[Federal Register Volume 69, Number 137 (Monday, July 19, 2004)]
[Rules and Regulations]
[Pages 43090-43141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15928]
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Part III
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 170
Indian Reservation Roads Program; Final Rule
Federal Register / Vol. 69, No. 137 / Monday, July 19, 2004 / Rules
and Regulations
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 170
RIN 1076-AE17
Indian Reservation Roads Program
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: This final rule establishes policies and procedures governing
the Indian Reservation Roads (IRR) Program. The IRR Program is a part
of the Federal Lands Highway Program established to address
transportation needs of tribes. The program is jointly administered by
the Bureau of Indian Affairs (BIA) and Federal Highway Administration's
(FHWA) Federal Lands Highway (FLH) Office. It expands transportation
activities available to tribes and tribal organizations and provides
guidance for planning, designing, constructing, and maintaining
transportation facilities. It also establishes a funding distribution
methodology called the Tribal Transportation Allocation Methodology
(TTAM). The TTAM includes a factor for allocating IRR Program funds
based on the relative needs of tribes and reservation or tribal
communities for transportation assistance. It also addresses the
administrative capacities of, and challenges faced by, various tribes
including the cost of road construction, geographic isolation, and
difficulty in maintaining all weather access to essential resources and
services. The TTAM provides funding for Indian Reservation Roads High
Priority Projects that would not otherwise have sufficient funding; and
makes available a minimum allocation to tribes if funding levels are
sufficient.
DATES: Effective Date: October 1, 2004.
ADDRESSES: LeRoy Gishi, Chief, Division of Transportation, Bureau of
Indian Affairs, 1951 Constitution Avenue, NW., MS-320-SIB, Washington,
DC 20240, Telephone 202-513-7711 or Fax 202-208-4696.
SUPPLEMENTARY INFORMATION:
I. Background
What Information Does This Section Address?
This section addresses:
The Transportation Equity Act for the 21st Century (TEA-
21), Public Law (Pub. L.) 105-178;
The IRR Program;
Publication of the NPRM;
Public comments.
What Is the Transportation Equity Act for the 21st Century?
The Transportation Equity Act for the 21st Century (TEA-21), Pub.
L. 105-178, 112 Stat. 107, signed into law in 1998, is a broad-based
statute that authorizes and expands the use of Federal Highway Trust
funds through fiscal year 2003. Congress has extended TEA-21 and
authorized the use of Federal Highway Trust funds into fiscal year
2004. A new transportation authorization bill is currently before
Congress.
TEA-21 contained several provisions that directly affect the Indian
Reservation Roads (IRR) program. TEA-21:
Authorized $1.6 billion for the IRR Program for fiscal
years 1998-2003;
Provided that an Indian tribal government may request to
enter into contracts or agreements under the Indian Self-Determination
and Education Assistance Act (ISDEAA), Pub. L. 93-638, as amended, for
IRR Program roads and bridges;
Established the Indian Reservation Roads Bridge Program
(IRRBP), codified at 23 U.S.C. 202 (d)(3)(B) under which a minimum of
$13 million of IRR Program funds was set aside for a nationwide
priority program for improving deficient IRR bridges. (On May 8, 2003,
the Federal Highway Administration published a final rule for the IRR
bridge program (68 FR 24642, now found at 23 CFR 661); and
Required negotiated rulemaking between representatives of
Indian tribes and the Federal Government (Department of the Interior
(DOI) and Department of Transportation (DOT)) to develop IRR Program
procedures and a funding formula to distribute IRR Program funds.
What Is the Indian Reservation Roads Program?
The Indian Reservation Roads (IRR) Program is a part of the Federal
Lands Highway Program established in 23 U.S.C. 204 to address
transportation needs of tribes. The program is jointly administered by
the Bureau of Indian Affairs (BIA) and Federal Highway Administration's
(FHWA) Federal Lands Highway (FLH) Office. The IRR Program was
established on May 26, 1928, by Pub. L. 520, 25 U.S.C. 318(a). It
authorized the Secretary of Agriculture (which had responsibility for
Federal roads at that time) to cooperate with state highway agencies
and DOI to survey, construct, reconstruct, and maintain Indian
reservation roads serving Indian lands. In 1982, under the Surface
Transportation Assistance Act of 1982 (STAA), Pub. L. 97-424, Congress
created the Federal Lands Highway Program (FLHP). This coordinated
program addresses access needs to and within Indian and other Federal
lands. The IRR Program is a funding category of this program. STAA
expanded the IRR system to include tribally-owned public roads as well
as state and county-owned roads. Each fiscal year FHWA determines the
amount of funds available for construction. The BIA works with tribal
governments and tribal organizations to develop an annual priority
program of construction projects which is submitted to FHWA for
approval based on available funding. FHWA allocates funds to BIA which
distributes them for IRR projects on or near Indian reservations
according to the annual approved priority program of projects (for
further background information on the IRR Program see 67 FR 51328,
August 7, 2002). The duties and responsibilities of BIA and FHWA are
described in a Memorandum of Agreement between the two agencies.
What Is the Purpose of the IRR Program?
The purpose of the IRR Program is to provide safe and adequate
transportation and public road access to and within Indian
reservations, Indian lands, and communities for Indians and Alaska
Natives, visitors, recreational users, resource users, and others,
while contributing to economic development, self-determination, and
employment of Indians and Alaska Natives. As of October 2003, the IRR
system consisted of approximately 25,700 miles of BIA and tribally-
owned public roads and 38,000 miles of state, county, and local
government public roads.
How Is the IRR Program Funded?
From the DOT appropriation, FHWA reserves an amount specified in 23
U.S.C. 204 or in the DOT annual appropriations act. BIA and FHWA
jointly administer the distribution of IRR Program funds under
applicable laws and regulations.
Where Is Information on the TEA-21 Negotiated Rulemaking Process Found?
Information on the TEA-21 Negotiated Rulemaking process is found at
67 FR 51328, August 7, 2002.
How Did the Department Handle Public Comments to the Notice of Proposed
Rulemaking (NPRM)?
The NPRM, published August 7, 2002, provided for a 60-day comment
period which was extended an additional 30 days to November 7, 2002.
The DOT's Dockets Management Facility received
[[Page 43091]]
electronic and written comments and posted them on its Web site at
http://dms.dot.gov. We received responses from 1586 commenters. Most
responses contained more than one comment on a variety of issues in the
NPRM. At the close of the public comment period, DOI contracted with
the U.S. Forest Service's Content Analysis Team to compile, organize,
and summarize the public comments. The TEA-21 Negotiated Rulemaking
Committee (Committee) reconvened in February and March, 2003, to review
and consider the comment summation and make recommendations for the
final rule based on public comments. All comments were carefully
considered.
Some commenters made recommendations for changes that were not
accepted or not acted upon for various reasons (such as requests for
unnecessary detail, unclear requests, requests or comments that were
unresponsive to the proposed rule or comments that were beyond the
scope of the rule). Some commenters made statements of opinion or
position, but requested or indicated no changes. Several commenters
discussed issues that were the responsibility of other government
entities and were therefore beyond the authority of the Secretary of
the Interior to change. We did not adopt these changes. Some commenters
requested modifications that required additional statutory authority
and their comments could not be adopted. A few commenters made
suggestions for grammatical and organizational changes which were
adopted.
The Committee either accepted comments, accepted comments with
modification(s), or rejected comments. DOI reviewed the Committee's
recommendations on the public comments for the final rule. The
discussion of changes from the NPRM to this final rule included in this
preamble reflect major substantive public comments received on the
NPRM. The full public comment compilation and summation report is
available at http://www.dot.gov. or by contacting the Chief, Division
of Transportation, Bureau of Indian Affairs, at the address provided in
the ADDRESSES section of this preamble.
In addition to changes the Committee made based on public comments,
DOI reviewed the rule for legal and policy issues and edited the rule
for clarity, conciseness, and Federal Register format. Some sections
were combined or rearranged and others were revised under Departmental
or Federal Register requirements. Where questions and answers were
found not to be entirely consistent in language, we revised them for
consistency. We also made editorial and substantive changes to clarify
or correct errors or omissions in the NPRM. These include changes to
Subpart C--Indian Reservation Roads Program Funding. Because the
funding methodology is central to this rule it was essential that DOI
thoroughly understand the details and ultimate purpose of the tribally-
proposed TTAM in order to implement it. On two separate occasions we
verified the intent of the tribally-proposed TTAM with tribal committee
representatives. Based on the verification of intent from the Committee
and on public comments, we found errors in the data contained in the
tables and appendices for Subpart C. The proposed funding model (the
simplified approach) was the mathematical model published in the NPRM.
This model was mathematically incomplete because it did not account for
all possible combinations for use of eligible data. Because this
distribution of data affected all tribes, the TTAM could not be
implemented with the existing data. We corrected data errors and edited
tables to make them consistent with Subpart C and to ensure
implementation of the TTAM. We did not change defaults and items that
tribal representatives negotiated. We made substantive changes in the
IRRHPP sections because they were internally inconsistent. For example,
the time lines for IRRHPP applications and approvals were inconsistent
with availability of funding from FHWA. The TTAM published in this
final rule reflects the intent of the proposed funding methodology
developed under negotiated rulemaking.
Key Areas of Disagreement
The NPRM Preamble contained Key Areas of Disagreement upon which
the TEA-21 Negotiated Rulemaking Committee was unable to reach
consensus. For each of the disagreement items the tribal and Federal
sides presented their views, followed by their respective proposed
questions and answers on those issues in the NPRM. The Administrative
Procedure Act requires notice and comment on proposed rules which
necessitates including the disagreement item questions and answers in
the NPRM. We included the Federal version of the questions and answers
for disagreement items in the appropriate subparts of the NPRM for
comment. In addition, for easy reference within the NPRM preamble, we
listed the section numbers where we inserted the Federal proposed
sections for each of the sections on disagreement items.
During consideration of the public comments, the tribal and Federal
representatives discussed the disagreement items and, based on public
comments, resolved six areas of disagreement from the NPRM. The
Committee made recommendations for changes on these in the final rule
and DOI adopted them, revising the relevant sections in the final rule.
A discussion of the resolution of disagreement items is found below.
Committee Recommendations To Resolve Disagreement Items
Based on discussions of public comments, the tribal and Federal
sides were able to resolve several disagreement items. Based on those
agreements, the Committee made recommendations to the Secretary for
resolving the following disagreement items. The section numbers cited
below refer to the section numbers in the NPRM. See the Conversion
Table for the section numbers in the final rule.
The first area of disagreement resolved is ``Eligibility'' in
subpart B (Sec. 170.116). The disagreement issue was whether BIA or
FHWA should make the determination on new proposed uses of IRR Program
funds and the time period for BIA or FHWA to review any submission for
a proposed new use. The Federal position was that FHWA approval was
required for any new proposed use of IRR Program funds with a 60-day
time period for review. The tribal position was that only BIA approval
was required and the time for review should be shortened. The
compromise, which is reflected in the new section (Sec. 170.117),
requires that tribes send requests for new proposed uses of IRR Program
funds only to BIA for approval and send copies of the requests to the
FHWA. Also, by agreement of the tribal and Federal sides, we changed
the time for review of any proposed new use of IRR Program funds from
60 days to 45 days.
The second area of disagreement resolved is ``Updating the IRRTIP''
in subpart D (Sec. 170.420). The issue involved how often
Transportation Improvement Plans (TIPs) are updated. The tribal
position recommended that updates to the IRRTIP occur on a quarterly
basis and that BIA complete the updating process 45 days from date of
receipt. The Federal side proposed that BIA submit TIP updates to FHWA
on an annual basis only. The matter was resolved by providing clear
definitions for and distinctions between an annual IRRTIP update and an
IRRTIP amendment and including the time for BIA response. The final
rule includes the following provisions: BIA updates
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the IRRTIP annually so that it can be approved and distributed near the
beginning of the fiscal year; at any time during the fiscal year, until
July 15, the tribe may request an amendment to its approved IRRTIP;
and, if BIA receives amendments after July 15, the amendments are
incorporated into the following fiscal year IRRTIP update. In addition,
the final rule includes the following: BIA Regional Offices must now
review all information a tribe submits and provide a Regional response
within 45 days; and if the proposed TIP amendment includes the addition
of a project not listed on the current approved IRRTIP, the tribe must
submit the proposed amendment to FHWA for approval. The change
emphasizes tribes' annually updating the current three-year approved
IRRTIP, while also allowing tribes to amend IRRTIPs throughout the
year, if necessary.
The third area of disagreement resolved is ``Plans, Specifications,
and Estimate (PS&E) Approval Authority'' in subpart D (Sec. Sec.
170.480-481). The tribal and Federal sides disagreed on whether a tribe
may assume the review and approval responsibility for PS&Es. During
consideration of the public comments the tribal and Federal sides
agreed on how to allow tribes to assume the review and approval
authority. The final rule reflects the agreement in the PS&E sections
by providing that a tribe may review and approve PS&Es for IRR-funded
projects under certain circumstances where the function is included in
the tribe's self-determination contract or self-governance agreement,
or where the tribe is the owner of or is responsible for maintaining
the transportation facility. The final rule also provides that for BIA-
owned or tribally-owned transportation facilities, a tribe may assume
responsibility to review and approve PS&E packages under a self-
determination or self-governance agreement if the tribe provides
assurances that a licensed professional engineer will review and
certify that the PS&Es meet or exceed design health and safety
standards referenced in the regulation. Also, an additional licensed
professional engineer must perform a second level review at no less
than 95 percent completion of the PS&E package. For a facility
maintained by a public authority other than BIA or a tribe, in addition
to satisfying the requirements set forth above (with limited
exceptions), that other public authority will be provided an
opportunity to review and approve the PS&E package when it is at least
75 percent, but not more than 95 percent complete.
The fourth area of disagreement resolved is ``IRR Construction
Project Reports'' in subpart D (Sec. Sec. 170.485-489). The tribal and
Federal sides agreed, based on public comments, how to regulate IRR
construction project closeouts. The final rule provides clear roles and
responsibilities for all affected parties, i.e., the Secretary; the
tribe; BIA; and the facility owner, for: project inspection; closeout;
audit; acceptance, and, the requirements for each process.
The fifth area of disagreement resolved is ``Contents of Rights-of-
Way Documents'' in subpart D (Sec. Sec. 170.500-502). The issue is
whether 25 CFR part 169 is the appropriate authority for tribal IRR's
over Indian lands. While there was some agreement between the tribal
and Federal sides on the minimum content required in a right-of-way
document, there was disagreement over the applicability of 25 CFR part
169 without appropriate qualifications for tribal IRR's over Indian
lands. The tribal and Federal sides agreed, however, that relying on 25
CFR part 169 as the only reference for rights-of-way over Indian lands
was not appropriate since tribes are not required to obtain rights-of-
way when constructing IRRs across their own reservations. Both sides
agreed that new language is necessary to make the distinctions clear
about when 25 CFR applies to obtaining rights-of-way. However, adding
new language to 25 CFR part 169 requires public notice and comment, and
both sides agreed to delete the reference to 25 CFR part 169 in this
rule. Therefore, 25 CFR part 169 remains the applicable regulation in
certain circumstances for third parties' obtaining rights-of-way across
Indian lands, but it is not referenced in the final rule.
The sixth area of disagreement resolved is ``Content of Stewardship
Agreements'' in subpart F (Sec. Sec. 170.701-705). Because the tribal
and Federal sides agreed to revise the sections on PS&E package
approval in the final rule, the sections on Stewardship Agreements are
no longer applicable and we have deleted them.
Areas of Disagreement With No Committee Recommendation
The Committee was not able to resolve the key area of disagreement,
``General Issues'' in subpart A in the NPRM. The disagreement on
availability of funds between the tribal and Federal sides on this
subject is an issue of statutory interpretation. The tribal side's
position is that TEA-21 requires that all IRR Program funds be made
available under the requirements of the Indian Self-Determination and
Education Assistance Act (ISDEAA). The Federal version is that under
TEA-21, specifically section 1115(b) not all funds are required to be
made available, but all funds that are made available must be made
available in accordance with the requirements of ISDEAA. Many
commenters supported the tribal view, however, the tribal and Federal
Committee members were not able to resolve the disagreement over
statutory interpretation. We have retained the Federal questions and
answers for this item.
One of the key areas of disagreement, ``Self-Governance Compacts''
in subpart H was not resolved after consideration of the comments. The
disagreement centers around the right to assume individual projects or,
alternatively, an entire program comprised of individual projects.
Commingled in this issue of disagreement are issues of the 6 percent
Program Management and Oversight (PM&O) funding and issues of using
project funds for Federal responsibilities. The authority for the 6
percent PM&O funding is the language in the annual DOI Appropriations
Act. The authority for using project funds for Federal project
responsibilities is ISDEAA language which mandates that the Secretary
must assure health and safety in all projects. For the latter, the
Federal side's position is that certain requirements apply to projects
individually regardless of whether one or more projects are assumed
collectively as a program. Thus, the tribal side's approach of
eliminating Federal access to project funds to carry out project
responsibilities would jeopardize the Federal Government's obligation
to assure health and safety for individual construction projects. In
addition, the tribal side's view would eliminate the Secretary's
statutory right to use the 6 percent Program Management and Oversight
funding, as needed. In other words, whether projects are assumed
individually or collectively, the Federal side interprets ISDEAA as
requiring the Secretary to assure health and safety for all
construction. Many commenters supported the tribal view, but none
presented a legal right to ignore the Secretary's discretion to use up
to 6 percent of Program Management and Oversight funding or to ignore
the Secretary's right to use project funds to carry out the Secretary's
health and safety responsibilities under ISDEAA. Therefore, in the
final rule we have retained the Federal questions and answers for this
item.
Another key area of disagreement that was not resolved was
``Arbitration
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Provisions'' in subpart H (Sec. Sec. 170.941-952). Essentially, the
tribal side elects to chose Alternative Dispute Resolution (ADR)
procedures at their option. The Federal version is that ISDEAA and its
implementing regulations for Indian self-determination contracts and
self-governance agreements require that certain dispute procedures be
utilized, but that ADR may be used only when both parties agree. For
example, the Contract Disputes Act (CDA) is incorporated into ISDEAA
and requires its own procedures once a contract or agreement is
executed. While ADR may be used as an alternative, it is only
appropriate when both parties agree. The tribal position would allow
ADR unilaterally and solely at the tribe's option. Thus, with the
tribal side's approach, a dispute could remain perpetually unresolved
or as long as the tribe chooses. Many comments supported the tribal
view, however, no commenters presented a legal basis to depart from the
requirements of ISDEAA. We resolved this disagreement by retaining the
Federal questions and answers for this item, with a modification. The
modification adds ``for non-construction activities'' to Sec.
170.941(c) to make clear that the Model Contract section of ISDEAA does
not apply to construction activities.
Areas of Disagreement That Are Outside the Scope of Rulemaking
The Department found four of the Key Areas of Disagreement,
``Advance Funding'' in subpart E (Sec. Sec. 170.614-618),
``Contractibility and Compactibility of TEA-21 Programs'' in subpart E
(Sec. Sec. 170.600-636), ``Availability of Contract Support Funding''
in subpart E (Sec. Sec. 170.635-636), and ``Savings'' in subpart E
(Sec. 170.620) to be outside the scope of this rulemaking. The
discussion of these areas was included in the NPRM Preamble, however,
so that the public would be aware of the Committee's discussions on
these areas. We made no changes to the questions and answers pertaining
to these issues in the NPRM.
Discussion of Public Comments
The discussion of comments below is keyed to specific sections of
the NPRM, including subparts and subheadings. Only major, substantive
public comments are discussed below. In some instances, several
commenters are represented as one comment--having made similar or
identical comments. Grammatical changes, minor wording revisions, and
other purely style-oriented comments are not discussed; however,
changes to the final rule reflect such public comments. The section
number references are to the final rule.
