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MEMORANDUM OF AGREEMENT BETWEEN THE BUREAU OF INDIAN AFFAIRS AND
THE FEDERAL HIGHWAY ADMINISTRATION FOR THE ADMINISTRATION OF
EMERGENCY RELIEF AVAILABLE UNDER 23 U.S.C. 125 FOR FEDERAL
ROADS OFF THE FEDERAL-AID SYSTEM

The purpose of this agreement is to establish interagency procedures through which the Federal Highway Administration (hereinafter referred to as the FHWA) and the Bureau of Indian Affairs (hereinafter referred to as the BIA) will administer emergency relief for Federal roads not on the Federal-aid system available under 23 U.S.C. 125, and

WHEREAS, the Secretary of Transportation (hereinafter referred to as the Secretary) acting through the FHWA, is authorized to expend monies from an emergency fund authorized under 23 U.S.C. 125 for the repair or reconstruction of Indian reservation roads and bridges which the Secretary shall find have suffered serious damage as the result of a natural disaster over a wide area or catastrophic failure from any cause (such finding actions being referred to, hereinafter, as Finding), and

WHEREAS, authority to make a Finding for Federal agencies for Indian reservation roads and bridges as defined in 23 U.S.C. 101(a) has been delegated to the Regional Federal Highway Administrator in Regions 8 and 10 and the Regional Engineer in Region 15 (these Regional Administrators and Regional Engineer being referred to, hereinafter, as the RFHA), and

WHEREAS, the BIA may from time-to-time need emergency relief for Indian reservation roads and bridges not on the Federal-aid system (hereinafter being referred to as Federal roads),

NOW WITNESSETH that the BIA and FHWA do hereby mutually agree as follows:

1. GENERAL

  1. Indian reservation roads and bridges not on the Federal-aid system eligible for emergency relief under 23 U.S.C. 125 will be limited to Indian reservation roads and bridges that are on the Indian Road System (commonly called the BIA system), except;
  2. WHERE the President does not make a Major Disaster Declaration under the Disaster Relief Act of 1974 (P.L. 93-288) for any area(s) within an Indian reservation, FHWA will evaluate tribal roads and bridges within such area(s) damaged by natural disasters or catastrophic failures for eligibility for emergency relief under 23 U.S.C. 125 in accordance with the policies and procedures of FHPM 6-9-16-2, and

    (1) Inspection teams assessing damage to tribal roads and bridges will include a representative(s) of the individual tribe(s) which owns the damaged facility in addition to FHWA and BIA representatives.

    (2) If damage is found to be eligible for emergency relief funding: (a) the BIA will act on behalf of the individual Indian tribe(s) and will include provisions for tribal roads and bridges with all requests and submittals under this agreement; (b) the BIA will administer repair and reconstruction of tribal roads and bridges in full accordance with the terms of this agreement as they apply to roads and bridges on the Indian Road System; and (c) funding for repair or reconstruction of tribal roads and bridges will be handled through obligational authority and liquidating cash transfers to the BIA in accordance with the transfer procedures of Section 6, herein, regardless of whether BIA or the individual Indian tribes) performs and/or administers the work.

  3. The policies, procedures, and program guidance established in the Federal-Aid Highway Program Manual, Volume 6, Engineering and Traffic Operations; Chapter 9, Special Programs; Section 16, Emergency Relief Program; Subsection 2, Procedures for Federal Agencies for Federal Roads (hereinafter referred to as FHPM 6-9-16-2) will be followed in the administration of emergency relief between the FHWA and the BIA for Federal roads. By attachment as Appendix A, FHPM 6-9-16-2 is hereby made a part of this agreement.


  4. A Finding of eligibility for emergency relief requires that serious damage has occurred to Federal roads as the result of (1) a natural disturbance causing serious damage to roads over a wide area, or (2) a catastrophic failure. It is understood that the term "wide area" can include areas outside Indian reservation boundaries and can include roads other than Federal roads.


  5. Emergency funds are available for reimbursement of costs directly attributable and allocable to preliminary engineering, construction engineering, and repair/reconstruction costs on individual emergency relief projects.


  6. Coordination between FHWA and the BIA will be as follows for emergency relief actions under the terms of this agreement:
  7. (1) The BIA area offices located in Aberdeen, South Dakota; Albuquerque, New Mexico; Anadardo, Oklahoma; Muskogee, Oklahoma; Window Rock, Arizona; Phoenix, Arizona; Sacramento, California; and Billings, Montana; will coordinate with FHWA Region 8.

    (2) The BIA area offices located in Portland, Oregon, and Juneau, Alaska, will coordinate with FHWA Region 10.

