[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: [email protected].
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 [email protected]. Vivian Philbin, Assistant
Chief Counsel, 12300 West Dakota Avenue, Lakewood, CO 80228. Telephone:
(720) 963-3445 or at [email protected].
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]
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