Subpart A--Policies, Applicability, and Definitions
Comment: Change the term ``tribal contractor'' to ``tribal
government'' as this is a more appropriate term with respect to Indian
self-determination and tribal self-governance.
Response: A change throughout the final rule has been made to refer
to ``Indian tribe or tribal organization'' rather than tribal
contractor, where applicable, for consistency with the Indian Self-
Determination and Education Assistance Act (ISDEAA).
Comment: Language should be included that would indicate that
tribes be included in the development of policies, consistent with
Federal rules and regulations.
Response: Language was added to indicate that the development of
policies would be ``in consultation with Indian tribes.''
Comment: The rule should indicate that where different from ISDEAA,
the IRR Program regulations should serve to advance--rather than
retard--the Federal Government's policy of increasing tribal autonomy
and discretion of this program.
Response: Language has been added that ``Where this part differs
from provisions in the Indian Self-Determination and Education
Assistance Act of 1975 (ISDEAA), this part should advance the policy of
increasing tribal autonomy and discretion in program operation.''
(Sec. 170.2(b))
Comment: Tribes should only have to follow those IRR Program Policy
and Guidance manuals and directives which are consistent with the
regulations in this part and 25 CFR parts 900 and 1000. Tribes should
not have to abide by any unpublished requirements, guidelines, manuals,
or policy directives of the Secretary, unless otherwise required by
law.
Response: This change was made and is reflected in Sec. 170.3.
Comment: Delete the term ``Act'' and refer only to the Indian Self-
Determination and Education Act (ISDEAA).
Response: Reference is made to ISDEAA and ``Act'' is removed from
the text of the rule.
Comment: Delete the term ``Compact'' and refer instead to ``self-
governance agreement.''
Response: Reference is made to ``self-governance agreement'' only
and the term ``compact'' is deleted.
Comment: In the definition of the term ``construction,'' delete
``highway'' and add ``IRR Program transportation facility.''
Response: The reference to ``highway'' was changed to ``IRR Program
transportation facility.''
Comment: A construction contract is not a project. The term
``Construction Contract'' should be rewritten by inserting ``contract
for a'' and deleting ``or'' after ``self-determination.'' Items (1),
(2) and (3) are inaccurate and unneeded.
Response: Under ISDEAA a construction contract is defined as a
project. ``Contract for a'' was added and ``or'' was deleted after
``self-determination.'' Items (1), (2) and (3) remain in the rule to
clarify restrictions. (Sec. 170.5)
Comment: Delete the term ``Contract'' since this is unnecessary
when all types of contracts are otherwise explained by reference and
within the context of the rule.
Response: ``Or a procurement document issued under Federal or
tribal procurement acquisition regulations'' was added to the
definition of ``Contract.'' (Sec. 170.5)
Comment: The term ``governmental subdivision of a tribe'' should be
clearly (and narrowly) defined.
Response: The term ``governmental subdivision of a tribe'' is added
and defined to be ``the unit of a federally-recognized tribe which is
authorized to participate in the IRR Program activity on behalf of the
tribe.'' (Sec. 170.5)
Comment: Add the term ``Indian Reservation Road (IRR)'' to the
definitions section.
Response: The term ``Indian Reservation Road (IRR),'' as it is
defined under 23 U.S.C. 101(a), has been added to the definitions
section. (Sec. 170.5)
Comment: Add the term ``IRR Program Management Funds'' to the
definitions section.
Response: The term ``IRR Program Management and Oversight Funds''
has been added to the definitions in subpart A, Sec. 170.5 to mean
``those funds authorized by Congress in the annual appropriations acts
to pay the cost of performing IRR Program management activities.''
Comment: Delete the reference to ``up to 2 percent planning funds''
and substitute a reference to planning funds authorized under 23 U.S.C.
204(j) to cover any future legislative language.
Response: The reference to planning funds authorized under 23
U.S.C. 204(j) or ``tribal transportation planning funds'' was
substituted. ``Tribal transportation planning funds'' is defined in
subpart A, Sec. 170.5.
Comment: Within the term ``Rehabilitation,'' reference should be
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made to all work, rather than just to major work. Rehabilitation is not
confined only to bridge work.
Response: The term ``Rehabilitation'' references transportation
facilities, rather than only bridges, and does not refer only to major
work. (Sec. 170.5)
Comment: The term ``Transportation Improvement Program (TIP)''
should be better defined.
Response: The term ``TIP'' has been deleted and the definitions of
TTIP, IRRTIP, and STIP are included in the definitions in subpart A,
Sec. 170.5.
Subpart B--Indian Reservation Roads Program Policy and Eligibility
Consultation, Collaboration, Coordination
Comment: Properly identify the Community Development Administration
funds as being ``USDA Rural Development'' funds and reference the
appropriate authority under the ``Federal Transit Administration.''
Response: These references were made in the final rule. (Sec.
170.105)
Comment: The rule should spell out the obligations of the States,
MPOs, RPOs, and local governments to consult with tribes about planning
for tribal transportation projects, including regionally significant
projects.
Response: No change was made to the final rule as the obligations
of these parties are clearly referenced in 23 U.S.C. and are incumbent
upon all parties dealing with tribal transportation projects.
Eligible Uses of IRR Program Funds
Comment: Appendix A to subpart B should reflect the use of indirect
cost in relation to non-construction administrative functions and
equipment purchases in relation to administering the IRR Program
generally.
Response: The section was revised by adding ``other eligible
activities described in this part'' to A.37 and B.67 in appendix A to
subpart B and adding ``or in this part'' to the end of Sec.
170.116(f).
Comment: Provisions for cyclical maintenance activities should be
clarified and reference to appropriate work under this activity should
be illustrated.
Response: The rule has been changed to reflect ``routine
maintenance'' and reference to ``patching or marking pavement,'' and
``bridge joints, drainage, and other work'' has been deleted in its
entirety because maintaining bridge joints is an eligible activity and
drainage is included in appurtenances. (Sec. 170.116) Eligible
activities are adequately explained in appendix A to subpart B.
Comment: Under ISDEAA only BIA, not FHWA, may determine the
eligibility for a tribe's proposed new use of IRR Program funds.
Response: The rule reflects that BIA will approve requests for new
proposed uses of IRR Program funds for activities eligible under 25
U.S.C. and FHWA approves requests for new proposed uses of IRR Program
funds for activities eligible under 23 U.S.C.
Comment: Approvals for new proposed uses should be completed in a
more timely fashion--a response time of 45 days is recommended.
Response: The time line for written responses has been changed in
the rule from 60 days to 45 days. (Sec. 170.117)
Comment: Include construction of public roads to BIA schools as an
eligible activity.
Response: Eligibility of construction of public roads accessing
public schools is already included in the list of allowable uses of IRR
Program funds in appendix A of subpart B.
Use of IRR and Cultural Access Roads
Comment: Under Civil Justice Reform (Executive Order 12988),
concern was raised with a tribe's ability to close a cultural access
road. Further, under the Regulatory Flexibility Act, concern was raised
about the many other non-Indian landowners served by tribally-owned
roads who may be impacted by this rule.
Response: Section 170.120 is revised to reflect that IRR's must be
open and available for public use.
Comment: IRRs must be open and available to public use because they
are funded with public funds.
Response: The term ``generally'' was deleted from the answer.
(Sec. 170.120)
IRR Housing Access Roads
Comment: Define the terms ``housing cluster'' and ``Indian
community.''
Response: A definition for ``housing cluster'' was added as
follows: ``Housing cluster means three or more existing or proposed
housing units.'' Sec. 170.127(c) The term ``Indian community'' was
deleted because a housing cluster is necessarily part of an Indian
community. ``On public rights-of-way'' was also added after ``housing
streets'' in Sec. 170.128 in order to make the answer consistent with
Sec. 170.127(a) which references ``public road.''
Toll, Ferry and Airport Facilities
Comment: Clarify that a tribe operating the IRR Program under
ISDEAA may use 100 percent of IRR Program funds to provide for the
local match.
Response: In the final rule, the question relating to this issue
was changed to reflect the use of IRR Program funds to provide for the
local match. (Sec. 170.130)
Recreation, Tourism, and Trails
Comment: Clarification should be made that tribes may use IRR
Program funds for recreation, tourism, and trails.
Response: The clarification that tribes, tribal organizations,
tribal consortiums, and BIA may use the funds has been made in the
final rule. (Sec. 170.135).
Highway Safety Functions
Comment: Separate references should be made to (1) Highway Safety
Programs and (2) IRR Programs to be consistent with the remaining list
of Federal programs under which funds may be available for a tribe's
highway safety programs and reference other funding Congress may
authorize and appropriate.
Response: The final rule reflects the separate references and
references other funding from Congress. (Sec. 170.141)
Subpart C--Indian Reservation Roads Program Funding
Tribal Transportation Allocation Methodology (TTAM)
Comment: Clarify takedowns and the order in which they are
incorporated.
Response: The TTAM diagram was revised for clarification, the
descriptions made more concise, and the process better defined. (Sec.
170.200)
IRR High Priority Project (IRRHPP)
Comment: What activities cannot be funded with the IRRHPP?
Response: The final rule identifies activities that cannot be
funded with the IRRHPP. (Sec. 170.205(c))
Comment: Clarify what constitutes an emergency/disaster.
Response: Clarifications of emergency/disaster have been made.
(Sec. 170.206)
Comment: How are IRRHPP applications ranked?
Response: Ranking clarifications were made in the final rule.
(Sec. 170.209)
Comment: How are unspent funds handled?
Response: The final rule now states that upon completion of an
IRRHPP, funds that are reserved but not expended are to be recovered
and returned to the IRRHPP funding pool. (Sec. 170.213)
Comment: The schedule for IRRHPP proposals should be changed due to
concerns about the lack of time to get projects awarded and underway.
Response: The final rule reflects the schedule change. (Sec.
170.212)
[[Page 43095]]
Population Adjustment Factor
Comment: The rule should better define the data used for PAF.
Response: The final rule provides that the population figures are
those defined in Sec. 170.220.
Relative Need Distribution Factor
Note: Most of the sections on the RNDF were placed into appendix
C to subpart C.
Appendix C to Subpart C
Comment: Use of population figures developed under the Native
American Housing Assistance and Self-Determination Act (NAHASDA) should
not be qualified as ``interim'' and there should be a clarification
that the American Indian and Alaska Native Service Population NAHASDA
population figures will be used.
Response: The reference to ``interim'' was deleted and the
clarification was made. (Appendix C to subpart C)
Comment: Is there a limit on how many proposed roads can be added
to the inventory?
Response: The final rule reflects that there is no limit.
Comment: What is the definition of a proposed road and under what
conditions can it be added to the inventory?
Response: The definition of a proposed road is included in Sec.
170.5 and how it is added to the inventory is provided in Sec.
170.443.
Comment: The designation of a road should reference that the
national IRR Program bid tabulation data will be collected and input
into the Cost-to-Construct database by BIADOT.
Response: This reference was made in the final rule. (Appendix C to
subpart C)
Subpart D--Planning, Design, and Construction of Indian Reservation
Roads Program Facilities
Transportation Planning
Comment: Re-order the sections in a sequential order.
Response: The sections were re-ordered, beginning with
transportation planning through approval of the IRRTIP and providing
documentation to States for inclusion in planning documents.
Comment: Tribes may perform certain aspects of transportation
planning under ISDEAA and BIA must perform certain aspects.
Response: Those aspects of transportation planning that either a
tribe or BIA must perform and aspects that either BIA or a tribe may
perform have been clearly identified in the final rule. (Sec. Sec.
170.401-402)
Comment: Remove references to Regional Planning Organizations
(RPOs) and Metropolitan Planning Offices (MPOs) as they may give the
misconception that this rule creates rural planning offices.
Response: The use of RPO and MPO was clarified to eliminate the
misconception that ``Rural Planning Offices'' were being created.
``Other appropriate planning authorities'' was included in addition to
States and their political subdivisions.
Transportation Improvement Program
Comment: BIA should update IRRTIPs quarterly.
Response: The provision for annual updates was retained in the
final rule; however, the final rule provides that a tribe may request
an amendment to the approved IRRTIP until July 15 of each year.
(Sec. Sec. 170.425 and 170.427)
Comment: BIA should review proposed changes to an approved IRRTIP
within 45 days of receipt.
Response: BIA will review and respond to amendments within 45 days
of receipt. (Sec. 170.427)
Comment: The requirement for, development of, and uses of a long-
range transportation plan (LRTP) should be clarified and redundancies
within the sections eliminated.
Response: The final rule makes these clarifications through the use
of new questions and answers. Clarification of what comprises the LRTP
has been made to include only the health and safety concerns relating
to the transportation improvements; the inclusion of additional methods
for public involvement in the development of the LRTP in allowing the
tribe or BIA to post notices in accordance with local practice;
clarifications to illustrate the requirements of a properly convened
public meeting and its statutory notice. In addition, the requirement
for the use of a consultant to approve the tribal LRTP has been
deleted.
Public Hearings
Comment: Clarify how BIA or a tribe determines the need for a
public hearing and what funds are available for the hearing.
Response: The final rule clarifies how the need for a public
hearing is determined and what funds are available. (Sec. Sec.
170.435-436)
Comment: When a public meeting is held, a courtesy copy of the
notice should be provided to the affected tribe and/or the BIA Regional
Office.
Response: This recommendation has been accepted in the final rule.
(Sec. 170.438)
Comment: Environmental and/or archaeological clearances should be
included in the public hearing process.
Response: These clearances are referenced in the final rule. (Sec.
170.439)
Comment: Are there any distinctions in funding for funding public
hearings for IRR planning and funding for public hearings for projects?
Response: Transportation planning public hearings are funded by
tribal transportation planning funds or IRR Program construction funds
and project public hearings are funded by construction funds. (Sec.
170.436)
Comment: Clarifications need to be made with respect to when the
public must be notified before project activities begin and the
responsibility BIA and/or the tribe must bear to provide such notice.
Response: The final rule clarifies public notice requirements for
both the tribe and BIA. (Sec. Sec. 170.438-441)
IRR Inventory
Comment: Move sections on technical aspects of the inventory from
subpart C to subpart D.
Response: The sections were moved from subpart C to subpart D.
Comment: References to Atlas maps and functional classifications
are not required, too technical, and not important to the intent of
this section.
Response: These references have been deleted.
Comment: The IRR inventory is a comprehensive database--not a list
of information.
Response: The final rule indicates that the inventory is a
comprehensive database. (Sec. Sec. 170.5 and 170.442)
Comment: Delete the section relating to the accuracy of the
database because it addressed only roads and was not relevant to other
transportation facilities.
Response: The section was deleted.
Comment: The surface type section is only for coding purposes in
the inventory and should be removed from this section.
Response: The surface type section has been removed.
Comment: It should be made clear that the IRR Inventory is used for
other purposes in addition to the Relative Need Distribution Factor.
Response: The use of the IRR inventory has been clarified. (Sec.
170.442)
Comment: The section regarding ``accuracy provisions'' for all
eligible transportation facilities is confusing and adds nothing
substantive to the understanding of eligible transportation facilities.
Recommend deleting this section.
Response: This section was deleted in its entirety.
[[Page 43096]]
Comment: The functional classification system categories used by
the States and those used in the IRR Program should be consistent.
Response: We have included the complete definitions that meet the
simplified approach in appendix C of subpart C. Therefore, we have
deleted this section and all other sections related to functional
classification and surface type in subpart D.
Review and Approval of Plans, Specifications, and Estimates (PS&Es)
Comment: Tribes should be able to assume review and approval
authority for PS&Es for IRR-funded projects under a self-determination
contract or a self-governance agreement.
Response: We have created a new subheading, Review and Approval of
Plans, Specifications, and Estimates. The final rule includes
provisions that a tribe may perform this task where the function is
included in the tribe's self-determination contract or self-governance
agreement, or where the tribe is the owner of or is responsible for
maintaining the transportation facility. In addition, for BIA-owned or
tribally-owned transportation facilities, a tribe may assume
responsibility to review and approve PS&E packages under a self-
determination contract or self-governance agreement so long as a tribe
provides assurances that a licensed professional engineer will review
and certify that the PS&Es meet or exceed design, health and safety
standards referenced in these regulations. For a facility maintained by
a public authority other than BIA or a tribe, a tribe must satisfy
these requirements and provide the public authority an opportunity to
review and approve PS&E packages. The final rule reflects the tribes'
ability to ensure health and safety, inclusion of health and safety
standards in self-determination contracts and self-governance
agreements, and appropriate coordination with relevant authorities in
the approval process. (Sec. Sec. 170.460-463)
Comment: Some items listed as part of a PS&E package are
supplemental, are not part of the package, and should be deleted.
Response: The final rule states which items are supplemental to a
PS&E package. (Sec. 170.460)
Construction and Construction Monitoring [and Rights-of-Way]
Comment: Delete ``where feasible'' and replace ``consultation''
with ``coordination.''
Response: In the final rule ``where feasible'' was deleted and
``coordination'' was substituted for ``consultation.'' (Sec. 170.471)
Comment: References to 25 CFR part 169, ``rights-of-way,'' pertain
to third parties and not to tribes building IRRs on their reservations.
Response: References to ``Rights-of-Way'' have been removed from
the final rule although 25 CFR part 169 remains the authority for third
parties on Indian lands.
Comment: Who has final acceptance responsibility of the IRR
Construction Project Report?
Response: In the rewrite of the project closeout and audits
sections (which have been combined), we indicate that the facility
owner has final acceptance on the project and report. (Sec. 170.473)
Appendix A to Subpart D
Comment: This Appendix should be characterized to acknowledge the
IRR Program's responsibilities to effectively manage a broad range of
cultural resources of which archaeological resources are only a part.
Response: The Appendix has been re-titled as ``Cultural Resource
and Environmental Requirements for the IRR Program.''
Comment: Reference should be made to other implementing
regulations, e.g., the Native American Graves Protection and
Repatriation Act, the National Historic Preservation Act, and the
Archaeological Resource Protection Act.
Response: We have added ``other applicable Federal laws and
regulations'' to encompass these (and other) implementing regulations,
as appropriate.
Appendix B to Subpart D
Comment: Add ``AASHTO Guidelines of Geometric Design of Very Low-
Volume Local Roads'' to the list of Design Standards for the IRR
Program.
Response: This reference has been added to appendix B to subpart D.
Subpart E--Service Delivery for Indian Reservation Roads
Funding Process
Comment: The term ``TTAM'' should replace ``IRR Relative Need
Formula'' to be consistent with subpart C.
Response: The term ``TTAM'' has been appropriately referenced in
this subpart.
Comment: Publishing a notice of availability of funds in the
Federal Register is an undue burden on the Federal Government and
presents conflicts with other time lines in this rule.
Response: We have revised this responsibility in the final rule by
separating items BIA will publish in the Federal Register and the items
that regional offices will provide to tribes upon publication of the
notice of availability of funds. This will allow BIA to publish the
amount of funding available in a manner that does not conflict with
other time lines established in this rule and reduces the
administrative burden. (Sec. 170.600)
Miscellaneous Provisions
Comment: Add a provision for consulting with a tribe before using a
force account even after a tribe declines a self-determination contract
or self-governance agreement.
Response: Because divulging bidding information is contrary to the
Federal procurement regulations, we simply added more complete
information about force accounts in the final rule. (Sec. 170.605)
Contracts and Agreements Under ISDEAA
Comment: What protections are there if the tribe fails to
substantially perform the contracted work?
Response: We have clarified the final rule to indicate the
sanctions (and protections) available when a tribe fails to
substantially perform the contracted work. (Sec. 170.621)
Subpart F--Program Oversight and Accountability
Comment: Some sections of this subpart should be removed because
they more appropriately deal with PS&Es and not program stewardship.