    (3) The BIA area offices located in Minneapolis, Minnesota, and Washington, D.C., will coordinate with FHWA Region 15.

  8. The RFHAs and the BIA Area Director (hereinafter referred to as AD) will designate emergency relief coordinators (hereinafter referred to as ERFO Coordinators) in their respective regions and areas to be responsible on a continuing basis for the overall coordination of emergency relief.
  9. Projects may be funded by a combination of emergency relief monies covering work eligible for emergency relief and other funds covering work not eligible for emergency relief.
  10. The Director, Office of Federal Highway Projects in FHWA Regions 8 and 10 or the Regional Engineer for FHWA Region 15 will be the contracting officer for any project for which FHWA agrees to perform construction engineering regardless of whether the project is financed with emergency relief funds or emergency relief funds combined with other funds.
  11. All emergency relief work will be subject to the inspection and approval of the RFHA.

2. NOTIFICATION, DAMAGE ASSESSMENT, AND FINDING

  1. Notification - When it appears that damage or destruction of a nature, and from an event, that will justify repair or reconstruction with emergency relief monies is occurring or has occurred to Federal roads, the BIA ERFO Coordinator will promptly notify the FHWA ERFO Coordinator by telephone that the BIA intends to apply for emergency relief and request that a Finding be made. The telephone notification will be followed by a written notification from the AD to the RFHA.
  2. (l) The decision to notify FHWA will be made by the AD. This decision will be made only after it is fairly clear that the conditions described in Section lc have developed.

    (2) In addition to a statement that the BIA intends to apply for emergency relief and a request that a Finding be made, the notification should describe (a) the Indian reservation(s) where damage has occurred; (b) occurrence date(s); (c) the general location and extent of affected Indian reservation area(s); (d) type(s) of damage; (e) a rough estimate of the cost of repair and reconstruction; (f) a general indication of the extraordinary character of the natural disturbance, and (g) if readily available, an indication of the extent of areas affected outside the Indian reservation(s).

    (3) The notification will be made during or as soon as possible after the occurrence.

  3. Acknowledgment by FHWA - The RFHA will acknowledge each notification in writing. The acknowledgment will provide basic coordination, eligibility, damage assessment, and Finding information and procedures required by Paragraph 7b of FHPM 6-9-16-2.


  4. Field Coordination for Damage-Assessment
  5. (1) The RFHA and AD will assign FHWA and BIA individuals to be responsible for field interagency coordination and field coordination between the BIA and FHWA, these individuals being referred to hereinafter as Field Coordinators.

    (2) The AD and RFHA will assign BIA and FHWA personnel to cooperate with Field Coordinators in making a field survey of damage for preparation of a field report and in making detailed site inspections in accordance with the provisions of Section 2d and Section 2f, respectively.

    (3) BIA and FHWA Field Coordinators will arrange joint briefing meetings with BIA and FHWA inspection personnel prior to starting damage survey work.

    (4) Inspection teams consisting of BIA and FHWA personnel will be assigned jointly by the BIA and FHWA Field Coordinators at the briefing meetings. Inspection procedures and eligibility criteria will be explained to inspection personnel by the Field Coordinators at these meetings.

    (5) Two maps depicting designated Federal roads will be provided by the BIA to each inspection team at the time briefing meetings are held. Additional maps will be made available, as needed, for other agencies which may be involved in emergency relief operations.

    (6) During the period when damage surveys are in progress, Field Coordinators will manage their time so as to give top priority to the tasks of answering eligibility questions and ensuring consistency between survey teams, making advance arrangements for briefing sessions and subsequent damage inspections, collecting information for preparation of the field report, making changes in damage survey teams as necessary, and ensuring the general efficiency of emergency relief operations.

  6. Field Report
  7. (1) FHWA and BIA personnel assigned per Sections 2c(1) and 2c(2) will promptly make a field survey of damage and cooperate in the preparation of a field report. The field report will contain information required by Paragraph 7c of FHPM 6-9-16-2 except that if the President has made a Major Disaster Declaration under the Disaster Relief Act of 1974 (P.L. 93-288), detailed information on the extraordinary nature of the natural disturbance is not required.

    (2) Unless unusual conditions prevail, it will be the intent of FHWA and the BIA to complete the field report within 3 weeks after the notification.

  8. Finding
  9. (1) Using the field report and any other information he deems appropriate, the RFHA will issue a Finding to the AD stating that repair or reconstruction of Federal roads is (Affirmative Finding) or is not (Negative Finding) eligible for emergency relief.

    (2) If an Affirmative Finding is made, the RFHA will delineate the area(s) covered by such Finding. The RFHA may amend the initial Affirmative Finding to cover additional area(s) if supplementary data to that in the field report is provided to, and is acceptable to, the RFHA to support such action.

