated rulemaking committee;
     Ensure that the membership of the committee includes only 
representatives of the Federal Government and of tribes that currently 
have funding agreements under Title 23;
     Select the tribal representatives for the committee from 
among individuals nominated by the tribes; and
     Ensure, to the maximum extent possible, a balance of 
representation with regard to geographical location, size, and existing 
transportation and self-governance experience in selecting tribal 
committee representatives.

III. The Concept of Negotiated Rulemaking

    The negotiated rulemaking process is fundamentally different from 
the usual process for proposed regulations. Most proposed regulations 
are drafted by a Federal agency and are then published for public 
comment. Affected parties may submit comments supporting their 
positions during the public comment period without communicating with 
other affected parties. Under the negotiated rulemaking process, a 
committee of representatives of the interests that will be 
significantly affected by the rulemaking negotiates the provisions of 
the proposed regulations with the agency. Negotiated rulemaking allows 
the Federal agency and the affected interests represented on the 
committee to discuss possible approaches to various issues and to 
negotiate the content of the regulations before proposed regulations 
are published. It also allows the affected parties to share 
information, knowledge, expertise, and technical abilities and to 
resolve their concerns about the regulations before publication.
    One of the key principles of negotiated rulemaking is that 
agreement is by consensus of all of the interests and that no one 
interest or group controls or dominates the process. The Negotiated 
Rulemaking Act defines consensus as the unanimous concurrence among 
interests represented on a negotiated rulemaking committee, unless the 
committee agrees to define such term to mean a general but not 
unanimous concurrence or agrees upon another specified definition. The 
agency head, to the maximum extent possible consistent with the 
agency's legal obligations, uses the consensus of the committee as the 
basis for proposed regulations.

[[Page 24160]]

IV. Facilitation

    Experience of various Federal agencies in negotiated rulemaking has 
demonstrated that using a trained neutral person to facilitate the 
process assists all parties during negotiations to identify their real 
interest, evaluate their positions, communicate effectively, find 
common ground, and reach consensus where possible. The FHWA may use 
trained facilitators to assist with facilitating the first committee 
meeting. These facilitators may attend subsequent committee meetings 
and provide other services as required.

V. The TTSGP Negotiated Rulemaking Committee

    As required by the FAST Act, the TTSGP Negotiated Rulemaking 
Committee will be formed and will operate under the Negotiated 
Rulemaking Act.

A. Purpose of the Committee

    The committee shall develop proposed regulations to carry out the 
TTSGP in accordance with 23 U.S.C. 207. 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 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.

B. Committee Member Responsibilities

    The Committee is estimated to meet approximately 10 times. Due to 
limited availability of funding, FHWA reviewed various locations across 
the country in order to determine costs for the meetings. 
Accessibility, travel costs, per diem rates and the number of expected 
travelers were all considered. As a result of location (close proximity 
to three Bureau of Indian Affairs regions this reducing travel and 
overall per diem rates), it is expected that a majority of the meetings 
will be held in Albuquerque, New Mexico. However, other meetings may be 
held in locations across Indian Country as long as the overall meeting 
costs are equal to or less than Albuquerque and the location is 
approved by the committee. The meetings are expected to last 3 to 4 
days each. Committee members will also be expected to participate in 
other regional tribal meetings to present status reports of the 
committee's activities. The Committee's work is expected to occur over 
the course of 10-12 months.
    Committee members will not receive pay for their membership, but 
will be compensated for travel and per diem expenses while performing 
official committee business, consistent with the provisions of 5 U.S.C. 
568(c) and Federal travel regulations. Funding for additional travel or 
caucusing efforts may be available but only after the approval of the 
Designated Federal Official. Alternate members will not be permitted to 
represent those individuals appointed by the Secretary without prior 
written agreement from the Department. An appointed committee member 
may be removed and replaced if that committee member fails to attend 
two consecutive meetings or fails to attend a total of four committee 
meetings. The resulting vacancy would be filled in the same manner as 
the original appointment was made.
    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. 
Because of the complexity of the issues under consideration, as well as 
the need for continuity, the FHWA reserves the right to replace any 
member who is unable to fully participate in the committee's meetings.

C. Composition of the Committee

    The FHWA is seeking nominations for tribal representatives to serve 
on the committee. Nominees should be elected officials of tribal 
governments (or their designated employees with authority to act on 
their behalf), acting in their official capacities individuals 
nominated by and identified as representatives of tribes and whose 
tribes have with existing Title 23 U.S.C. funding agreements with the 
Department. Nominees should have a demonstrated ability to communicate 
well with groups about the interests they will represent. Tribal 
committee membership must be tribal government representatives, a 
majority of whom shall be nominated by and be a representative of 
Indian tribes with existing funding agreements under this title.
    The FAST Act requires FHWA to ensure that the various interests 
affected by the proposed regulations be represented on the negotiated 
rulemaking committee. In selecting members, FHWA shall consider whether 
the interest represented by a nominee will be affected significantly by 
the final products of the committee, whether that interest is already 
adequately represented by other tribal nominees, and whether the 
potential addition would adequately represent that interest.
    If nominations received in response to this notice do not 
adequately meet the statutory requirements for tribal committee 
membership, or do not represent the interests that will be 
significantly affected by the regulations, FHWA may add representatives 
of its own choosing. The FHWA's decisions regarding the addition of 
representatives will be based on: Meeting the requirements of the Act; 
achieving a balanced committee; and assessing whether an interest will 
be affected significantly by the final rule, whether that interest is 
already adequately represented by tribal nominees, and whether the 
potential addition would adequately represent that interest.
    The total committee membership is expected to be no more than 25 
members in accordance with Section 565(b) of the Negotiated Rulemaking 
Act.