Response: The section on PS&Es has been revised to include the
concerns that were referenced in this subpart. Consequently, their
reference has been deleted from subpart F.
Subpart G--BIA Road Maintenance
Comment: Change the term ``Motorized Trails'' to ``vehicle
trails.''
Response: We have changed the reference to ``motorized vehicle
trails.'' (Sec. 170.803)
Comment: Include a provision that the Secretary provide to the
affected tribe a draft copy of the findings that an IRR transportation
facility is not being maintained due to insufficient funding prior to
providing the report to Congress under 23 U.S.C. 204.
Response: The final rule provides that if BIA determines that an
IRR transportation facility is not being maintained under IRR TFMMS
standards due to insufficient funding, under 23 U.S.C. 204, BIA must
continue to request annual funding for road maintenance programs on
Indian reservations. (Sec. 170.811). In addition,
[[Page 43097]]
the report is provided to the Secretary of Transportation not to
Congress.
Comment: The circumstances surrounding a temporary closure of or
restricted access to an IRR transportation facility should be clarified
to include private landowners in the decision-making process.
Response: The final rule includes consultation with applicable
private landowners in addition to the tribe and also indicates that
consultation is not required whenever the conditions involve immediate
safety and life-threatening situations. (Sec. 170.813)
Comment: Include provisions ``including runway lighting'' and
``boat ramps.''
Response: These references have been added to the final rule.
(Sec. 170.803)
Comment: Provision should be made for catastrophic failure or
natural disaster.
Response: These provisions have been added to the final rule in
discussion of the circumstances when closure of an IRR transportation
facility is warranted. (Sec. 170.813)
Comment: Recommended deleting from the answer the remainder of the
sentence after the words ``local governments'' in Sec. 170.822.
Response: The entire section was deleted.
Comment: Recommended moving Sec. Sec. 170.816-820 on bridge
inspections from subpart G to subpart D since bridge inspections are
funded from the IRR Program rather than the Road Maintenance Program.
Response: The sections on bridge inspections have been moved to
Subpart D for clarity. We added a subheading for IRR bridge inspections
under subpart D. (Sec. Sec. 170.504-507)
Subpart H--Miscellaneous
Tribal Transportation Departments
Comment: Noted that the provision in Sec. 170.932 conflicts with a
U.S. Supreme Court decision.
Response: The section has been modified to reflect recent Federal
case decisions.
Comment: Switch the order of Sec. 170.938 and Sec. 170.939 for
clarity.
Response: These sections are now Sec. 170.931 and Sec. 170.932.
We also added ``see appendix A, subpart B'' after ``activities'' in
Sec. 170.931.
Comment: It should be made clear that IRR Program funds can be used
for transportation planning and administration.
Response: This clarification has been made in the final rule.
(Sec. 170.931)
Resolving Disputes
Comment: The tribes should have the option of choosing the
Alternative Dispute Resolution Act (ADR) to settle disputes arising out
of their self-determination contracts or self-governance agreements.
Response: The Contract Disputes Act is incorporated by reference
into ISDEAA and applies to disputes after contracts or agreements are
awarded. We clarified that the Contract Disputes Act is available for
dispute resolution techniques or procedures for construction and the
Model Contract is available for non-construction by moving ``and the
implementing regulations'' from the end of the sentence to follow
``ISDEAA'' and noting that ``non-construction activities'' applies only
to the Model Contract. However, for non-construction activities under
the Model Contract, alternative dispute resolution options are
available--including the ADR. Section 170.934 was revised because it
was ambiguous as written.
II. Summary of Regulations
Subpart A--Policies, Applicability, and Definitions
This subpart outlines the authority under which this rule is
established. The purpose and scope of this rule is defined with respect
to 23 U.S.C. 202(d) and 204 and the IRR Program and this subpart
provides interpretation of the language used throughout 23 U.S.C.
The subpart further outlines the policies, guidance manuals,
directives, and procedures that will govern the IRR Program under
direct service, self-determination contracts, and self-governance
agreements and also includes definitions used throughout the rule.
Subpart B--Indian Reservation Roads Program Policy and Eligibility
This subpart:
Explains the Federal, tribal, state, and local governments
coordination, collaboration, and consultation responsibilities and how
these efforts can effectively assist the tribal governments in meeting
their transportation needs;
Lists both the eligible and non-eligible activities for
IRR Program funding;
Discusses the use of all eligible Indian Reservations
Roads and other transportation facilities eligible for construction,
including cultural access roads, housing access roads, toll roads,
recreation, tourism, trails, airport access roads, transit facilities,
and seasonal transportation routes;
Covers the highway safety aspects of the IRR Program and
those activities, functions, and equipment that may be eligible for
funding under this program;
In addition, this subpart also includes:
Transportation research activities;
Education and training opportunities available to tribes
and BIA through Local Technical Assistance Programs and other Federal,
state, and local organizations; and
How IRR Program funds may be used for education and
training.
Subpart C--Indian Reservation Roads Program Funding
This subpart covers the Tribal Transportation Allocation
Methodology and the Relative Need Distribution Factor used to
distribute IRR Program funds, including:
An overview of the allocation of IRR Program Funds;
The Transportation Planning Program (under 23 U.S.C.
204(j));
The Relative Need Distribution Factor for IRR
Construction;
The IRR High Priority Projects Program (IRRHPP); and
The Population Adjustment Factor (PAF).
It also covers the following factors used in the Relative Need
Distribution Factor:
Cost-to-Construct;
Vehicle Miles Traveled; and
Population.
This subpart also includes:
General Data Appeals;
The IRR Inventory; and
Long-Range Transportation Planning.
Subpart D--Planning, Design, and Construction of Indian Reservation
Roads Program Facilities
This subpart discusses:
The transportation planning responsibilities and
requirements consistent with 23 U.S.C. 134 and 135;
Funding sources for transportation planning;
The requirements for developing a Transportation
Improvement Program and Long-Range Transportation Plans including the
requirements for public hearings and input into their development.
This subpart also:
Defines the IRR inventory, its components, and how it is
developed and used;
Includes the environmental and archaeological requirements
applicable to projects under this program and whether IRR Program funds
can be used for these requirements;
Outlines design, construction, and construction monitoring
standards;
[[Page 43098]]
Includes closeout procedures for IRR Program construction
projects and identifies the roles of and the responsible entities for
such procedures;
Discusses the processes and procedures used at the various
office levels of the IRR Program to ensure that the program is being
carried under these regulations and the governing laws; and
Outlines the management systems that BIA must develop and
maintain for oversight and management of the IRR Program.
Subpart E--Service Delivery for Indian Reservation Roads
This subpart tells how ISDEAA can be used:
To contract for programs under the IRR Program;
In self-governance agreements;
In consortium contracts and agreements;
In multiple-year agreements;
For rights of first refusal;
In applicability of advance payments for ISDEAA contracts
and agreements;
For contingency funds; and
For cost overruns.
This subpart also covers:
Indian preference versus local preference in contracting;
Contract enforcement;
The applicability of the Buy Indian Act and the Buy
American Act to the IRR Program;
The applicability of the Federal Acquisition Regulations
and Davis Bacon wage rates with respect to self-determination contracts
or self-governance agreements;
Force account work;
Waivers of regulations;
The Federal Tort Claims Act;
Technical assistance available to tribes planning to
contract for IRR Program activities and/or functions; and
Savings.
Subpart F--Program Oversight and Accountability
This subpart discusses:
Oversight roles and responsibilities for the IRR Program;
Memoranda of Understanding; and
Program accountability.
Subpart G--BIA Road Maintenance
This subpart covers:
BIA Transportation Facility Maintenance Program and its
eligible activities and facilities including roads, bridges, airports,
and others;
Maintenance funding;
Facility ownership;
Maintenance responsibilities to the traveling public;
Maintenance management system requirements;
Maintenance standards;
Mandated bridge inspection requirements and standards; and
Provisions for emergency maintenance.
Subpart H--Miscellaneous
This subpart provides information on:
The transport of hazardous and nuclear waste;
Indian preference and tribal employment rights;
The applicability of tribal taxes and fees for IRR
Projects;
The Emergency Relief Program;
Establishing and operating tribal transportation
departments and the eligible activities and/or functions for which
these organizations can contract;
Tribal regulations of oversize and overweight vehicles;
Reporting requirements;
Tribal employment rights;
Alternative dispute resolution procedures to resolve IRR
program disputes; and
Research activities available under the IRR Program.
III. Procedural Requirements
A. Regulatory Planning and Review (Executive Order 12866)
This final rule is a significant regulatory action requiring review
by the Office of Management and Budget. The Office of Management and
Budget has reviewed this final rule under Executive Order 12866. This
final rule will have budgetary effects of entitlement, grants, user
fees, or loan programs or the rights or obligations of their
recipients. Funding for the IRR Program in fiscal year 2003 is $275
million and is expected to increase in future years. It is anticipated
that the IRR Program will receive more than $2 billion dollars over the
next six years with the passage of a new Transportation authorization.
The DOT, FHWA, allocates funds to DOI, BIA. BIA distributes the funds
to each of its 12 regions based on the existing funding formula for the
benefit of tribes in each region. This final rule will not adversely
affect in a material way the economy, productivity, competition, jobs,
the environment, public health or safety, or state, local, or tribal
governments or communities. This final rule enables Indian tribes to be
more directly involved in the care, upgrade, safety, and improvement of
their transportation facilities. This rule sets forth policies and
guidelines under which FHWA, BIA, and tribes that contract with BIA
conduct the IRR Program. It also includes a funding methodology for
distributing IRR Program funds. It covers current practices of DOT and
DOI. DOT representatives have participated in this negotiated
rulemaking, concur in all consensus items, and have provided comments
on all disputed items. This final rule raises novel legal or policy
issues that are contained in the Disagreement Items section of the
Preamble. It also provides policy and guidance under the Indian Self-
Determination and Education Assistance Act, Pub. L. 93-638, and under
the Transportation Equity Act for the 21st Century, Pub. L. 105-178, as
they relate to the IRR Program which has been in effect since 1983.
B. Regulatory Flexibility Act
DOI certifies that this document will not have a significant
economic effect on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Indian tribes are
not considered to be small entities for purposes of this Act.
C. Small Business Regulatory Enforcement Fairness Act (SBREFA)
This final rule is a major rule under the Small Business Regulatory
Enforcement Fairness Act (5 U.S.C. 804(2)) because it has an annual
effect on the economy of $100 million or more. The yearly amount of IRR
Program funds is approximately $275 million.
This final rule will not cause a major increase in costs or prices
for consumers, individual industries, Federal, state, or local
government agencies, or geographic regions. Actions under this final
rule will distribute Federal funds to Indian tribal governments and
tribal organizations for transportation planning, construction, and
maintenance.
This rule does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign based enterprises.
D. Unfunded Mandates Reform Act
This final rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22,
1995, 109 Stat. 48). This final rule will not result in the expenditure
by State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year (2 U.S.C.
1532).
E. Takings Implication Assessment (Executive Order 12630)
This final rule does not have significant takings implications.
This final rule does not pertain to taking of
[[Page 43099]]
private property interests, nor does it impact private property.
F. Federalism (Executive Order 12612)
This final rule does not have significant federalism effects
because it pertains solely to Federal-tribal relations and will not
interfere with the roles, rights, and responsibilities of States.
G. Civil Justice Reform (Executive Order 12988)
This final rule does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988.
H. Paperwork Reduction Act
This rulemaking requires an information collection from 10 or more
parties and a submission under the Paperwork Reduction Act of 1995,
Pub. L. 104-13, is required. Accordingly, The Department prepared an
OMB form 83-I for review and approval by OMB. Having reviewed the
submissions of the Department with respect to the burden hours of each
part of this rulemaking, along with any comments that were submitted by
the reviewing public, OMB has approved the information collection
requirements contained in this rulemaking and has assigned OMB control
number 1076-0161. The expiration date of this control number is October
31, 2005. This approval by OMB was necessitated by the requirements
inherent in the revisions to 25 CFR part 170. Revisions to part 170 are
in furtherance of a Departmental initiative to implement the
Transportation Equity Act for the 21st Century (TEA-21) and set
policies and procedures governing the IRR Program. The information
provided through information collection requirements is used by DOI,
BIA, to determine how funds appropriated by Congress under TEA-21 will
be allocated to various tribal governments in implementing the IRR
program. The information is particularly used in assisting tribal
governments to meet reporting and application requirements for their
participation in the IRR program, and is reflected in subparts C or D
of this rulemaking. The total estimated burden hours for this
information collection is 31,470 hours and is required to obtain or
retain a benefit under 25 CFR part 170 pursuant to 5 CFR 1320.9. The
public is invited to make any additional comments it may have
concerning the accuracy of this burden estimate and any suggestions for
reducing such burden.
I. National Environmental Policy Act
DOI has determined that this rule does not constitute a major
Federal action significantly affecting the quality of the human
environment and that no detailed statement is required under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321). Specific
projects under the IRR Program will require NEPA review through an
Environmental Assessment or Environmental Impact Statement.
J. Consultation and Coordination With Indian Tribal Governments
(Executive Order 13175)
Pursuant to Executive Order 13175 of November 6, 2000, Consultation
and Coordination with Indian Tribal Governments, we have consulted with
tribal representatives throughout the process of developing this rule
through negotiated rulemaking. We conducted consultation at the
Negotiated Rulemaking Committee's 23 meetings, accepted oral and
written comments at all Committee meetings, maintained Committee
information on the IRR Web site, provided periodic newsletters and
other mailings, provided updates at intertribal and other Indian
Reservation Roads transportation-related meetings, and sent periodic
letters to tribal leaders. As part of the negotiated rulemaking process
with tribes, we reviewed and considered public comments to the NPRM
with the Negotiated Rulemaking Committee to make recommendations to the
Secretary for the final rule. We have evaluated any potential effects
on federally-recognized Indian tribes and have determined that there
are no potential adverse effects. The final rule expands tribal
participation in and responsibilities for various transportation-
related activities of the IRR program. We consulted with tribal
governments and tribal organizations as part of the negotiated
rulemaking process throughout the comment period after publication of
this final rule.
IV. Reference Tables
The following tables are provided to allow the reader to locate
specific matters of interest under particular subheadings from the NPRM
and determine if those sections have been relocated in the final rule.
----------------------------------------------------------------------------------------------------------------
NPRM subpart NPRM subheading NPRM section Nos.
----------------------------------------------------------------------------------------------------------------
Subpart A............................... General Provisions and Sec. 170.1-Sec. 170.6
Definitions.
Subpart B............................... Indian Reservation Roads
Program Policy and Eligibility.
Consultation, Collaboration, Sec. 170.100-Sec. 170.112
Coordination.
Eligibility for IRR Funding.... Sec. 170.114-Sec. 170.116
Use of IRR and Cultural Access Sec. 170.120-Sec. 170.126
Roads.
Seasonal Transportation Routes. Sec. 170.130-Sec. 170.138
IRR Housing Access and Toll Sec. 170.140-Sec. 170.148
Roads.
Recreation, Tourism, Trails.... Sec. 170.150-Sec. 170.154
Highway Safety Functions....... Sec. 170.155-Sec. 170.159
Non-Road Transportation........ Sec. 170.160-Sec. 170.162
Transit Facilities............. Sec. 170.163-Sec. 170.170
IRR Program Coordinating Sec. 170.171-Sec. 170.177
Committee.
Indian Local Technical Sec. 170.178-Sec. 170.192
Assistance Program (LTAP).
LTAP Sponsored Education and Sec. 170.193-Sec. 170.194
Training Opportunities.
Subpart C............................... Indian Reservation Roads Sec. 170.225-Sec. 170.232
Program Funding.
Tribal Transportation Sec. 170.235-Sec. 170.236
Allocation Methodology for IRR
Construction.
IRR High Priority Projects Sec. 170.245-Sec. 170.257
(IRRHPP).
Population Adjustment Factor Sec. 170.263-Sec. 170.267
(PAF).
Relative Need Distribution Sec. 170.270-Sec. 170.282
Factor.
General Data Appeals........... Sec. 170.285-Sec. 170.288
IRR Inventory and Long-Range Sec. 170.290-Sec. 170.299
Transportation Planning (LRTP).
Long-Range Transportation Sec. 170.300-Sec. 170.303
Planning.
Flexible Financing............. Sec. 170.350-Sec. 170.357
Subpart D............................... Planning, Design, and
Construction of Indian
Reservation Roads Program
Facilities.
Transportation Planning........ Sec. 170.400-Sec. 170.436
[[Page 43100]]
Public Hearings................ Sec. 170.437-Sec. 170.445
IRR Inventory.................. Sec. 170.446-Sec. 170.460
Environment and Archeology..... Sec. 170.461-Sec. 170.462
Design......................... Sec. 170.464-Sec. 170.469
Construction and Construction Sec. 170.472-Sec. 170.502
Monitoring and Rights-of-Way.
Program Reviews and Management Sec. 170.510-Sec. 170.516
Systems.
Subpart E............................... Service Delivery for Indian Sec. 170.600-Sec. 170.636
Reservation Roads.
Subpart F............................... Program Oversight and Sec. 170.700-Sec. 170.708
Accountability.
Subpart G............................... BIA Road Maintenance........... Sec. 170.800-Sec. 170.823
Subpart H............................... Miscellaneous..................
Hazardous and Nuclear Waste Sec. 170.900-Sec. 170.907
Transportation.
Reporting Requirements and Sec. 170.910-Sec. 170.923
Indian Preference.
Emergency Relief............... Sec. 170.924-Sec. 170.932
Tribal Transportation Sec. 170.936-Sec. 170.940
Departments.
Arbitration Provisions......... Sec. 170.941-Sec. 170.943
Other Miscellaneous Provisions. Sec. 170.950-Sec. 170.952
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List of Subjects in 25 CFR Part 170
Highways and roads, Indians--lands.
Dated: February 26, 2004.
David Anderson,
Assistant Secretary--Indian Affairs.
Editorial Note: This document was received in the Office of the
Federal Register on July 9, 2004.
0
For the reasons stated in the preamble, the Department of the Interior,
Bureau of Indian Affairs, revises part 170 in title 25 of the Code of
Federal Regulations as follows:
PART 170--INDIAN RESERVATION ROADS PROGRAM
Subpart A--Policies, Applicability, and Definitions
Sec.
170.1 What does this part do?
170.2 What is the IRR Program and BIA Road Maintenance Program
policy?
170.3 When do other requirements apply to the IRR Program?
170.4 What is the effect of this part on existing tribal rights?
170.5 What definitions apply to this part?
170.6 Information collection.
Subpart B--Indian Reservation Roads Program Policy and Eligibility
Consultation, Collaboration, Coordination
170.100 What do the terms ``consultation, collaboration, and
coordination'' mean?
170.101 What is the IRR Program consultation and coordination
policy?
170.102 How do the Departments consult, collaborate, and coordinate
with tribal governments?
170.103 What goals and principles guide the Secretaries?
170.104 Must the Secretary consult with tribal governments before
obligating IRR Program funds?
170.105 Are funds available for consultation, collaboration, and
coordination activities?
170.106 When must State governments consult with tribes?
170.107 Should planning organizations and local governments consult
with tribes when planning for transportation projects?
170.108 Should Indian tribes and BIA consult with States' planning
organizations and local governments in the development of their
IRRTIP?
170.109 How do the Secretaries prevent discrimination or adverse
impacts?
170.110 How can State and local governments prevent discrimination
or adverse impacts?
170.111 What can a tribe do if discrimination or adverse impacts
occur?
Eligible Uses of IRR Program Funds
170.115 What activities may be funded with IRR Program funds?
170.116 What activities are not eligible for IRR Program funding?
170.117 How can a tribe determine whether a new use of funds is
allowable?