  10. Detailed Damage Site Reports
  11. (1) If an Affirmative Finding is issued, FHWA and BIA personnel assigned as inspection team members pursuant to Section 2c(4) will make a detailed inspection of each damage site and cooperate in the preparation of a damage site report (DSR) to collect information required per Paragraph 7e(l) of FHPM 6-9-16-2.

    (2) The DSR will be prepared in a format approved by the RFHA and will provide for high quality photographs of damage to accompany DSR's to show extensive damage where complicated or very costly repairs are proposed, or to show damage of questionable eligibility.

    (3) Work eligibility and needs will be based on the criteria established in Paragraphs 6c, d, e, f, and g of FHPM 6-9-16-2, except that roads and trails which evolved over time without the benefit of engineered design will be eligible only for repair to preexisting conditions unless emergency repairs necessitate repair to higher standards. Any differences in opinion between FHWA and BIA inspection personnel concerning work needed and the eligibility of work for emergency relief funding will, to the extent possible, be resolved between the FHWA and BIA Field Coordinators during the period when detailed site surveys are being conducted. Any eligibility questions which cannot be resolved by the Field Coordinators will be forwarded to the FHWA ERFO Coordinator for resolution.

    (4) If it appears certain an Affirmative Finding will be made, the RFHA may elect to conduct these inspections at the time damage is initially assessed pursuant to Section 2d.

    (5) Due to personnel shortages, the RFHA may elect to prescribe procedures whereby BIA personnel will conduct the detailed damage site inspections and complete the DSR's. As a minimum, such procedures shall provide that:

    (a) FHWA personnel will conduct reviews of selected sites and DSR's at a later date to determine the eligibility of damage, the eligibility of repair or reconstruction proposed, and whether the proposed method of construction is appropriate.

    (b) Based on the results of FHWA reviews, the BIA will make appropriate changes in inspection procedures, in completed DSR's, in any list(s) of projects submitted per Section 3 as necessary, and will make any other changes deemed necessary by the RFHA.

3. APPLICATION

  1. Within 3 months after an Affirmative Finding, the AD will submit an application for emergency relief to the RFHA in the form of a letter which will include a list of projects for which emergency relief is requested. It is desirable that the list of projects indicate whether the BIA will perform the work or if the FHWA is requested to perform the work.


  2. The list of projects will be based upon the detailed site inspections conducted per Section 2f, and will include the information required per Paragraph 8b of FHPM 6-9-16-2.


  3. The list of projects shall separately identify proposed work which is eligible for emergency relief funding and work which is not eligible.


  4. If the initial list of projects is incomplete due to uncontrollable events, e.g., delays in completion of detailed site inspections due to weather, such will be noted in the application and a subsequent list(s) of projects will be forwarded as quickly as possible to the RFHA for approval consideration.

4. PROGRAMING

  1. The RFHA will advise the AD by letter which projects in the application, and in any subsequent submittals per Section 3d, are approved including any approval conditions. If applicable, the letter(s) will provide a statement of the work FHWA agrees to perform.


  2. Approved projects shall constitute the approved program of projects (program).


  3. All requests for FHWA to perform work for emergency relief projects in addition to work requested of FHWA at the time of program approval will be made by letter from the AD to the RFHA. The RFHA will inform the AD in writing of additional work FHWA agrees to perform.


  4. The RFHA will, as appropriate, make revisions to any programs approved based on DSR's later found to be in need of revision as the result of reviews per Section 2f(5)(a).


  5. Permanent work must have prior program approval in accordance with Section 4a unless such work is performed as emergency repairs. The definition of "permanent work" shall be as defined in Paragraph 3h of FHPM 6-9-16-2.


  6. Emergency repairs, including permanent work performed incidental to emergency repairs, and all preliminary engineering may begin immediately and do not need prior program approval. Reimbursement, however, will be contingent upon the work ultimately being included in the approved program. The definition of "emergency repairs" shall be as defined in Paragraph 3d of FHPM 6-9-16-2.


  7. Betterments may be programed for emergency relief participation in accordance with Paragraph 6e of FHPM 6-9-16-2 if they are clearly justified pursuant to Paragraph 6f(3) of FHPM 6-9-16-2. The term "Betterments" shall be as defined in Paragraph 3b of FHPM 6-9-16-2.

5. PROJECT PROCEDURES

  1. Plans, specifications, and estimates (PS&E) will be developed based on work identified in the approved program. If the BIA plans other work in addition to that identified in the approved program, the AD will notify the RFHA in writing of the additional work planned and will specify the source of funding and method of payment for such additional work.