D. Administrative and Technical Support

    The FHWA Office of Federal Lands Highway will provide technical 
support for the committee. This office will arrange meeting sites and 
accommodations, arrange travel for tribal committee members, ensure 
adequate logistical support (equipment, personnel, etc.) at committee 
meetings, provide committee members with all relevant information, 
distribute written materials, ensure timely reimbursement of authorized 
expenses for committee members, maintain records of the committee's 
work, and support the committee as otherwise required.

E. Training and Organization

    At the first meeting of the TTSGP Negotiated Rulemaking Committee, 
a neutral facilitator will provide training on negotiated rulemaking, 
interest-based negotiations, consensus-building, and team-building. In 
addition, at the first meeting, committee members will make 
organizational decisions concerning protocols, scheduling, and 
facilitation of the committee. All committee members must attend the 
first meeting. Attendance at all subsequent meetings is mandatory as 
well unless a written excused absence is obtained from the Designated 
Federal Official.

[[Page 24161]]

F. Interests Identified Through Consultation

    A key principle of negotiated rulemaking is that agreement is by 
consensus of all of the significantly affected interests. Section 562 
of the Negotiated Rulemaking Act defines the term ``interest'' as 
``with respect to an issue or matter, multiple parties which have a 
similar point of view or which are likely to be affected in a similar 
manner.'' In making the selection of the committee members, all effort 
will be made so as to result in a geographically diverse committee. In 
addition, the magnitude of program size as well as experience in 
transportation and self-governance will be considered in the committee 
selections so as to identify and include all significantly affected 
interests.
    There may be other interests not yet identified that will be 
significantly affected by the regulations. The Department is accepting 
comments until the date listed in the DATES section of this notice on 
the identification of any other interests that may be significantly 
affected by the proposed regulations.

VI. Request for Nominations

    Under the requirements stated in the Background section, the 
Secretary invites tribes to nominate tribal primary representatives to 
serve on the committee and tribal alternates to serve when the 
representative is unavailable. It is expected that the committee will 
be composed of one tribal representative from each of the 12 BIA 
Regions, along with a lesser number of Federal representatives. 
Additional tribal representatives will be considered if the Secretary 
believes that it would result in better serving tribal interests. 
Although each federally recognized tribe that has a funding agreement 
under Title 23 may nominate a representative and alternate for the 
committee, it is strongly encouraged that all nominating tribes within 
a BIA Region agree to nominate and thus support one primary 
representative and one alternate for that Region. Because committee 
membership should reflect the diversity of tribal interests, tribes 
should nominate representatives and alternates who will:
     Have knowledge of existing self-governance regulations, 
policies, and procedures;
     Be able to represent the tribe(s) with the authority to 
embody tribal views, communicate with tribal constituents, and have a 
clear means to reach agreement on behalf of the tribe(s);
     Be able to negotiate effectively on behalf of the tribe(s) 
represented;
     Be able to commit the time and effort required to attend 
and prepare for meetings; and
     Be able to collaborate among diverse parties in a 
consensus-seeking process.
    In order to achieve as much tribal diversity and representation as 
possible, the Secretary also invites nominations from intertribal 
consortia and tribal organizations as well. Nominees of these 
interests, like the proportionate-share nominees, must meet the 
criteria of this section.
    If anyone believes their interests will not be adequately 
represented by the interests noted above, they must demonstrate and 
document that assertion through an application. The FHWA requests 
comments and suggestions regarding its tentative identification of 
affected interests.

VII. Submitting Nominations

    The FHWA will consider only nominations for tribal committee 
representatives nominated through the process identified in this 
Federal Register notice. Nominations received in any other manner or 
for Federal representatives will not be considered. Only the Secretary 
may appoint Federal employees to the committee.
    Nominations must include the following information about each 
tribal committee member nominee:
    (1) The nominee's name, tribal affiliation, job title, major job 
duties, and employer business address, telephone number, and email 
address;
    (2) The tribal interest(s) to be represented by the nominee (see 
section V of this notice) and whether the nominee will represent other 
interest(s) related to this rulemaking, as the tribe may designate;
    (3) A resume reflecting the nominee's qualifications and experience 
in transportation, the negotiated rulemaking process, and existing 
self-governance regulations; and
    (4) A brief description of how they will represent tribal views, 
communicate with tribal constituents, and have a clear means to reach 
agreement on behalf of the tribe(s) they are representing. 
Additionally, a statement whether the nominee is only representing one 
tribe's views or whether the expectation is that the nominee represents 
a group of tribes.
    To be considered, nominations must be received by the close of 
business on the date listed in the DATES section, at the location 
indicated in the ADDRESSES section. Nominations and comments received 
will be available for inspection at the address listed above from 8 
a.m. to 4 p.m., Monday through Friday, except Federal holidays.

    Issued on: April 18, 2016.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
[FR Doc. 2016-09496 Filed 4-22-16; 8:45 am]
 BILLING CODE 4910-22-P