Use of IRR and Cultural Access Roads
170.120 What restrictions apply to the use of an Indian Reservation
Road?
170.121 What is a cultural access road?
170.122 Can a tribe close a cultural access road?
Seasonal Transportation Routes
170.123 What are seasonal transportation routes?
170.124 Does the IRR Program cover seasonal transportation routes?
IRR Housing Access Roads
170.127 What terms apply to access roads?
170.128 Are housing access roads and housing streets eligible for
IRR Program funding?
Toll, Ferry and Airport Facilities
170.130 How can tribes use Federal highway funds for toll and ferry
facilities?
170.131 How can a tribe find out more about designing and operating
a toll facility?
170.132 When can a tribe use IRR Program funds for airport
facilities?
Recreation, Tourism and Trails
170.135 Can a tribe use Federal funds for its recreation, tourism,
and trails program?
170.136 How can a tribe obtain funds?
170.137 What types of activities can a recreation, tourism, and
trails program include?
170.138 Can roads be built in roadless and wild areas?
Highway Safety Functions
170.141 What Federal funds are available for a tribe's highway
safety activities?
170.142 How can tribes obtain funds to perform highway safety
projects?
170.143 How can IRR Program funds be used for highway safety?
170.144 What are eligible highway safety projects?
170.145 Are other funds available for a tribe's highway safety
efforts?
Transit Facilities
170.148 What is a tribal transit program?
170.149 How do tribes identify transit needs?
170.150 What Federal funds are available for a tribe's transit
program?
170.151 May a tribe or BIA use IRR Program funds as matching funds?
170.152 What transit facilities and activities are eligible for IRR
Program funding?
IRR Program Coordinating Committee
170.155 What is the IRR Program Coordinating Committee?
170.156 What are the IRR Program Coordinating Committee's
responsibilities?
170.157 What is the IRR Program Coordinating Committee's role in the
funding process?
170.158 How does the IRR Program Coordinating Committee conduct
business?
Indian Local Technical Assistance Program
170.161 What is the Indian Local Technical Assistance Program?
170.162 How is the Indian LTAP funded?
170.163 How are Indian LTAP recipients selected?
170.164 How are tribal representatives nominated and chosen for the
selection committee?
170.165 May a tribe enter into a contract or agreement for Indian
LTAP funds?
170.166 What services do Indian LTAP centers provide?
170.167 How does a tribe obtain services from an Indian LTAP center?
170.168 Do Indian LTAP centers offer services similar to those of
State LTAPs?
170.169 What can a tribe do if Indian LTAP services are
unsatisfactory?
170.170 How are Indian LTAP centers managed?
170.171 How are tribal advisory technical panel members selected?
Indian LTAP-Sponsored Education and Training Opportunities
170.175 What Indian LTAP-sponsored transportation training and
educational opportunities exist?
170.176 Where can tribes get scholarships and tuition for Indian
LTAP-sponsored education and training?
Appendix A to Subpart B--Allowable Uses of IRR Program Funds
Appendix B to Subpart B--Sources of Tribal Transportation Training
and Education Opportunities
Subpart C--Indian Reservation Roads Program Funding
Tribal Transportation Allocation Methodology (TTAM)
170.200 How does BIA allocate IRR Program funds?
170.201 How does BIA allocate and distribute tribal transportation
planning funds?
170.202 Does the Relative Need Distribution Factor allocate funding
among tribes?
IRR High Priority Project (IRRHPP)
170.205 What is an IRR High Priority Project (IRRHPP)?
170.206 How is an emergency/disaster defined?
170.207 What is the intent of IRRHPP emergency/disaster funding?
170.208 What funding is available for IRRHPP?
170.209 How will IRRHPP applications be ranked and funded?
170.210 How may a tribe apply for IRRHPP?
170.211 What is the IRRHPP Funding Priority List?
170.212 What is the timeline for IRRHPPs?
170.213 How long are IRRHPP funds available for a project?
170.214 How does award of an emergency/disaster project affect
projects on the FPL?
Population Adjustment Factor
170.220 What is the Population Adjustment Factor?
[[Page 43103]]
170.221 What funding is available for distribution using the PAF?
Relative Need Distribution Factor
170.223 What is the Relative Need Distribution Factor (RNDF)?
IRR Inventory and Long-Range Transportation Planning (LRTP)
170.225 How does the LRTP process relate to the IRR Inventory?
170.226 How will this part affect the IRR Inventory?
170.227 How does BIA develop and use the IRR Inventory?
170.228 Are all facilities included in the IRR Inventory used to
calculate CTC?
General Data Appeals
170.231 May a tribe challenge the data BIA uses in the RNDF?
170.232 How does a tribe appeal a disapproval from the BIA Regional
Director?
Flexible Financing
170.300 May tribes use flexible financing to finance IRR
transportation projects?
170.301 Can a tribe use IRR Program funds to leverage other funds or
pay back loans?
170.302 Can BIA regional offices borrow IRR Program funds from each
other?
170.303 Can a tribe apply for loans or credit from a State
infrastructure bank?
Appendix A to Subpart C--IRR High Priority Project Scoring Matrix
Appendix B to Subpart C--Population Adjustment Factor
Appendix C to Subpart C--Relative Need Distribution Factor
Appendix D to Subpart C--Cost to Construct
Subpart D--Planning, Design, and Construction of Indian Reservation
Roads Program Facilities
Transportation Planning
170.400 What is the purpose of transportation planning?
170.401 What is BIA's role in transportation planning?
170.402 What is the tribal role in transportation planning?
170.403 What IRR Program funds can be used for transportation
planning?
170.404 What happens when a tribe uses its IRR Program construction
funds for transportation planning?
170.405 Can tribal transportation planning funds be used for road
construction and other projects?
170.406 How must tribes use planning funds?
170.407 What happens to unobligated planning funds?
Long-Range Transportation Planning
170.410 What is the purpose of tribal long-range transportation
planning?
170.411 What can a long-range transportation plan include?
170.412 How is the tribal IRR long-range transportation plan
developed and approved?
170.413 What is the public role in developing the long-range
transportation plan?
170.414 How is the tribal long-range transportation plan used and
updated?
170.415 What is pre-project planning?
Transportation Improvement Program
170.420 What is the tribal priority list?
170.421 What is the Tribal Transportation Improvement Program
(TTIP)?
170.422 What is the IRR Transportation Improvement Program (IRRTIP)?
170.423 How are projects placed on the IRRTIP?
170.424 How does the public participate in developing the IRRTIP?
170.425 How does BIA update the IRRTIP?
170.426 What is the approval process for the IRRTIP?
170.427 How may an IRRTIP be amended?
170.428 How is the State Transportation Improvement Program related
to the IRRTIP?
Public Hearings
170.435 How does BIA or the tribe determine the need for a public
hearing?
170.436 How are public hearings for IRR planning and projects
funded?
170.437 How must BIA or a tribe inform the public when no hearing is
held?
170.438 How must BIA or a tribe inform the public when a hearing is
held?
170.439 How is a public hearing conducted?
170.440 How can the public learn the results of a public hearing?
170.441 Can a decision resulting from a hearing be appealed?
IRR Inventory
170.442 What is the IRR Inventory?
170.443 How can a tribe list a proposed transportation facility in
the IRR Inventory?
170.444 How is the IRR Inventory updated?
170.445 What is a strip map?
Environmental and Archeological Requirements
170.450 What archeological and environmental requirements must the
IRR Program meet?
170.451 Can IRR Program funds be used for archeological and
environmental compliance?
Design
170.454 What design standards are used in the IRR Program?
170.455 How are design standards used in IRR projects?
170.456 When can a tribe request an exception from the design
standards?
170.457 Can a tribe appeal a denial?
Review and Approval of Plans, Specifications, and Estimates
170.460 What must a project package include?
170.461 May a tribe approve plans, specifications, and estimates?
170.462 When may a self-determination contract or self-governance
agreement include PS&E review and approval?
170.463 What should the Secretary do if a design deficiency is
identified?
Construction and Construction Monitoring
170.470 What are the IRR construction standards ?
170.471 How are projects administered?
170.472 What construction records must tribes and BIA keep?
170.473 What happens when a construction project ends?
170.474 Who conducts the project closeout?
Program Reviews and Management Systems
170.500 What program reviews do the Secretaries conduct?
170.501 What happens when the review process identifies areas for
improvement?
170.502 Are management systems required for the IRR Program?
170.503 How are IRR Program management systems funded?
Bridge Inspection
170.504 When and how are bridge inspections performed?
170.505 How must bridge inspections be coordinated?
170.506 What are the minimum qualifications for certified bridge
inspectors?
170.507 Who reviews bridge inspection reports?
Appendix A to Subpart D--Cultural Resource and Environmental
Requirements for the IRR Program
Appendix B to Subpart D--Design Standards for the IRR Program
Subpart E--Service Delivery for Indian Reservation Roads
Funding Process
170.600 What must BIA include in the notice of availability of
funds?
170.601 What happens to the unused portion of IRR Program management
and oversight funds reserved by the Secretary?
170.602 If a tribe incurs unforeseen construction costs, can it get
additional funds?
Miscellaneous Provisions
170.605 When may BIA use force account methods in the IRR Program?
170.606 How do legislation and procurement requirements affect the
IRR Program?
170.607 Can a tribe use its allocation of IRR Program funds for
contract support costs?
170.608 Can a tribe pay contract support costs from Department of
the Interior or BIA appropriations?
Contracts and Agreements Under ISDEAA
170.610 What IRR Program functions may a tribe assume under ISDEAA?
170.611 What special provisions apply to ISDEAA contracts and
agreements?
170.612 How are non-contractible functions funded?
170.613 When does BIA determine the amount of funds needed for non-
contractible non-project related functions?
170.614 Can a tribe receive funds before BIA publishes the notice of
funding availability?
[[Page 43104]]
170.615 Can a tribe receive advance payments for non-construction
activities?
170.616 How are advance payments made when additional IRR Program
funds are made available after execution of the self-governance
agreement?
170.617 May a tribe include a contingency in its proposal budget?
170.618 Can a tribe keep savings resulting from project
administration?
170.619 Do tribal preference and Indian preference apply to IRR
Program funding?
170.620 How do ISDEAA's Indian preference provisions apply?
170.621 What if a tribe fails to substantially perform work under a
contract or agreement?
170.622 What IRR programs, functions, services, and activities are
subject to the self-governance construction regulations?
170.623 How are IRR Program projects and activities included in a
self-governance agreement?
170.624 Is technical assistance available?
170.625 What regulations apply to waivers?
170.626 How does a tribe request a waiver of a Department of
Transportation regulation?
Appendix A to Subpart E--IRR Program functions that are not
otherwise contractible
Subpart F--Program Oversight and Accountability
170.700 What is the IRR Program stewardship plan?
170.701 May a direct service tribe and BIA Region sign a Memorandum
of Understanding?
170.702 What activities may the Secretary review and monitor?
Subpart G--BIA Road Maintenance
170.800 Who owns IRR transportation facilities?
170.801 What is the BIA Road Maintenance Program?
170.802 How is road maintenance funded?
170.803 What facilities are eligible under the BIA Road Maintenance
Program?
170.804 How is BIA's Road Maintenance Program related to the IRR
Program?
170.805 What are the local, tribal, and BIA roles in transportation
facility maintenance?
170.806 What is an IRR Transportation Facilities Maintenance
Management System (IRR TFMMS)?
170.807 What must BIA include when it develops an IRR Transportation
Facilities Maintenance Management System?
170.808 Can BIA Road Maintenance Program funds be used to improve
IRR transportation facilities?
170.809 Can a tribe perform road maintenance under a self-
determination contract or self-governance agreement?
170.810 To what standards must an IRR transportation facility be
maintained?
170.811 What happens if lack of funds results in inadequate
maintenance?
170.812 What is emergency maintenance?
170.813 When can access to IRR transportation facilities be
restricted?
Appendix A to Subpart G--List of Activities Eligible for Funding
Under BIA Transportation Facility Maintenance Program
Subpart H--Miscellaneous Provisions
Hazardous and Nuclear Waste Transportation
170.900 What is the purpose of the provisions relating to
transportation of hazardous and nuclear waste?
170.901 What standards govern transportation of radioactive and
hazardous materials?
170.902 What is the role of State, tribal, and local governments?
170.903 Who notifies tribes of the transport of radioactive waste?
170.904 Who responds to an accident involving a radioactive or
hazardous materials shipment?
170.905 How can tribes obtain training in handling hazardous
material?
170.906 Who cleans up radioactive and hazardous material spills?
Reporting Requirements and Indian Preference
170.910 What information on the IRR Program or projects must BIA
provide to tribes?
170.911 Are Indians entitled to employment and training preferences?
170.912 Does Indian employment preference apply to Federal-aid
Highway Projects?
170.913 Do tribal-specific employment rights and contract preference
laws apply?
170.914 What is the difference between tribal employment preference
and Indian employment preference?
170.915 May tribal employment taxes or fees be included in an IRR
project budget?
170.916 May tribes impose taxes or fees on those performing IRR
Program services?
170.917 Can tribes receive direct payment of tribal employment taxes
or fees?
Emergency Relief
170.920 What is the purpose of the provisions relating to emergency
relief?
170.921 What emergency or disaster assistance programs are
available?
170.922 How can States get Emergency Relief Program funds to repair
IRR System damage?
170.923 What qualifies for ERFO funding?
170.924 What happens if DOT denies an ERFO claim?
170.925 Is ERFO funding supplemental to IRR Program funding?
170.926 Can a tribe administer approved ERFO repairs under a self-
determination contract or a self-governance agreement?
170.927 How can FEMA Program funds be used to repair damage?
Tribal Transportation Departments
170.930 What is a tribal transportation department?
170.931 Can tribes use IRR Program funds to pay tribal
transportation department operating costs?
170.932 Are there other funding sources for tribal transportation
departments?
170.933 Can tribes regulate oversize or overweight vehicles?
Resolving Disputes
170.934 Are alternative dispute resolution procedures available?
170.935 How does a direct service tribe begin the alternative
dispute resolution process?
Other Miscellaneous Provisions
170.941 May tribes become involved in transportation research?
170.942 Can a tribe use Federal funds for transportation services
for a tribe's Welfare-to-Work, Temporary Assistance to Needy
Families, and other quality-of-life improvement programs?
Authority: Pub. L. 105-178, 112 Stat. 107; 5 U.S.C. 565; 23
U.S.C. 101(a), 202, 204, 308; 25 U.S.C. 47, 25 U.S.C. 450.
Subpart A--Policies, Applicability, and Definitions
Sec. 170.1 What does this part do?
This part provides rules and a funding formula for the Department
of the Interior (DOI) in implementing the Indian Reservation Roads
(IRR) Program. Included in this part are other Title 23 programs
administered by the Secretary and implemented by tribes and tribal
organizations under the Indian Self-Determination and Education
Assistance Act of 1975, as amended (ISDEAA).
Sec. 170.2 What is the IRR Program and BIA Road Maintenance Program
policy?
(a) It is the policy of the Secretary of the Interior and the
Secretary of Transportation (Secretaries) to do the following in
relation to the IRR and BIA Road Maintenance Programs:
(1) Provide a uniform and consistent set of rules;
(2) Foster knowledge of the programs by providing information about
them and the opportunities that they create;
(3) Facilitate tribal planning, conduct, and administration of the
programs;
(4) Encourage the inclusion of these programs under self-
determination contracts or self-governance agreements;
(5) Make available all contractible administrative functions under
self-determination contracts or self-governance agreements; and
(6) Implement policies, procedures, and practices in consultation
with Indian tribes to ensure the letter, spirit, and goals of Federal
transportation programs are fully implemented.
(b) Where this part differs from provisions in the Indian Self-
Determination and Education Assistance Act of 1975 (ISDEAA), this part
should advance the policy of
[[Page 43105]]
increasing tribal autonomy and discretion in program operation.
(c) This part is designed to enable Indian tribes to participate in
all contractible IRR and BIA Road Maintenance programs. The Secretary
of the Interior will afford Indian tribes the flexibility, information,
and discretion to design roads programs under self-determination
contracts and self-governance agreements to meet the needs of their
communities consistent with this part.
(d) The Secretaries recognize that programs, functions, services,
and activities, regardless of how they are administered, are an
exercise of Indian tribes' self-determination and self-governance.
(1) The tribe is responsible for managing the day-to-day operation
of its contracted Federal programs, functions, services, and
activities.
(2) The tribe accepts responsibility and accountability to the
beneficiaries under self-determination contracts and self-governance
agreements for:
(i) Use of the funds; and
(ii) Satisfactory performance of all activities funded under the
contract or agreement.
(3) The Secretary will continue to discharge the trust
responsibilities to protect and conserve the trust resources of tribes
and the trust resources of individual Indians.
(e) The Secretary should interpret Federal laws and regulations to
facilitate including programs covered by this part in the government-
to-government agreements authorized under ISDEAA.
(f) The administrative functions referenced in paragraph (a)(5) of
this section are contractible without regard to the organizational
level within the Department of the Interior that carries out these
functions. Including IRR Program administrative functions under self-
determination contracts and self-governance agreements does not limit
or reduce the funding for any program or service serving any other
tribe.
(g) The Secretary is not required to reduce funding for a tribe
under these programs to make funds available to another tribe.
(h) This part must be liberally construed for the benefit of tribes
and to implement the Federal policy of self-determination and self-
governance.
(i) Any ambiguities in this part must be construed in favor of the
tribes so as to facilitate and enable the transfer of programs
authorized by 23 U.S.C. 202 and title 25 U.S.C.
Sec. 170.3 When do other requirements apply to the IRR Program?
IRR Program Policy and Guidance Manuals and directives apply to the
IRR Program only if they are consistent with this part and 25 CFR parts
900 and 1000. See 25 CFR part 900.5 for when a tribe must comply with
other unpublished requirements.
Sec. 170.4 What is the effect of this part on existing tribal rights?
This part does not:
(a) Affect the sovereign immunity from suit enjoyed by tribes;
(b) Terminate or reduce the trust responsibility of the United
States to tribes or individual Indians;
(c) Require a tribe to assume a program relating to the IRR
Program; or
(d) Impede awards by other agencies of the United States or a State
to tribes to administer programs under any other law.
Sec. 170.5 What definitions apply to this part?
AASHTO means the American Association of State Highway and
Transportation Officials.
Annual Funding Agreement means a negotiated agreement of the
Secretary to fund, on an annual basis, the programs, functions,
services, and activities transferred to a tribe under the Indian Self-
Determination and Education Assistance Act, as amended.
Appeal means a request by a tribe or consortium for an
administrative review of an adverse agency decision.
BIA means the Bureau of Indian Affairs of the Department of the
Interior.
BIADOT means the Bureau of Indian Affairs, Division of
Transportation.
BIA force account means the performance of work done by BIA
employees.
BIA Road System means the Bureau of Indian Affairs Road System
under the IRR system. It includes those existing and proposed IRR's for
which BIA has or plans to obtain legal right-of-way. BIA has the
primary responsibility to improve and maintain the roads on this
system.
CFR means the United States Code of Federal Regulations.
Construction means the supervising, inspecting, actual building,
and incurrence of all costs incidental to the construction or
reconstruction of an IRR transportation facility, as defined in 23
U.S.C. 101. This includes bond costs and other related costs of bonds
or other debt financing instruments. It also includes costs incurred by
the State in performing Federal-aid project related audits that
directly benefit the Federal-aid highway program. The term includes--
(1) Locating, surveying, and mapping (including establishing
temporary and permanent geodetic markers in accordance with
specifications of the U.S. Geological Survey);
(2) Resurfacing, restoration, and rehabilitation;
(3) Acquiring rights-of-way;
(4) Providing relocation assistance; acquiring replacement housing
sites; and acquiring, rehabilitating, relocating, and constructing
replacement housing;
(5) Eliminating hazards of railway grade crossings;
(6) Eliminating roadside obstacles;
(7) Making improvements that facilitate and control traffic flow,
such as grade separation of intersections, widening lanes, channelizing
traffic, installing traffic control systems, and establishing passenger
loading and unloading areas; and
(8) Making capital improvements that directly facilitate an
effective vehicle weight enforcement program, such as scales (fixed and
portable), scale pits, scale installation, and scale houses.