  2. Standards to be used in reconstruction work shall be consistent with standards in actual use for regular BIA work. The BIA will provide FHWA with such standards for any work to be performed by FHWA.


  3. PS&E reviews and approvals, concurrence in award of contract or rejection of bids, determination that construction by the force account method is in the public interest, approval of directives, change orders, and supplemental agreements, acceptance of completed work and other administrative procedures will be in accordance with procedures established by the RFHA.


  4. The AD will notify the RFHA in writing of the semi-annual status, and completion of each emergency relief project constructed by the BIA.


  5. Where agreed to by the RFHA, simplified procedures, including abbreviated plans, will be used to expedite emergency relief work.


  6. Emergency relief projects shall be promptly constructed. Normally, projects will be expected to be under construction by the end of the fiscal year following the year in which the disaster or catastrophic failure occurs. Projects not under construction by the end of the second fiscal year following the year in which the disaster or catastrophic failure occurred will be reevaluated by the RFHA and will be withdrawn from the approved program of projects unless suitable justification is provided by the BIA to warrant retention.

6. FUNDING PROCEDURES

  1. Where the BIA is to perform the work, FHWA will transfer obligational authority and liquidating cash to the BIA not to exceed the amount of the work in the approved program. Obligational authority and liquidating cash will be transferred between the BIA and FHWA at the Headquarters level following arrangements made between the appropriate field offices of the FHWA and BIA.


  2. The BIA has the responsibility for administering funds transferred to it. This includes compliance with all applicable laws and regulations, and the reporting of fiscal data as may be required by FHWA.


  3. Upon completion of all work under a particular natural disaster or catastrophic failure, the BIA will submit through the RFHA a final accounting of all approved program items listing the program estimates as approved and final actual costs.


  4. During August of each year, the AD will submit to the RFHA an estimate of obligational authority and funding which will be needed by the BIA during the next fiscal year to accomplish work to be performed by the BIA to correct past disaster damage.

THIS AGREEMENT will be reviewed by the BIA and FHWA at least every 3 years to determine if changes should be sought.

RENEGOTIATION for any part of this agreement can be initiated at any time by either party.

THIS AGREEMENT shall become effective on the date of the last approving signature and will continue in effect until termination by either party upon giving a 60-day notice.

Approved:

FEDERAL HIGHWAY ADMINISTRATION BUREAU OF INDIAN AFFAIRS
   
By: Original signed by: By: Original signed by:

 

___________________________________
Deputy Federal Highway Administrator

 

__________________________________
Acting Deputy Commissioner

   
Date: Feb 5 1979 Date: Feb 5 1979

 


Amendment No. 1
To
Memorandum of Agreement
Between
The Bureau of Indian Affairs and
The Federal Highway Administration

Federal Highway Administration (FHWA) Order 1-1, Change 125, revised the delegation of authority for making emergency relief findings for Federal agencies. Therefore, the Memorandum of Agreement between the Bureau of Indian Affairs and the FHWA for the Administration of Emergency Relief Available under 23 U.S.C. 125 for Federal Roads Off the Federal-aid System, is amended as follows:

  1. On the first page, third paragraph, delete paragraph and replace with the following:

  2. Whereas, authority to make a finding for Federal agencies for Indian reservation roads and bridges as defined in 23 U.S.C. 101(a) has been delegated to the Direct Federal Division Engineers in the Eastern, Central, and Western Direct Federal Divisions (the Direct Federal Division Engineers hereinafter referred to as the DFDE's), and ....

  3. On page 3, paragraph e(1), change "FHWA Region 8" to "Central Direct Federal Division." In paragraph e(2), change "FHWA Region 10" to "Western Direct Federal Division." In paragraph e(3), change "FHWA Region 15" to "Eastern Direct Federal Division."


  4. Page 3, paragraph h - Change first part of paragraph to "The FHWA Direct Federal Division Engineers will be the contracting officer. . .


  5. In the following paragraphs, insert "DFDE" for "RFHA":
  6. Page 3, paragraph f
    Page 4, paragraphs i, 2a, 2b, 2c(1)
    Page 5, paragraph 2c(2)
    Page 6, paragraphs e(1), e(2 [3 places], f(2)
    Page 7, paragraphs f(4), f(5), f(5)(b), 3a, 3d
    Page 8, paragraphs 4(a), 4(c) [2 places], 4(d)
    Page 9, paragraphs 5a, 5c, 5d, 5e, 5(f)
    Page 10, paragraphs 6c, 6d

    FEDERAL HIGHWAY ADMINISTRATION BUREAU OF INDIAN AFFAIRS
    By: Original signed by: By: Original signed by:
    Date: Feb. 8, 1982  

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