Construction contract means a fixed price or cost reimbursement
self-determination contract for a construction project, except that
such term does not include any contract--
(1) That is limited to providing planning services and construction
management services (or a combination of such services);
(2) For the housing improvement program or roads maintenance
program of the BIA administered by the Secretary of the Interior; or
(3) For the health facility maintenance and improvement program
administered by the Secretary of Health and Human Services.
Consultation means government-to-government communication in a
timely manner by all parties about a proposed or contemplated decision
in order to:
(1) Secure meaningful tribal input and involvement in the decision-
making process; and
(2) Advise the tribe of the final decision and provide an
explanation.
Contract means a self-determination contract as defined in section
4(j) of ISDEAA or a procurement document issued under Federal or tribal
procurement acquisition regulations.
Days means calendar days, except where the last day of any time
period specified in this part falls on a Saturday, Sunday, or a Federal
holiday, the period shall carry over to the next business day unless
otherwise prohibited by law.
Design means services performed by licensed design professionals
related to preparing drawings, specifications, and other design
submissions specified in the contract or agreement, as well as services
provided by or for licensed design professionals during the bidding/
negotiating, construction, and operational phases of the project.
DOI means the Department of the Interior.
[[Page 43106]]
FHWA means the Federal Highway Administration of the Department of
Transportation.
FTA means the Federal Transit Administration of the Department of
Transportation.
Governmental subdivision of a tribe means a unit of a federally-
recognized tribe which is authorized to participate in an IRR Program
activity on behalf of the tribe.
Indian means a person who is a member of a Tribe or as otherwise
defined in 25 U.S.C. 450b.
Indian Reservation Road (IRR) means a public road that is located
within or provides access to an Indian reservation or Indian trust
land, or restricted Indian land that is not subject to fee title
alienation without the approval of the Federal government, or Indian or
Alaska Native Villages, groups, or communities in which Indians and
Alaska Natives reside, whom the Secretary of the Interior has
determined are eligible for services generally available to Indians
under Federal laws specifically applicable to Indians.
IRR Bridge Program means the program authorized under 23 U.S.C.
202(d)(4) using IRR Program funds for the improvement of deficient IRR
highway bridges.
IRR Inventory means a comprehensive database of all transportation
facilities eligible for IRR Program funding by tribe, reservation, BIA
agency and region, Congressional district, State, and county. Other
specific information collected and maintained under the IRR Program
includes classification, route number, bridge number, current and
future traffic volumes, maintenance responsibility, and ownership.
IRR Program means a part of the Federal Lands Highway Program
established in 23 U.S.C. 204 to address transportation needs of tribes.
IRR Program construction funds means the pool of funds BIA
distributes according to the Relative Need Distribution Factor.
IRR Program funds means the funds covered in chapter 2 of title 23
U.S.C. and the associated program management costs. These funds are
used for:
(1) Transportation planning, research, and engineering; and
(2) Construction of highways, roads, parkways, or transit
facilities within or providing access to Indian lands, communities, and
Alaska Native villages.
IRR Program management and oversight funds means those funds
authorized by Congress to pay the cost of performing IRR Program
management activities.
IRR System means all the roads and bridges that comprise the IRR.
IRR transportation facilities means public roads, bridges, drainage
structures, culverts, ferry routes, marine terminals, transit
facilities, boardwalks, pedestrian paths, trails, and their
appurtenances, and other transportation facilities as designated by the
tribe and the Secretary.
IRR Transportation Improvement Program (IRRTIP) means a list
developed by BIA of projects programmed for construction in the next 3
to 5 years.
ISDEAA means the Indian Self-Determination and Education Assistance
Act of 1975, Public Law 93-638, as amended.
Maintenance means the preservation of the entire highway, including
surface, shoulders, roadsides, structures, and such traffic-control
devices as are necessary for safe and efficient utilization of the
highway.
NBI means the national bridge inventory, which is the database of
structural and appraisal data collected to fulfill the requirements of
the National Bridge Inspection Standards, as defined in 23 CFR part
650, subpart C. Each State and BIA must maintain an inventory of all
bridges that are subject to the NBI standards and provide this data to
the Federal Highway Administration (FHWA). The NBI is maintained and
monitored by the FHWA Office of Bridge Technology.
Office of Self-Governance (OSG) means the office within the Office
of the Assistant Secretary--Indian Affairs, Department of the Interior,
that is responsible for implementing and developing tribal self-
governance.
Program means any program, function, service, activity, or portion
thereof.
Project Planning means project-related activities that precede the
design phase of a transportation project. Examples of these activities
are: Collecting data on traffic, accidents, or functional, safety or
structural deficiencies; corridor studies; conceptual studies,
environmental studies; geotechnical studies; archaeological studies;
project scoping; public hearings; location analysis; preparing
applications for permits and clearances; and meetings with facility
owners and transportation officials.
Proposed road means a road which does not currently exist and needs
to be constructed.
Public Authority means a Federal, State, county, town, or township,
Indian tribe, municipal, or other local government or instrumentality
with authority to finance, build, operate, or maintain toll or toll-
free facilities.
Public road means any road or street under the jurisdiction of and
maintained by a public authority and open to public travel.
Real Property means any interest in land together with the
improvements, structures, and fixtures and appurtenances.
Regionally significant project means a project that modifies a
facility that serves regional transportation needs and would normally
be included in the modeling of a metropolitan area's transportation
network. The term includes work on principal arterial highways and all
fixed guideway transit facilities that offer a significant alternative
to regional highway travel. (``Regional transportation needs'' includes
access to and from the area outside of the region; major planned
developments such as new retail malls, sports complexes, etc.; or
transportation terminations, as well as most terminals themselves).
Rehabilitation means the work required to restore the structural
integrity of transportation facilities as well as work necessary to
correct safety defects.
Relocation means the adjustment of transportation facilities and
utilities required by a highway project. It includes removing and
reinstalling the facility, including necessary temporary facilities;
acquiring necessary right-of-way on the new location; moving,
rearranging or changing the type of existing facilities; and taking any
necessary safety and protective measures. It also means constructing a
replacement facility that is both functionally equivalent to the
existing facility and necessary for continuous operation of the utility
service, the project economy, or sequence of highway construction.
Relocation Services means payment and assistance authorized by the
Uniform Relocation and Real Property Acquisitions Policy Act, 42 U.S.C.
4601 et seq., as amended.
Rest area means an area or site established and maintained within
or adjacent to the highway right-of-way or under public supervision or
control for the convenience of the traveling public.
Secretaries means the Secretary of the Interior and the Secretary
of Transportation.
Secretary means the Secretary of the Interior or her/his designee
authorized to act on behalf of the Secretary.
Secretary of Transportation means the Secretary of Transportation
or a designee authorized to act on behalf of the Secretary.
[[Page 43107]]
State transportation agency means that department, commission,
board, or official of any State charged by its laws with the
responsibility for highway construction. The term ``State'' would be
considered equivalent to ``State transportation agency'' if the context
so implies.
STIP means Statewide Transportation Improvement Program. It is a
financially constrained, multi-year list of transportation projects.
The STIP is developed under 23 U.S.C. 134 and 135, and 49 U.S.C. 5303-
5305. The Secretary of Transportation reviews and approves the STIP for
each State.
Transit means services, equipment, and functions associated with
the public movement of people served within a community or network of
communities.
Transportation planning means developing land use, economic
development, traffic demand, public safety, health and social
strategies to meet transportation current and future needs.
Tribal transportation planning funds means funds referenced in 23
U.S.C. 204(j).
Tribe means any tribe, nation, band, pueblo, rancheria,colony, or
community, including any Alaska Native village or regional or village
corporation as defined or established under the Alaska Native Claims
Settlement Act that is federally recognized by the U.S. government for
special programs and services provided by the Secretary to Indians
because of their status as Indians.
TTIP means Tribal Transportation Improvement Program. It is a
multi-year financially constrained list of proposed transportation
projects developed by a tribe from the tribal priority list or the
long-range transportation plan.
U.S.C. means the United States Code.
Sec. 170.6 Information Collection.
The information collection requirements contained in this part have
been approved by the Office of Management and Budget under 44 U.S.C. et
seq. and assigned clearance number 1076-0161. This information
collection is specifically found in subparts C and D of this part and
represent a total reporting burden to the public of 31,470 hours or an
average of 56.5 hours per respondent. A Federal agency may not conduct
or sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
Comments and suggestions on the burden estimate or any other aspect of
the form should be sent directly to the Office of Management and
Budget; Attention: Interior Desk Officer; Washington, DC 20503; and a
copy of the comments should be sent to the Information Collection
Clearance Officer, Bureau of Indian Affairs, 1849 C Street, NW.,
Washington, DC 20240.
Subpart B--Indian Reservation Roads Program Policy and Eligibility
Consultation, Collaboration, Coordination
Sec. 170.100 What do the terms ``consultation, collaboration, and
coordination'' mean?
(a) Consultation means government-to-government communication in a
timely manner by all parties about a proposed or contemplated decision
in order to:
(1) Secure meaningful tribal input and involvement in the decision-
making process; and
(2) Advise the tribe of the final decision and provide an
explanation.
(b) Collaboration means that all parties involved in carrying out
planning and project development work together in a timely manner to
achieve a common goal or objective.
(c) Coordination means that each party:
(1) Shares and compares in a timely manner its transportation
plans, programs, projects, and schedules with the related plans,
programs, projects, and schedules of the other parties; and
(2) Adjusts its plans, programs, projects, and schedules to
optimize the efficient and consistent delivery of transportation
projects and services.
Sec. 170.101 What is the IRR Program consultation and coordination
policy?
(a) The IRR Program's government-to-government consultation and
coordination policy is to foster and improve communication,
cooperation, and coordination among tribal, Federal, state, and local
governments and other transportation organizations when undertaking the
following, similar, or related activities:
(1) Identifying high-accident locations and locations for improving
both vehicle and pedestrian safety;
(2) Developing State, metropolitan, regional, IRR, and tribal
transportation improvement programs that impact tribal lands,
communities, and members;
(3) Developing short- and long-range transportation plans;
(4) Developing IRR Program transportation projects;
(5) Developing environmental mitigation measures necessary to
protect and/or enhance Indian lands and the environment, and counteract
the impacts of the projects;
(6) Developing plans or projects to replace or rehabilitate
deficient IRR bridges;
(7) Developing plans or projects for disaster and emergency relief
response and the repair of eligible damaged IRR transportation
facilities;
(8) Assisting in the development of State and tribal agreements
related to the IRR Program;
(9) Developing and improving transit systems serving Indian lands
and communities; and
(10) Assisting in the submission of discretionary grant
applications for State and Federal funding for IRR transportation
facilities.
(b) Tribes and State and Federal Government agencies may enter into
intergovernmental Memoranda of Agreement (MOA) to streamline and
facilitate consultation, collaboration, and coordination.
Sec. 170.102 How do the Departments consult, collaborate, and
coordinate with tribal governments?
The Department of the Interior and the Department of Transportation
operate within a government-to-government relationship with federally
recognized tribes. As a critical element of this relationship, these
agencies should assess the impact of Federal transportation policies,
plans, projects, and programs on tribal rights and interests to ensure
that these rights and concerns are appropriately considered.
Sec. 170.103 What goals and principles guide the Secretaries?
When undertaking transportation activities affecting tribes, the
Secretaries should, to the maximum extent permitted by law:
(a) Establish regular and meaningful consultation and collaboration
with affected tribal governments, including facilitating the direct
involvement of tribal governments in short- and long-range Federal
transportation planning efforts;
(b) Promote the rights of tribal governments to govern their own
internal affairs;
(c) Promote the rights of tribal governments to receive direct
transportation services from the Federal Government or to enter into
agreements to directly operate any tribally related transportation
programs serving tribal members;
(d) Ensure the continuation of the trust responsibility of the
United States to tribes and Indian individuals;
(e) Reduce the imposition of unfunded mandates upon tribal
governments;
[[Page 43108]]
(f) Encourage flexibility and innovation in the implementation of
the IRR Program;
(g) Reduce, streamline, and eliminate unnecessarily restrictive
transportation policies, guidelines, or procedures;
(h) Ensure that tribal rights and interests are appropriately
considered during program development;
(i) Ensure that the IRR Program is implemented consistent with
tribal sovereignty and the government-to-government relationship; and
(j) Consult with, and solicit the participation of, tribes in the
development of the annual BIA budget proposals.
Sec. 170.104 Must the Secretary consult with tribal governments
before obligating IRR Program funds?
Yes. Before obligating IRR program funds on any project that is for
direct service activities, the Secretary must consult with the affected
tribe to determine the tribal preferences concerning the project. The
Secretary must provide information in accordance with Sec. 170.600
within 30 days of the Notice of Availability of Funds publication in
the Federal Register.
Sec. 170.105 Are funds available for consultation, collaboration, and
coordination activities?
To fund consultation, collaboration, and coordination of IRR
Program activities, tribes may use:
(a) The tribes' IRR Program allocations;
(b) Tribal Priority Allocation (TPA) funds;
(c) Administration for Native Americans (ANA) funds;
(d) Economic Development Administration (EDA) funds;
(e) United States Department of Agriculture (USDA) Rural
Development funds;
(f) Community Development Block Grant (CDBG) funds; Indian Housing
Block Grant (IHBG) funds;
(g) Indian Health Service Tribal Management Grant (IHSTMG) funds;
(h) General funds of the tribal government; and
(i) Any other funds available for the purpose of consultation,
collaboration, and coordination activities.
Sec. 170.106 When must State governments consult with tribes?
Each State must develop the State Transportation Improvement
Program (STIP) in consultation with tribes and BIA in those areas under
Indian tribal jurisdiction. This includes providing for a fully
coordinated transportation planning process that coordinates
transportation planning efforts carried out by the State with
transportation planning efforts carried out by tribes. The statewide
and metropolitan planning organization requirements are in 23 U.S.C.
134 and 135. Regulations can be found at 23 CFR part 450.
Sec. 170.107 Should planning organizations and local governments
consult with tribes when planning for transportation projects?
Yes. The Department's policy is to foster and improve
communication, cooperation, and coordination among metropolitan
planning organizations (MPOs), regional planning organizations (RPOs),
local governments, municipal governments, and tribes on transportation
matters of common concern. Accordingly, planning organizations and
local governments should consult with tribal governments when planning
for transportation projects.
Sec. 170.108 Should Indian tribes and BIA consult with States'
planning organizations and local governments in the development of
their IRRTIP?
Yes.
(a) All regionally significant IRR Program projects must be:
(1) Developed in cooperation with State and metropolitan planning
organizations; and
(2) Included in appropriate Federal Lands Highway Program
transportation improvement programs for inclusion in state and
metropolitan plans.
(b) BIA and tribes are encouraged to consult with States,
metropolitan and regional planning organizations, and local and
municipal governments, on transportation matters of common concern.
Sec. 170.109 How do the Secretaries prevent discrimination or adverse
impacts?
In administering the IRR Program, the Secretaries ensure that
nondiscrimination and environmental justice principles are integral
program elements. The Secretaries consult with tribes early in the
program development process to identify potential discrimination and to
recommend corrective actions to avoid disproportionately high and
adverse effects on tribes and Native American populations.
Sec. 170.110 How can State and local governments prevent
discrimination or adverse impacts?
(a) Under 23 U.S.C. 134 and 135, and 23 CFR part 450, State and
local government officials should consult and work with tribes early in
the development of programs to:
(1) Identify potential discrimination; and
(2) Recommend corrective actions to avoid disproportionately high
and adverse effects on tribes and Native American populations.
(b) Examples of adverse effects include, but are not limited to:
(1) Impeding access to tribal communities or activities;
(2) Creating excessive access to culturally or religiously
sensitive areas;
(3) Negatively affecting natural resources, trust resources, tribal
businesses, religious, and cultural sites;
(4) Harming indigenous plants and animals; and
(5) Impairing the ability of tribal members to engage in
commercial, cultural, and religious activities.
Sec. 170.111 What can a tribe do if discrimination or adverse impacts
occur?
If discrimination or adverse impacts occur, a tribe should take the
following steps in the order listed:
(a) Take reasonable steps to resolve the problem directly with the
State or local government involved;
(b) Contact BIA, FHWA, or the Federal Transit Authority (FTA), as
appropriate, to report the problem and seek assistance in resolving the
problem.
Eligible Uses if IRR Program Funds
Sec. 170.115 What activities may be funded with IRR Program funds?
(a) IRR Program funds may be used:
(1) For all of the items listed in appendix A to this subpart;
(2) For other purposes identified in this part; or
(3) For other purposes recommended by the IRR Program Coordinating
Committee under the procedures in Appendix A to Subpart B (35) and
Sec. 170.156 and approved by FHWA or BIA pursuant to Sec. 170.117.
(b) Each of the items listed in Appendix A must be interpreted in a
manner that permits, rather than prohibits, a proposed use of funds.
Sec. 170.116 What activities are not eligible for IRR Program
funding?
IRR Program funds cannot be used for any of the following:
(a) Routine maintenance work such as: grading shoulders and
ditches; cleaning culverts; snow removal, roadside mowing, normal sign
repair and replacement, painting roadway structures, and the
maintaining, cleaning, or repair of bridge appurtenances;
(b) Structures and erosion protection unrelated to transportation
and roadways;
(c) General reservation planning not involving transportation;
[[Page 43109]]
(d) Landscaping and irrigation systems not involving transportation
programs and projects;
(e) Work performed on projects that are not included on an FHWA-
approved IRR Transportation Improvement Program (TIP), unless otherwise
authorized by the Secretary of the Interior and the Secretary of
Transportation;
(f) Purchase of equipment unless authorized by Federal law or in
this part; or
(g) Condemnation of land for recreational trails.
Sec. 170.117 How can a tribe determine whether a new use of funds is
allowable?
(a) A tribe that proposes new uses of IRR Program funds must ask
BIA in writing whether the proposed use is eligible under Federal law.
The tribe must also provide a copy of its inquiry to FHWA.
(1) In cases involving eligibility questions that refer to 25
U.S.C., BIA will determine whether the new proposed use of IRR Program
funds is allowable and provide a written response to the requesting
tribe within 45 days of receiving the written inquiry. Tribes may
appeal a denial of a proposed use by BIA under 25 CFR part 2. The
address is: Department of the Interior, BIA, Division of
Transportation, 1849 C Street, NW., MS 4058-MIB, Washington, DC 20240.
(2) In cases involving eligibility questions that refer to the IRR
Program or 23 U.S.C., BIA will refer an inquiry to FHWA for decision.
FHWA must provide a written response to the requesting tribe within 45
days of receiving the written inquiry from the tribe. Tribes may appeal
denials of a proposed use by the FHWA to: FHWA, 400 7th St., SW., HFL-
1, Washington, DC 20590.
(b) To the extent practical, the deciding agency must consult with
the IRR Program Coordinating Committee before denying a request. BIA
and FHWA will send copies of all eligibility determinations to the IRR
Program Coordinating Committee and BIA Regional offices.
(c) If either BIA or FHWA fails to issue the requesting tribe a
timely response to the eligibility inquiry, the proposed use will be
deemed to be allowable for that specific project.
Use of IRR and Cultural Access Roads
Sec. 170.120 What restrictions apply to the use of an Indian
Reservation Road?
Indian Reservation Roads (IRRs) must be open and available for
public use. However, the public authority having jurisdiction over
these roads may:
(a) Restrict road use or close roads temporarily when required for
public safety, fire prevention or suppression, fish or game protection,
low load capacity bridges, prevention of damage to unstable roadbeds,
or as contained in Sec. Sec. 170.122 and 170.813;
(b) Conduct engineering and traffic analysis to determine maximum
speed limits, maximum vehicular size, and weight limits, and identify
needed traffic control devices; and
(c) Erect, maintain, and enforce compliance with signs and pavement
markings.
Sec. 170.121 What is a cultural access road?
(a) A cultural access road is a public road that provides access to
sites for cultural purposes as defined by individual tribal traditions,
which may include, for example:
(1) Sacred and medicinal sites;
(2) Gathering medicines or materials such as grasses for basket
weaving; or
(3) Other traditional activities, including, but not limited to,
subsistence hunting, fishing and gathering.
(b) A tribal government may unilaterally designate a tribal road as
a cultural access road. A cultural access road designation is an
entirely voluntary and internal decision made by the tribe to help it
and other public authorities manage, protect, and preserve access to
locations that have cultural significance.
(c) In order for a tribal government to designate a non-tribal road
as a cultural access road, it must enter into an agreement with the
public authority having jurisdiction over the road.
(d) Cultural access roads may be included in the IRR Inventory if
they meet the definition of an IRR.
Sec. 170.122 Can a tribe close a cultural access road?
(a) A tribe with jurisdiction over a cultural access road can close
it. The tribe can do this:
(1) During periods when the tribe or tribal members are involved in
cultural activities; and
(2) In order to protect the health and safety of the tribal members
or the general public.
(b) Cultural access roads designated through an agreement with a
public authority may only be closed according to the provisions of the
agreement. See Sec. 170.121(c).
Seasonal Transportation Routes
Sec. 170.123 What are seasonal transportation routes?
Seasonal transportation routes are non-recreational transportation
routes in the IRR Inventory that provide access to Indian communities
or villages and may not be open for year-round use. They include
snowmobile trails, ice roads, and overland winter roads.
Sec. 170.124 Does the IRR Program cover seasonal transportation
routes?
Yes. IRR Program funds can be used to build seasonal transportation
routes and a tribe may request that BIA include seasonal transportation
routes in the IRR Inventory.
(a) Standards for seasonal transportation routes are found in the
design standards identified in appendix B to subpart D. A tribe can
also develop or adopt standards that are equal to or exceed these
standards.
(b) Construction of a seasonal transportation route requires a
right-of-way or use permit.
IRR Housing Access Roads
Sec. 170.127 What terms apply to access roads?
(a) IRR housing access road means a public road on the IRR System
that provides access to a housing cluster.
(b) IRR housing street means a public road on the IRR System that
provides access to adjacent homes within a housing cluster.
(c) Housing cluster means three or more existing or proposed
housing units.
Sec. 170.128 Are housing access roads and housing streets eligible
for IRR Program funding?
Yes. IRR housing access roads and housing streets on public rights-
of-way are eligible for construction, reconstruction, and
rehabilitation funding under the IRR Program. Tribes, following the
transportation planning process as required in subpart D, may include
housing access roads and housing street projects on the Tribal
Transportation Improvement Program (TTIP). IRR Program funds are
available after the projects are listed on the FHWA-approved IRRTIP.
Toll, Ferry and Airport Facilities
Sec. 170.130 How can tribes use Federal highway funds for toll and
ferry facilities?
(a) A tribe can use Federal-aid highway funds, including IRR
Program funds, to study, design, construct, and operate toll highways,
bridges, and tunnels, as well as ferry boats and ferry terminal
facilities. The following table shows how a tribe can initiate
construction of these facilities.
[[Page 43110]]
------------------------------------------------------------------------
To initiate construction of a . . . A tribe must . . .
------------------------------------------------------------------------
(1) Toll highway, bridge, or tunnel.... (i) Meet and follow the
requirements set forth in 23
U.S.C. 129; and
(ii) If IRR Program funds are
used, enter into a self-tunnel
governance agreement or self-
determination contract with
the Secretary of the Interior.
(2) Ferry boat or ferry terminal....... Meet and follow the
requirements set forth in 23
U.S.C. 129(c).
------------------------------------------------------------------------
(b) A tribe can use IRR Program funds to fund 100 percent of the
conversion or construction of a toll facility.
(c) If a tribe obtains non-IRR Program Federal funding for the
conversion or construction of a toll facility, these funds will cover a
maximum of 80 percent of the project cost. In this case, the tribe may
use IRR Program funds for the required 20 percent local match.
Sec. 170.131 How can a tribe find out more about designing and
operating a toll facility?
Information on designing and operating a toll highway, bridge or
tunnel is available from the International Bridge, Tunnel and Turnpike
Association. The Association publishes a variety of reports,
statistics, and analyses. The Web site is located at http://www.ibtta.org. Information is also available from FHWA.
Sec. 170.132 When can a tribe use IRR Program funds for airport
facilities?
(a) A tribe can use IRR Program funds for construction of airport
and heliport access roads, if the access roads are open to the public.
(b) A tribe cannot use IRR Program funds to construct or improve
runways, airports or heliports. Funds for these uses are available
under the Airport Improvement Program (AIP) from the Federal Aviation
Administration (FAA). (See FAA Advisory Circular No. 150/5370-10A.)
Recreation, Tourism and Trails
Sec. 170.135 Can a tribe use Federal funds for its recreation,
tourism, and trails program?
Yes. A tribe, tribal organization, tribal consortium, or BIA may
use IRR Program funds for recreation, tourism, and trails programs if
the programs are included in the IRRTIP. Additionally, the following
Federal programs for recreation, tourism, and trails are possible
sources of Federal funding:
(a) IRR Program (23 U.S.C. 204);
(b) Surface Transportation Program--Transportation Enhancement (23
U.S.C. 133);
(c) National Scenic Byway Program (23 U.S.C. 162);
(d) Recreational Trails Program (23 U.S.C. 206);
(e) National Highway System (23 U.S.C. 104);
(f) Public Lands Discretionary Program (23 U.S.C. 204);
(g) Other funding from other Federal departments; and
(h) Other funding that Congress may authorize and appropriate.
Sec. 170.136 How can a tribe obtain funds?
(a) To receive funding for programs that serve recreation, tourism,
and trails' goals, a tribe should:
(1) Identify a program meeting the eligibility guidelines for the
funds and have it ready for development; and
(2) Have a viable project ready for improvement or construction,
including necessary permits.
(b) FHWA provides Federal funds to the States for recreation,
tourism, and trails under 23 U.S.C. 104, 133, 162, 204, and 206. States
solicit proposals from tribes and local governments in their
transportation planning process. A tribe may ask:
(1) To administer these programs under the State's locally
administered project program; or
(2) That for projects that are otherwise contractible under Public
Law 93-638 (25 U.S.C. 450 et seq.), that the State return the funds to
FHWA and have them transferred to BIA for tribal self-determination
contracts or self-governance agreements under ISDEAA.
(c) Congress provides funds under 23 U.S.C. 205 and 214 for
activities for Federal agencies. A tribe can contract with all agencies
within the Department of the Interior under ISDEAA for this work.
(d) In order to use National Scenic Byway funds, the project must
be on a road designated as a State or Federal scenic byway.
(e) In order to expend non-IRR Program Federal funds for its
recreation, tourism, and trails programs, a tribe must ensure that the
project is on an approved TIP or STIP.
Sec. 170.137 What types of activities can a recreation, tourism, and
trails program include?
(a) The following are examples of activities that tribes and tribal
organizations may perform under a recreation, tourism, and trails
program:
(1) Transportation planning for tourism and recreation travel;
(2) Adjacent vehicle parking areas;
(3) Development of tourist information and interpretative signs;
(4) Provision for non-motorized trail activities including
pedestrians and bicycles;
(5) Provision for motorized trail activities including all terrain
vehicles, motorcycles, snowmobiles, etc.;
(6) Construction improvements that enhance and promote safe travel
on trails;
(7) Safety and educational activities;
(8) Maintenance and restoration of existing recreational trails;
(9) Development and rehabilitation of trailside and trailhead
facilities and trail linkage for recreational trails;
(10) Purchase and lease of recreational trail construction and
maintenance equipment;
(11) Safety considerations for trail intersections;
(12) Landscaping and scenic enhancement (see 23 U.S.C. 319);
(13) Bicycle Transportation and pedestrian walkways (see 23 U.S.C.
217); and
(14) Trail access roads.
(b) The items listed in paragraph (a) of this section are not the
only activities that are eligible for recreation, tourism, and trails
funding. The funding criteria may vary with the specific requirements
of the programs.
(c) Tribes may use IRR Program funds for any activity that is
eligible for Federal funding under any provision of title 23 U.S.C.
Sec. 170.138 Can roads be built in roadless and wild areas?
Under 25 CFR part 265 no roads can be built in roadless and wild
areas on Indian reservations.
Highway Safety Functions
Sec. 170.141 What Federal funds are available for a tribe's highway
safety activities?
Federal funds available for a tribe's highway safety activities
include, but are not limited to, the following which may be amended,
repealed, or added to:
(a) The tribes' IRR Program allocations under 23 U.S.C. 204;
(b) Highway Safety Program funds under 23 U.S.C. 402;
(c) Occupant protection program funds under 23 U.S.C. 405;
(d) Alcohol traffic safety program funds under 23 U.S.C. 408;
[[Page 43111]]
(e) Alcohol-impaired driver countermeasures under 23 U.S.C. 410;
(f) Funding for highway safety activities from the U.S. Department
of Health and Human Services (HHS);
(g) Indian Highway Safety Program 25 CFR 181; and
(h) Other funding that Congress may authorize and appropriate.
Sec. 170.142 How can tribes obtain funds to perform highway safety
projects?
There are two methods to obtain National Highway Traffic Safety
Administration (NHTSA) and other FHWA safety funds for highway safety
projects:
(a) FHWA provides safety funds to BIA under 23 U.S.C. 402. BIA
annually solicits proposals from tribes for use of these funds.
Proposals are processed under 25 CFR part 181. Tribes may obtain a
contract or agreement under ISDEAA for these projects.
(b) FHWA provides funds to the States under 23 U.S.C. 402, 405,
408, and 410. States annually solicit proposals from tribes and local
governments. Tribes may request:
(1) To administer these programs under the State's locally
administered project program; or
(2) That for projects that are otherwise contractible under Public
Law 93-638 (25 U.S.C. 450 et seq.), that the State return the funds to
FHWA and have them transferred to BIA for tribal self-determination
contracts or self-governance agreements under ISDEAA.
Sec. 170.143 How can IRR Program funds be used for highway safety?
A tribe, tribal organization, tribal consortium, or BIA may fund
projects to improve highway safety. Those projects that are not fully
funded by the BIA-administered Indian Highway Safety Program must be
incorporated into the FHWA-approved IRRTIP if IRR Program funds are
used to complete funding of the project.
Sec. 170.144 What are eligible highway safety projects?
The following are examples of activities that can be considered as
highway safety projects:
(a) Highway alignment improvement;
(b) Bridge widening;
(c) Pedestrian paths/sidewalks and bus shelters;
(d) Installation and replacement of signs when designated as, or
made part of, a highway safety project;
(e) Construction improvements that enhance and promote safe travel
on IRRs, such as guardrail construction and traffic markings;
(f) Development of a safety management system;
(g) Education and outreach highway safety programs, such as use of
child safety seats, defensive driving, and Mothers Against Drunk
Drivers;
(h) Development of a highway safety plan designed to reduce traffic
accidents and deaths, injuries, and property damage;
(i) Collecting data on traffic-related deaths, injuries and
accidents;
(j) Impaired driver initiatives;
(k) Child safety seat programs; and
(l) Purchasing necessary specific traffic enforcement equipment,
such as radar equipment, breathalyser, video cameras.
Sec. 170.145 Are other funds available for a tribe's highway safety
efforts?
Yes. Tribes may seek grant and program funding for highway safety
activities from appropriate Federal, state, and local agencies and
private grant organizations.
Transit Facilities
Sec. 170.148 What is a tribal transit program?
A tribal transit program is the planning, administration,
acquisition, and operation and maintenance of a system associated with
the public movement of people served within a community or network of
communities on or near Indian reservations, lands, villages,
communities, and pueblos.
Sec. 170.149 How do tribes identify transit needs?
Tribes identify transit needs during the tribal transportation
planning process (see subpart D). Transit projects using IRR Program
funds must be included in the FHWA-approved IRRTIP.
Sec. 170.150 What Federal funds are available for a tribe's transit
program?
Title 23 U.S.C. authorizes the use of IRR Program funds for transit
facilities as defined in this part. Additionally, there are many
sources of Federal funds that may help support tribal transit programs.
These include the Federal programs listed in this section. Note that
each program has its own terms and conditions of assistance. For
further information on these programs and their use for transit,
contact the FTA Regional Transit Assistance Program (RTAP) National
Transit Resource Center at http://www.ctaa.org/ntrc.
(a) U.S. Department of Agriculture (USDA): community facilities
loans; rural development loans; business and industrial loans; rural
enterprise grants; commerce, public works and economic development
grants; and economic adjustment assistance.
(b) U.S. Department of Housing and Urban Development (HUD):
community development block grants, supportive housing, tribal housing
loan guarantees, resident opportunity and support services.
(c) U.S. Department of Labor: Native American employment and
training, welfare-to-work grants.
(d) DOT: Welfare-to-Work, Indian Reservation Roads Program,
transportation and community and systems preservation, Federal transit
capital improvement grants, public transportation for non-urbanized
areas, capital assistance for elderly and disabilities transportation,
education, and Even Start.
(e) HHS: programs for Native American elders, community service
block grants, job opportunities for low-income individuals, Head Start
(capital or operating), administration for Native Americans programs,
Medicaid, HIV Care Grants, Healthy Start, and the Indian Health
Service.
Sec. 170.151 May a tribe or BIA use IRR Program funds as matching
funds?
(a) A tribe may use 23 U.S.C. 204 IRR Program funds provided under
a self-determination contract or self-governance agreement to meet
matching or cost participation requirements for any Federal or non-
Federal transit grant or program.
(b) BIA may use 23 U.S.C. 204 IRR Program funds to pay local
matching funds for transit facilities and transit activities funded
under 23 U.S.C. 104.
Sec. 170.152 What transit facilities and activities are eligible for
IRR Program funding?
Transit facilities and activities eligible for IRR Program funding
include, but are not limited to:
(a) Acquiring, constructing, supervising or inspecting new, used or
refurbished equipment, buildings, facilities, buses, vans, water craft,
and other vehicles for use in mass transportation;
(b) Transit-related intelligent transportation systems;
(c) Rehabilitating, remanufacturing, and overhauling a transit
vehicle;
(d) Preventive maintenance;
(e) Leasing transit vehicles, equipment, buildings, and facilities
for use in mass transportation;
(f) Third-party contracts for otherwise eligible transit facilities
and activities;
(g) Mass transportation improvements that enhance economic and
community development, such as bus shelters in shopping centers,
parking lots, pedestrian improvements, and support facilities that
incorporate other community services;
(h) Passenger shelters, bus stop signs, and similar passenger
amenities;
[[Page 43112]]
(i) Introduction of new mass transportation technology;
(j) Provision of fixed route, demand response services, and non-
fixed route paratransit transportation services (excluding operating
costs) to enhance access for persons with disabilities;
(k) Radio and communication equipment to support tribal transit
programs; and
(l) Transit capital project activities authorized by 49 U.S.C. 5302
(a)(1).
IRR Program Coordinating Committee
Sec. 170.155 What is the IRR Program Coordinating Committee?
(a) Under this part, the Secretaries will establish an IRR Program
Coordinating Committee that:
(1) Provides input and recommendations to BIA and FHWA in
developing IRR Program policies and procedures; and
(2) Supplements government-to-government consultation by
coordinating with and obtaining input from tribes, BIA, and FHWA.
(b) The Committee consists of 12 tribal regional representatives
(one from each BIA Region) and two non-voting Federal representatives
(FHWA and BIA). The Secretary of the Interior will select one alternate
tribal member from each BIA Region to attend committee meetings in the
absence of the regional representative.
(c) The Secretary must select regional tribal representatives and
alternates from nominees officially selected by the region's tribes.
(1) To the extent possible, the Secretary must make the selection
so that there is representation from a broad cross-section of large,
medium, and small tribes.
(2) Each tribal representative must be a tribal governmental
official or employee with authority to act for the tribal government.
(d) For purposes of continuity, the Secretary will appoint the
initial tribal representative and alternate from each BIA region to
either a 1-, 2-, or 3-year term so that only one-third of the tribal
representatives and alternates change every year. Thereafter, all
appointments must be for a term of 3 years.
(e) The Secretary of the Interior will provide guidance regarding
the replacement of representatives should the need arise.
Sec. 170.156 What are the IRR Program Coordinating Committee's
responsibilities?
(a) Committee responsibilities are to provide input and
recommendations to BIA and FHWA during the development or revision of:
(1) BIA/FHWA IRR Program Stewardship Plan;
(2) IRR Program policy and procedures;
(3) IRR Program eligible activities determination;
(4) IRR Program transit policy;
(5) IRR Program regulations;
(6) IRR Program management systems policy and procedures;
(7) IRR Program fund distribution formula (as outlined in Sec.
170.157); and
(8) National tribal transportation needs.
(b) The Committee may establish work groups to carry out its
responsibilities; and
(c) The Committee also reviews and provides recommendations on IRR
Program national concerns (including the implementation of this part)
brought to its attention.
Sec. 170.157 What is the IRR Program Coordinating Committee's role in
the funding process?
The Committee's role is to provide input and recommendations to BIA
and FHWA regarding:
(a) New IRR Inventory Data Format and Form;
(b) Simplified Cost to Construct (CTC) Methodology (including
formula calculations, formula program and design, and bid tab
methodology);
(c) Cost Elements;
(d) Over-Design Issues;
(e) Inflation Impacts on $1 Million Cap for IRRHPP and Emergency
Projects (including the IRRHPP Ranking System and emergency/disaster
expenditures report); and
(f) The impact of including funded but non-constructed projects in
the CTC calculation.
Sec. 170.158 How does the IRR Program Coordinating Committee conduct
business?
The Committee holds at least two meetings a year. Additional
Committee meetings may be called with the consent of one-third of the
Committee members or by BIA or FHWA. The Committee conducts business at
its meetings as follows:
(a) A quorum consists of eight Committee members of which a
majority must be tribal committee members.
(b) The Committee will operate by consensus or majority vote, as
determined by the Committee in its protocols.
(c) Any Committee member can submit an agenda item to the Chair.
(d) The Committee will work through a committee-approved annual
work plan and budget.
(e) Annually, the Committee must elect from among the Committee
membership a Chair, a Vice-Chair, and other officers. These officers
will be responsible for preparing for and conducting Committee meetings
and summarizing meeting results. These officers will also have other
duties that the Committee may prescribe.
(f) The Committee must keep the Secretary and the tribes informed
through an annual accomplishment report provided within 90 days after
the end of each fiscal year.
(g) The Committee's budget will be funded through the IRR Program
management and oversight funds, not to exceed $150,000 annually.
Indian Local Technical Assistance Program
Sec. 170.161 What is the Indian Local Technical Assistance Program?
The Indian Local Technical Assistance Program (Indian LTAP) is
authorized under 23 U.S.C. 504(b), and Sec. Sec. 170.161 through
170.176 are provided for information only. The Program assists tribal
governments and other IRR Program participants in extending their
technical capabilities by providing them greater access to
transportation technology, training, and research opportunities.
Sec. 170.162 How is the Indian LTAP funded?
FHWA uses Highway Trust Funds to fund the Indian LTAP. BIA may use
IRR Program management and oversight funds for Indian LTAP centers.
These funds may be used to operate Indian LTAP centers and to develop
training materials and products for these centers. The Indian LTAP
centers should apply for supplemental funding from other sources to
accommodate their needs.
Sec. 170.163 How are Indian LTAP recipients selected?
(a) FHWA announces Indian LTAP grant, cooperative agreement, and
contracting opportunities in the Federal Register. The announcements
state that tribal governments, a consortium of tribal governments,
State transportation departments, or universities are eligible for
these awards; indicate the funds available; and provide eligibility
criteria.
(b) FHWA sends the information in paragraph (a) of this section to
BIA for distribution to tribal governments and consortia. BIA must
provide written notice to tribal governments and consortia.
(c) A selection committee of Federal and tribal representatives
(see Sec. 170.164) reviews the proposals of eligible applicants and
recommends award recipients. FHWA selects and notifies
[[Page 43113]]
award recipients consistent with applicable law.
Sec. 170.164 How are tribal representatives nominated and chosen for
the selection committee?
In its written notice to tribal governments announcing
opportunities under the Indian LTAP, FHWA requests nominations within
each Indian LTAP's service area for representatives to serve on the
selection committee. Forty-five days after receiving the request for
nominations, FHWA will notify tribal governments of the nominees for
the service area. Each tribe then has 30 days to notify FHWA of its
selection from the nominees.
Sec. 170.165 May a tribe enter into a contract or agreement for
Indian LTAP funds?
Yes. If selected for an award as an Indian LTAP Center, a tribe
will enter into a cooperative agreement with the FHWA and be subject to
the guidelines of the agreement.
Sec. 170.166 What services do Indian LTAP centers provide?
(a) Indian LTAP centers provide transportation technology transfer
services, including education, training, technical assistance and
related support services to tribal governments and IRR Program
participants. Indian LTAPs will:
(1) Develop and expand tribal expertise in road and transportation
areas;
(2) Improve IRR Program performance;
(3) Enhance tribal transportation planning, project selection,
transit and freight programs;
(4) Develop transportation training and technical resource
materials and present workshops;
(5) Improve tribal tourism and recreational travel programs;
(6) Help tribes deal more effectively with transportation-related
problems by developing and sharing tribal transportation technology and
traffic safety systems and information with other transportation
agencies;
(7) Operate Indian technical centers in cooperation with State
transportation departments and universities;
(8) Provide technical assistance on transportation technology and
enhance new technology implementation in cooperation with the private
sector;
(9) Develop educational programs to encourage and motivate interest
in transportation careers among Native American students; and
(10) Act as information clearinghouses for tribal governments and
Indian-owned businesses on transportation-related topics.
(b) Unless otherwise stated in an Indian LTAP agreement, an Indian
technical assistance program center must, at a minimum:
(1) Maintain a current mailing list including, at a minimum, each
tribe and IRR Program participant within the service area;
(2) Publish a quarterly newsletter and maintain a Web site;
(3) Conduct or coordinate 10 workshops per year;
(4) Maintain a library of technical publications and video tapes;
(5) Provide technical assistance to IRR Program participants;
(6) Hold two advisory committee meetings a year;
(7) Develop a yearly action plan in consultation with the advisory
committee;
(8) Coordinate with State LTAPs, other Indian technical centers,
Rural Technical Assistance Program (RTAP) centers, tribal governments,
and local planning and transportation agencies to share and exchange
publications, videotapes, training material, and conduct joint
workshops;
(9) Consult with tribes and IRR Program participants concerning
technical assistance and training desired; and
(10) Prepare an annual report and distribute this report to service
area tribes.
Sec. 170.167 How does a tribe obtain services from an Indian LTAP
center?
A tribe that wants to obtain services should contact the Indian
LTAP center serving its service area or its BIA regional road engineer.
Information about the centers and the services provided can be found on
the World Wide Web at the following address: http://www.ltap.org.
Sec. 170.168 Do Indian LTAP centers offer services similar to those
of State LTAPs?
Yes. However, Indian LTAP centers are primarily responsible for
increasing the capacity of tribal governments to administer
transportation programs. State LTAPs also provide services to local and
rural governments, including tribal governments. Indian LTAP centers
should coordinate education and training opportunities with State LTAP
centers to maximize resources.
Sec. 170.169 What can a tribe do if Indian LTAP services are
unsatisfactory?
A tribal government can address concerns over quality of services
to the Indian LTAP Center Director, FHWA, and BIA. If the center does
not adequately address these concerns in writing within 30 calendar
days, the tribal government may request any or all of the following:
(a) A special meeting with the Center's Director and staff to
address the concern;
(b) A review of the Center's performance by FHWA and BIA or;
(c) Services from other Indian LTAP centers.
Sec. 170.170 How are Indian LTAP centers managed?
(a) Each Indian LTAP center is managed by its Center Director and
staff, with the advice of its technical panel under the Indian LTAP
agreements. FHWA, BIA, and tribes review the performance of the Indian
LTAP centers.
(b) Each Indian LTAP center has a technical panel consisting of one
BIA Regional Road Engineer, one FHWA representative, one state DOT
representative, and at least five tribal representatives from the
service area. The technical panel may, among other activities:
(1) Recommend center policies;
(2) Review and approve the annual action plan for submission to
FHWA for approval;
(3) Provide direction on the areas of technical assistance and
training;
(4) Review and approve the annual report for submission to FHWA for
approval;
(5) Develop recommendations for improving center operation services
and budgets; and
(6) Assist in developing goals and plans for obtaining or using
supplemental funding.
(c) The technical panel must meet at least twice a year. Tribal
representatives may request IRR Program funding to cover the cost of
participating in these committee meetings.
Sec. 170.171 How are tribal advisory technical panel members
selected?
(a) The Indian LTAP center requests nominations from tribal
governments and consortia within the service area for tribal
transportation representatives to serve on the technical panel.
(b) Tribes from the service area select tribal panel members from
those nominated.
Indian LTAP-Sponsored Education and Training Opportunities
Sec. 170.175 What Indian LTAP-sponsored transportation training and
educational opportunities exist?
There are many programs and sources of funding that provide tribal
transportation training and education opportunities. Each program has
its own terms and conditions of assistance. For
[[Page 43114]]
further information on these programs and their use for tribal
transportation education and training opportunities, contact the
regional Indian LTAP center or BIA regional road engineer. Appendix B
to this subpart contains a list of programs and funding sources.
Sec. 170.176 Where can tribes get scholarships and tuition for Indian
LTAP-sponsored education and training?
Tribes can get tuition and scholarship assistance for Indian LTAP-
sponsored education and training from the following sources:
(a) Indian LTAP centers;
(b) BIA-appropriated funds (for approved training); and
(c) IRR Program funds (for education and training opportunities and
technical assistance programs related to developing skills for
performing IRR Program activities).
Appendix A to Subpart B--Allowable Uses of IRR Program Funds
A. IRR Program funds can be used for the following planning and
design activities:
1. Planning and design of IRR transit facilities eligible for
IRR construction funding.
2. Planning and design of IRR roads and bridges.
3. Planning and design of transit facilities that provide access
to or are located within an Indian reservation or community.
4. Transportation planning activities, including planning for
tourism and recreational travel.
5. Development, establishment, and implementation of tribal
transportation management systems such as safety, bridge, pavement,
and congestion management.
6. Tribal transportation plans and transportation improvement
programs (TIPS).
7. Coordinated technology implementation program (CTIP)
projects.
8. Traffic engineering and studies.
9. Identification and evaluation of accident prone locations.
10. Tribal transportation standards.
11. Preliminary engineering studies.
12. Interagency program/project formulation, coordination and
review.
13. Environmental studies and archeological investigations
directly related to transportation programs and projects.
14. Costs associated with obtaining permits and/or complying
with tribal, Federal, state, and local environmental, archeological
and natural resources regulations and standards.
15. Development of natural habitat and wetland conservation and
mitigation plans, including plans authorized under the Water
Resources Development Act of 1990, 104 Stat. 4604 (Water Resources
Development Act).
16. Architectural and landscape engineering services related to
transportation programs.
17. Engineering design related to transportation programs,
including permitting activities.
18. Inspection of bridges and structures.
19. Indian local technical assistance program (LTAP) centers.
20. Highway and transit safety planning, programming, studies
and activities.
21. Tribal employment rights ordinance (TERO) fees.
22. Purchase or lease of advanced technological devices used for
transportation planning and design activities such as global
positioning units, portable weigh-in-motion systems, hand held data
collection units, related hardware and software, etc.
23. Planning, design and coordination for Innovative Readiness
Training projects.
24. Transportation planning and project development activities
associated with border crossings on or affecting tribal lands.
25. Public meetings and public involvement activities.
26. Leasing or rental of equipment used in transportation
planning or design programs.
27. Transportation-related technology transfer activities and
programs.
28. Educational activities related to bicycle safety.
29. Planning and design of mitigation of damage to wildlife,
habitat, and ecosystems caused by a transportation project.
30. Evaluation of community impacts such as land use, mobility,
access, social, safety, psychological, displacement, economic, and
aesthetic impacts.
31. Acquisition of land and interests in land required for
right-of-way, including control of access thereto from adjoining
lands, the cost of appraisals, cost of examination and abstract of
title, the cost of certificate of title, advertising costs, and any
fees incidental to such acquisition.
32. Cost associated with relocation activities including
financial assistance for displaced businesses or persons and other
activities as authorized by law.
33. On the job education including classroom instruction and
pre-apprentice training activities related to transportation
planning.
34. Other eligible activities as approved by FHWA.
35. Any additional activities identified by IRR Program
Coordinating Committee guidance and approved by the appropriate
Secretary (see Sec. 170.156).
36. Indirect general and administrative costs; and
37. Other eligible activities described in this part.
B. IRR Program funds can be used for the following construction
and improvement activities:
1. Construction, reconstruction, rehabilitation, resurfacing,
restoration, and operational improvements for IRR roads and highway
bridges including bridges and structures under 20 feet in length,
including the replacement of low-water crossings, regardless of
length, with bridges.
2. Construction or reconstruction of IRR roads and bridges
necessary to accommodate other transportation modes.
3. Construction of toll roads, highway bridges and tunnels, and
toll and non-toll ferry boats and terminal facilities, and
approaches thereto (except when on the Interstate System) to the
extent permitted under 23 U.S.C. 129.
4. Construction of projects for the elimination of hazards at
railway-highway crossings, including the separation or protection of
grades at crossings, the reconstruction of existing railroad grade
crossing structures, and the relocation of highways to eliminate
grade crossings.
5. Installation of protective devices at railway-highway
crossings.
6. Transit facilities, whether publicly or privately owned, that
serve Indian reservations and other communities or that provide
access to or are located within an Indian reservation or community
(see Sec. Sec. 170.148 through 170.152 for additional information).
7. Engineered pavement overlays that add to the structural value
and design life or increase the skid resistance of the pavement.
8. Tribally-owned, post-secondary vocational school roads and
bridges.
9. Road sealing.
10. Double bituminous surface and chip seals that are part of a
predefined stage of construction or form the final surface of low
volume roads.
11. Seismic retrofit, replacement, rehabilitation, and painting
of highway bridges.
12. Application of calcium magnesium acetate, sodium acetate/
formate, or other environmentally acceptable, minimally corrosive
anti-icing and de-icing compositions on highway bridges, and
approaches thereto and other elevated structures.
13. Installation of scour countermeasures for highway bridges
and other elevated structures.
14. Special pedestrian facilities built in lieu of streets or
roads, where standard street or road construction is not feasible.
15. Interpretive signs, standard traffic regulatory and guide
signs that are culturally relevant (native language, symbols, etc.)
that are a part of transportation projects.
16. Traffic barriers and bridge rails.
17. Engineered spot safety improvements.
18. Planning and development of rest areas, recreational trails,
parking areas, sanitary facilities, water facilities, and other
facilities that accommodate the traveling public.
19. Public approach roads and interchange ramps that meet the
definition of an Indian reservation road.
20. Construction of roadway lighting and traffic signals.
21. Adjustment or relocation of utilities directly related to
roadway work, not required to be paid for by local utility
companies.
22. Conduits crossing under the roadway to accommodate utilities
that are part of future development plans.
23. Restoration of borrow and gravel pits created by projects
funded from the IRR Program.
24. Force account and day labor work, including materials and
equipment rental, being performed in accordance with approved plans
and specifications.
25. Experimental features where there is a planned monitoring
and evaluation schedule.
26. Capital and operating costs for traffic monitoring,
management, and control facilities and programs.
[[Page 43115]]
27. Safely accommodating the passage of vehicular and pedestrian
traffic through construction zones.
28. Construction engineering including contract/project
administration, inspection, and testing.
29. Construction of temporary and permanent erosion control,
including landscaping and seeding of cuts and embankments.
30. Landscape and roadside development features.
31. Marine terminals as intermodal linkages.
32. Construction of visitor information centers, kiosks, and
related items.
33. Other appropriate public road facilities such as visitor
centers as determined by the Secretary of Transportation.
34. Facilities adjacent to roadways to separate pedestrians and
bicyclists from vehicular traffic for operational safety purposes,
or special trails on separate rights-of-way.
35. Construction of pedestrian walkways and bicycle
transportation facilities, such as a new or improved lane, path, or
shoulder for use by bicyclists and a traffic control device,
shelter, or parking facility for bicycles.
36. Facilities adjacent to roadways to separate modes of traffic
for safety purposes.
37. Acquisition of scenic easements and scenic or historic sites
provided they are part of an approved project or projects.
38. Debt service on bonds or other debt financing instruments
issued to finance IRR construction and project support activities.
39. Any project to encourage the use of carpools and vanpools,
including provision of carpooling opportunities to the elderly and
individuals with disabilities, systems for locating potential riders
and informing them of carpool opportunities, acquiring vehicles for
carpool use, designating existing highway lanes as preferential
carpool highway lanes, providing related traffic control devices,
and designating existing facilities for use for preferential parking
for carpools.
40. Fringe and corridor parking facilities including access
roads, buildings, structures, equipment improvements, and interests
in land.
41. Adjacent vehicular parking areas.
42. Costs associated with obtaining permits and/or complying
with tribal, Federal, state, and local environmental, archeological,
and natural resources regulations and standards on IRR projects.
43. Seasonal transportation routes, including snowmobile trails,
ice roads, overland winter roads, and trail markings. (See
Sec. Sec. 170.123 through 170.124.)
44. Tribal fees such as employment taxes (TERO), assessments,
licensing fees, permits, and other regulatory fees.
45. On the job education including classroom instruction and
pre-apprentice training activities related to IRR construction
projects such as equipment operations, surveying, construction
monitoring, testing, inspection and project management.
46. Installation of advance technological devices on IRR
transportation facilities such as permanent weigh-in-motion systems,
informational signs, intelligent transportation system hardware,
etc.
47. Tribal, cultural, historical, and natural resource
monitoring, management and mitigation.
48. Mitigation activities required by tribal, state, or Federal
regulatory agencies and 42 U.S.C. 4321, et seq., the National
Environmental Policy Act (NEPA).
49. Leasing or rental of construction equipment.
50. Coordination and construction materials for innovative
readiness training projects such as the Department of Defense (DOD),
the American Red Cross, the Federal Emergency Management Agency
(FEMA), etc.
51. Emergency repairs on IRR roads, bridges, trails, and
seasonal transportation routes.
52. Public meetings and public involvement activities.
53. Construction of roads on dams and levees.
54. Transportation enhancement activities as defined in 23
U.S.C. 101(a).
55. Modification of public sidewalks adjacent to or within IRR
transportation facilities.
56. Highway and transit safety infrastructure improvements and
hazard eliminations.
57. Transportation control measures such as employer-based
transportation management plans, including incentives, shared-ride
services, employer-sponsored programs to permit flexible work
schedules and other activities, other than clause (xvi) listed in
section 108(f)(1)(A) of the Clean Air Act, (42 U.S.C.
7408(f)(1)(A)).
58. Necessary environmental restoration and pollution abatement.
59. Trail development and related activities as identified in
Sec. Sec. 170.135-170.138.
60. Development of scenic overlooks and information centers.
61. Natural habitat and wetlands mitigation efforts related to
IRR road and bridge projects, including:
a. Participation in natural habitat and wetland mitigation
banks, including banks authorized under the Water Resources
Development Act, and
b. Contributions to tribal, statewide and regional efforts to
conserve, restore, enhance, and create natural habitats and wetland,
including efforts authorized under the Water Resources Development
Act.
62. Mitigation of damage to wildlife, habitat and ecosystems
caused as a result of a transportation project.
63. Construction of permanent fixed or moveable structures for
snow or sand control.
64. Cultural access roads.
65. Other eligible items as approved by the Federal Highway
Administration (FHWA).
66. Any additional activities identified by IRR Program
Coordinating Committee and approved by the appropriate Secretary
(see Sec. 170.156).
67. Other eligible activities described in this part.
Appendix B to Subpart B--Sources of Tribal Transportation Training and
Education Opportunities
The following is a list of some of the many governmental sources
for tribal transportation training and education opportunities.
There may be other non-governmental, tribal, or private sources not
listed here.
1. National Highway Institute training courses and fellowships
2. State and local technical assistance program workshops
3. Indian local technical assistance program workshops
4. FHWA and FTA Research Fellowships
5. Dwight David Eisenhower Transportation Fellowship (23 U.S.C. 504)
6. Intergovernmental personnel agreement assignments
7. BIA transportation cooperative education program
8. BIA force account operations
9. Federal Transit Administration workshops
10. State Departments of Transportation
11. Federal-aid highway construction and technology training
including skill improvement programs under 23 U.S.C. 140 (b)(c)
12. Other funding sources identified in Sec. 170.150 (Transit)
13. Department of Labor work force development
14. Indian Employment, Training, and Related Services Demonstration
Act, Public Law 102-477
15. Garrett Morgan Scholarship (FHWA)
16. NTRC--National Transit Resource Center
17. CTER--Council for Tribal Employment Rights
18. BIA Indian Highway Safety Program
19. FHWA/STIPDG and NSTISS Student Internship Programs (Summer
Transportation Internship Program for Diverse Groups and National
Summer Transportation Institute for Secondary Students)
20. Environmental Protection Agency (EPA)
21. Department of Commerce (DOC)
22. Department of Housing and Urban Development Community Planning
and Development
Subpart C--Indian Reservation Roads Program Funding
Tribal Transportation Allocation Methodology (TTAM)
Sec. 170.200 How does BIA allocate IRR Program funds?
This section sets forth the Tribal Transportation Allocation
Methodology (TTAM) that BIA uses to allocate IRR Program funds. After
appropriate statutory and regulatory set-asides, as well as other
takedowns, the remaining funds are allocated as follows:
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[GRAPHIC] [TIFF OMITTED] TR19JY04.001
(a) A statutorily determined percentage to a tribal transportation
planning program (under 23 U.S.C. 204(j)); and
(b) The remainder to a pool of funds designated as ``Remaining
funding available for distribution.'' This ``Remaining funding
available for distribution'' pool is further allocated as follows:
(1) 5 percent to a discretionary pool for IRR High Priority
Projects (IRRHPP); and
(2) 95 percent to pool for distribution by the following Relative
Need Distribution Factor (RNDF) as defined in Sec. 170.223:
(50 percent Cost to Construct + 30 percent Vehicle Miles Traveled + 20
percent Population)
(3) If the annual authorization is greater than $275 million, then
the amount above $275 million, after appropriate statutory and
regulatory set-asides, as well as other takedowns are applied, will be
allocated as follows:
(i) 12.5 percent to the IRRHPP (Sec. 170.205);
(ii) 12.5 percent to the Population Adjustment Factor (PAF) (Sec.
170.220); and
(iii) 75 percent to the RNDF (Sec. 170.223).
Sec. 170.201 How does BIA allocate and distribute tribal
transportation planning funds?
Upon request of a tribal government and approval by the BIA
Regional Office, BIA allocates tribal transportation planning funds
described in Sec. 170.403 pro rata according to the tribes' relative
need percentage from the RNDF described in Sec. 170.223. The tribal
transportation planning funds will be distributed in accordance with
the BIA procedures for self-governance tribes that negotiate tribal
transportation planning in their annual funding agreements and to BIA
Regional Offices for all other tribes.
Sec. 170.202 Does the Relative Need Distribution Factor allocate
funding among tribes?
Yes. The RNDF determines the amount of funding available to
allocate to the tribes for their approved IRR projects and activities
under 23 U.S.C. 202(d)(2). The IRR Program construction funds are
allocated pro rata according to the tribes' relative need percentage
from the Funding Formula.
(a) The IRR Program construction funds will be distributed in
accordance with the BIA procedures for self-governance tribes that
negotiate IRR construction projects into their AFA, and distributed to
BIA Regional Offices for all other tribes.
(b) In order for a tribe's IRR Program allocation to be expended on
a construction project, the project must be included in an FHWA-
approved Transportation Improvement Program (TIP).
IRR High Priority Project (IRRHPP)
Sec. 170.205 What is an IRR High Priority Project (IRRHPP)?
(a) The IRRHPP is a special funding pool that can be used:
(1) By a tribe whose annual allocation is insufficient to complete
its highest priority project;
(2) By a governmental subdivision of a tribe that is authorized to
administer the tribe's IRR Program funding and whose annual allocation
is insufficient to complete its highest priority project; or
(3) By any tribe for an emergency/disaster on any IRR
transportation facility.
(b) Eligible applicants may have only one IRRHPP application
pending at any time. This includes emergency/disaster applications.
(c) IRRHPP funds cannot be used for transportation planning,
research, routine maintenance activities, and items listed in Sec.
170.116.
[[Page 43117]]
Sec. 170.206 How is an emergency/disaster defined?
(a) An emergency/disaster is damage to an IRR transportation
facility that:
(1) Renders the facility impassable or unusable; and
(2) Is caused by either a natural disaster over a widespread area
or catastrophic failure from an external cause.
(b) Some examples of natural disasters are: floods, droughts,
earthquakes, tornadoes, landslides, avalanches, and severe storms.
(c) An example of a catastrophic failure is the collapse of a
highway bridge after being struck by a barge, truck, or landslide.
Sec. 170.207 What is the intent of IRRHPP emergency/disaster funding?
The intent of IRRHPP emergency/disaster funding is to provide
funding for a project that contains eligible work and would be approved
for FHWA-ERFO Program funding except that the disaster dollar threshold
for eligibility in the FHWA-ERFO program has not been met. Applicants
are encouraged to apply for FHWA-ERFO Program funding if the project
meets the requirements of the program.
Sec. 170.208 What funding is available for IRRHPP?
The IRRHPP funding level (see chart in Sec. 170.200) for the year
is:
(a) Authorization Amount up to $275 million--5 percent of the pool
of funds designated as ``Remaining funding available for
distribution''; plus
(b) Authorization Amount over $275 million--12.5 percent the amount
above $275 million after appropriate statutory and regulatory set-
asides, as well as other takedowns.
Sec. 170.209 How will IRRHPP applications be ranked and funded?
(a) BIADOT and the Federal Lands Highway (FLH) Program office will
determine eligibility and fund IRRHPP applications subject to
availability of funds and the following criteria:
(1) Existence of safety hazards with documented fatality and injury
accidents;
(2) Number of years since the tribe's last IRR Program construction
project completed;
(3) Readiness to proceed to construction or IRRBP design need;
(4) Percentage of project cost matched by other non-IRR Program
funds (projects with a greater percentage of other matched funds rank
ahead of lesser matches);
(5) Amount of funds requested (smaller requests receive greater
priority);
(6) Challenges caused by geographic isolation; and
(7) All weather access for: employment, commerce, health, safety,
educational resources, and housing.
(b) Funding is limited to the estimated cost of repairing damage to
the IRR transportation facility up to a maximum of $1 million per
application.
(c) A project submitted as an emergency/disaster must be at least
10 percent of a tribe's relative need distribution.
(d) BIA's regional roads engineer or the tribe, if it has plans,
specifications, and estimates (PS&E) approval authority will certify
the cost estimate in approving the plans, specifications, and estimates
for the IRRHPP.
(e) The Project Scoring Matrix is found in appendix A to subpart C.
Sec. 170.210 How may a tribe apply for IRRHPP?
A tribe may apply for IRRHPP funds by submitting a complete
application to BIADOT. The application must include:
(a) Project scope of work (deliverables, budget breakdown,
timeline);
(b) Amount of IRRHPP funds requested;
(c) Project information addressing ranking criteria identified in
Sec. 170.209, or the nature of the emergency/disaster;
(d) Documentation that the project meets the definition of an IRR
transportation facility and is in the IRR Inventory;
(e) Documentation of official tribal action requesting the IRRHPP
project; and
(f) Documentation from the tribe providing authority for BIA to
place the project on an IRRHPP TIP if the project is selected and
approved.
Sec. 170.211 What is the IRRHPP Funding Priority List?
The IRRHPP Funding Priority List (FPL) is the ranked IRRHPPs
approved for funding under Sec. 170.209.
(a) The number of projects on the FPL is limited by the amount of
IRRHPP funds available at the beginning of the fiscal year.
(b) BIA will place all projects on the FPL on an IRRHPP TIP and
forward them to FHWA for approval.
Sec. 170.212 What is the timeline for IRRHPPs?
(a) BIA will accept IRRHPP applications until December 31 each year
for projects during the following year. BIA processes IRRHPP
applications as shown in the following table:
------------------------------------------------------------------------
By . . . BIA will . . .
------------------------------------------------------------------------
(1) January 31............... Notify all applicants and Regions in
writing of acceptance of applications.
(2) March 31................. Coordinate with FLH to rank all accepted
applications in accordance with Appendix
A to Subpart C, develop the FPL, and
return unaccepted applications to the
applicant with an explanation of the
deficiencies.
(3) April 15................. Notify all accepted applicants of the
projects included on the FPL.
(4) May 15................... Distribute funds to BIA Regions or in
accordance with procedures of the Office
of Self-Governance for selected IRRHPP.
------------------------------------------------------------------------
(b) If total funding for accepted projects does not equal the total
funds available for IRRHPP, the remaining funds will be redistributed
by the Relative Need Distribution Factor in accordance with Appendix C
to subpart C.
(c) All IRRHPP funds must be obligated on or before August 15. If
it is anticipated that these funds cannot be obligated by the end of
the fiscal year, IRRHPP funds assigned to an approved project must be
returned to FHWA by August 1. BIA will redistribute these funds the
following fiscal year to those approved projects. (See Sec. 170.213.)
Sec. 170.213 How long are IRRHPP funds available for a project?
Any project not under contract for construction within 3 fiscal
years of its initial listing on an FPL will forfeit its unexpended
funding. Applicants may request, in writing, a one-time, 1-year
extension of this deadline from BIA. Upon completion of an IRRHPP,
funds that are reserved but not expended are to be recovered and
returned to the IRRHPP funding pool.
[[Page 43118]]
Sec. 170.214 How does award of an emergency/disaster project affect
projects on the FPL?
(a) A tribe may submit an emergency/disaster project any time
during the fiscal year. BIA considers these projects a priority and
funds them as follows:
(1) If a tribe submits a project before the issuance of the FPL and
it is determined as eligible for IRRHPP funds, BIA will provide funding
before providing funding for the other approved projects on the FPL; or
(2) If a tribe submits a project after the issuance of the FPL and
the distribution of the IRRHPP funds, BIA will provide funding when
funds provided to the FPL projects is returned to BIA due to their
inability to be obligated. (See Sec. 170.212(c).)
(b) If BIA uses funding previously designated for a project on the
FPL to fund a emergency/disaster project, the FPL project that lost its
funding will move to the top of the FPL for the following year.
Population Adjustment Factor
Sec. 170.220 What is the Population Adjustment Factor?
The Population Adjustment Factor (PAF) is a special portion of the
total IRR Program distribution calculated annually that provides for
broader participation in the IRR Program by tribes (or a governmental
subdivision of a tribe authorized to administer the tribe's IRR Program
funding). The PAF is based upon the population ranges and distribution
factors in appendix B to subpart C. The population data used is the
American Indian and Alaska Native Service Population developed by the
Department of Housing and Urban Development, under the Native American
Housing Assistance and Self-Determination Act (NAHASDA), (25 U.S.C.
4101 et seq.). Appendix B to subpart C explains how the PAF is derived.
The funds generated by the PAF can be used for transportation planning
or IRR projects.
Sec. 170.221 What funding is available for distribution using the
PAF?
When the annual authorization for the IRR Program is greater than
$275 million, 12.5 percent of the amount above $275 million after the
appropriate statutory and regulatory set-asides, as well as other
takedowns, is available for distribution using the PAF.
Relative Need Distribution Factor
Sec. 170.223 What is the Relative Need Distribution Factor (RNDF)?
The Relative Need Distribution Factor (RNDF) is a mathematical
formula used for distributing the IRR Program construction funds. The
RNDF is derived from a combination of the cost to construct, vehicle
miles traveled, and population. Appendix C to subpart C explains how
the RNDF is derived and applied.
IRR Inventory and Long-Range Transportation Planning (LRTP)
Sec. 170.225 How does the LRTP process relate to the IRR Inventory?
The LRTP process (see subpart D) is a uniform process that
identifies the transportation needs and priorities of the tribes. The
IRR Inventory is derived from transportation facilities identified
through LRTP. It is also a means for identifying projects for the
IRRHPP Program.
Sec. 170.226 How will this part affect the IRR Inventory?
The IRR Inventory defined in this part will expand the IRR
Inventory for funding purposes to include:
(a) All roads, highway bridges, and other eligible transportation
facilities that were previously approved in the BIA Road System in 1992
and each following year;
(b) All Indian reservation roads constructed using Highway Trust
funds since 1983;
(c) All designated IRR routes (25 CFR 170.442-170.444);
(d) Non-road transportation related facilities; and
(e) Other applicable IRR transportation facilities.
Sec. 170.227 How does BIA develop and use the IRR Inventory?
The IRR Inventory as defined in Sec. 170.442 identifies the
transportation need by providing the data that BIA uses to generate the
Cost to Construct (CTC) and Vehicle Miles Traveled (VMT) components of
RNDF. The IRR Inventory is developed through the LRTP process, as
described in Sec. Sec. 170.410 through 170.415. BIA Regional offices
maintain, certify, and enter the data for their region's portion of the
IRR Inventory database. Only project-specific transportation activities
are included in the IRR Inventory.
Sec. 170.228 Are all facilities included in the IRR Inventory used to
calculate CTC?
No. Projects/facilities proposed to receive construction funds on
an approved IRRTIP are not eligible for future inclusion in the
calculation of the CTC portion of the formula for a period of 5 years
thereafter.
General Data Appeals
Sec. 170.231 May a tribe challenge the data BIA uses in the RNDF?
(a) A tribe may submit a request to the BIA Regional Director to
revise the data for the tribe that BIA uses in the RNDF. The request
must include the tribe's data and written support for its contention
that the tribal data is more accurate than BIA's.
(b) A tribe may submit a data correction request at any time. In
order to impact the distribution in a given fiscal year, a data
correction request must be approved, or any subsequent appeals
resolved, by June 1 of the prior fiscal year.
(c) The BIA Regional Director must respond within 30 days of
receiving a data correction request under this section.
(1) Unless the BIA Regional Director determines that the existing
BIA data is more accurate, the BIA Regional Director must approve the
tribe's data correction request and accept the tribe's corrected data.
(2) If the BIA Regional Director disapproves the tribe's request,
the decision must include a detailed written explanation of the reasons
for the disapproval, copies of any supporting documentation (other than
the tribe's request) that the BIA Regional Director relied upon in
reaching the decision, and notice of the tribe's right to appeal the
decision.
(3) If the BIA Regional Director does not approve the tribe's
request within 30 days of receiving the request, the request must be
deemed disapproved.
Sec. 170.232 How does a tribe appeal a disapproval from the BIA
Regional Director?
(a) Within 30 days of receiving a disapproval, or within 30 days of
a disapproval by non-action of the BIA Regional Director, a tribe may
file a written notice of appeal to the Director, Bureau of Indian
Affairs, with a copy provided to the BIA Regional Director; and
(b) Within 30 days of receiving an appeal, the Director, Bureau of
Indian Affairs must issue a written decision upholding or reversing the
BIA Regional Director's disapproval. This decision must include a
detailed written explanation of the reasons for the disapproval, copies
of any supporting documentation that the Director, Bureau of Indian
Affairs relied upon in reaching the decision (other than the tribe's
request or notice of appeal), and notice of the tribe's right to appeal
the decision to the Interior Board of Indian Appeals under 25 CFR part
2.
[[Page 43119]]
Flexible Financing
Sec. 170.300 May tribes use flexible financing to finance IRR
transportation projects?
Yes. Tribes may use flexible financing in the same manner as States
to finance IRR transportation projects, unless otherwise prohibited by
law.
(a) Tribes may issue bonds or enter into other debt financing
instruments under 23 U.S.C. 122 with the expectation of payment of IRR
Program funds to satisfy the instruments.
(b) Under 23 U.S.C. 183, the Secretary of Transportation may enter
into an agreement for secured loans or lines of credit for IRR projects
meeting the requirements contained in 23 U.S.C. 182. Tribes or BIA may
service Federal credit instruments. The secured loans or lines of
credit must be paid from tolls, user fees, or other dedicated revenue
sources.
(c) Tribes may use IRR Program funds as collateral for loans or
bonds to finance IRR projects. Upon the request of a tribe, a BIA
region will provide necessary documentation to banks and other
financial institutions.
170.301 Can a tribe use IRR Program funds to leverage other funds or
pay back loans?
(a) A tribe can use IRR Program funds to leverage other funds.
(b) A tribe can use IRR Program funds to pay back loans or other
finance instruments for a project that:
(1) The tribe paid for in advance of the current year using non-IRR
Program funds; and
(2) Was included in FHWA-approved IRRTIP.
170.302 Can BIA regional offices borrow IRR Program funds from each
other?
Yes. A BIA Regional office, in consultation with tribes, may enter
into agreements to borrow IRR Program funds to assist another BIA
regional office in financing the completion of an IRR project. These
funds must be repaid within the next fiscal year. These agreements
cannot be executed during the last year of a transportation
authorization act unless Congress has authorized IRR Program funds for
the next year.
Sec. 170.303 Can a tribe apply for loans or credit from a State
infrastructure bank?
Yes. Upon the request of a tribe, BIA region will provide necessary
documentation to a State infrastructure bank to facilitate obtaining
loans and other forms of credit for an IRR project. A state
infrastructure bank is a state or multi-state fund that can offer loans
and other forms of credit to help project sponsors, such as tribes, pay
for transportation projects.
Appendix A to Subpart C.--IRR High Priority Project Scoring Matrix
--------------------------------------------------------------------------------------------------------------------------------------------------------
Score 10 5 3 1 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Accident and fatality rate for Severe............... X.................... Moderate............. Minimal............. No accidents.
candidate route \1\.
Years since last IRR construction Never................ Last project more Last project 5-9 Last project within Currently has project.
project completed. than 10 years ago. years ago. last 1 to 4 years.
Readiness to Proceed to PS&E Complete and Bridge Replacement Bridge Rehabilitation Non-bridge PS & E X.
Construction or IRRBP Design Need. approved. PS&E development PS&E development development Project.
Project. Project.
Percentage of Project matched by X.................... 80 percent or more by 20-79 percent by 1-19 percent........ No other funds.
other funds. other funds. other funds.
Amount of funds requested \2\..... X.................... 250,000 or less...... 250,001-500,000...... 500,001-750,000..... Over 750,000.
Geographic isolation.............. No external access to Substandard Primary Substandard Secondary Substandard access X.
community. access to community. access to community. to tribal facility.
All weather access for:........... Addresses all 6 Addresses 4 or 5 Addresses 3 elements. Addresses 2 elements Addresses 1 element.
--Employment...................... elements. elements.
--Commerce........................
--Health..........................
--Safety..........................
--Educational Resources...........
--Housing.........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ National Highway Traffic Safety Board standards.
\2\ Total funds requested, including preliminary engineering, construction, and construction engineering.
Appendix B to Subpart C--Population Adjustment Factor
1. The Population Adjustment Factor allows for participation in
the IRR Program by all tribes. This component of the funding formula
creates a special calculation of funding which is available in
accordance with the TTAM each fiscal year for a tribe based on the
population range within which the tribe is included. The following
table shows how BIA develops the PAF.
----------------------------------------------------------------------------------------------------------------
Distribution
Population range factor* Number of tribes** Funding amount per tribe
----------------------------------------------------------------------------------------------------------------
Less than 25........................... 1 N1...................... MBA*** x 1
25-100................................. 3.5 N2...................... MBA x 3.5
101-1000............................... 5.0 N3...................... MBA x 5.0
1001-10,000............................ 6.5 N4...................... MBA x 6.5
10,001+................................ 8 N5...................... MBA x 8
----------------------------------------------------------------------------------------------------------------
* Multiplier used to determine the PAF funding for the population ranges. For example, if $1000 is available for
the first population range (less than 25), then the second population range (25-100) will receive $3,500 or
3.5 times the amount available to the first population range.
** The number of tribes changes yearly.
*** The Minimum Base Allocation (MBA) is the dollar value to be multiplied by the distribution factor for each
population range to determine the distribution of the PAF.
[[Page 43120]]
2. The following example shows how the PAF applies to a total
IRR Program authorization for the allocation year of $375 million.
The five steps to calculate the Population Adjustment Factor are
applied as follows:
Step 1. For each population range, multiply the Distribution
Factor by the total number of tribes identified in the population
range to determine the Step Factor;
Step 2. Add the Step Factors determined in Step 1 above to
derive a Total Step Factor;
Step 3. Calculate the $A = IRR Program authorization available
in the allocation year by taking the Total IRR Program authorization
for the allocation year ($375M for this example) minus the
appropriate statutory and regulatory set-asides, as well as other
takedowns ($25M for this example)
$375M-$25M = $350M;
Step 4. Derive a Minimum Base Allocation by taking 12\1/2\ per
cent of the difference (from Step 3) and dividing it by the Total
Step Factor. The mathematical equation for the Base Allocation is as
follows:
[GRAPHIC] [TIFF OMITTED] TR19JY04.002
MBA = Minimum Base Allocation
Distribution Factors = 1, 3.5, 5, 6.5, and 8
$A = IRR Program Authorization Available in the Allocation Year
$275M = Base Reference Amount
n = The nth Population Range
1 . . . 5 = Population Ranges 1 through 5
Nn = Number of tribes in the nth Population Range
For the example above, the formula yields:
[GRAPHIC] [TIFF OMITTED] TR19JY04.003
Step 5. Calculate Population Adjustment Factor within each
Population Range by multiplying the Distribution Factor for the
Population Range by the Minimum Base Allocation.
The mathematical equation for the Population Adjustment Factor
calculation is as follows:
PAFn = DFn X MBA
Where:
PAF = Population Adjustment Factor
DF = Distribution Factor
n = The nth Population Range
MBA = Minimum Base Allocation
For example, for DF1 = 1.00; PAF1 = 1 x
$3,215.57 = $3,215.57
For example, for DF3 = 5.00; PAF3 = 5 x
$3,215.57 = $16,077.86
The following table illustrates the results of the above
calculations for all population ranges:
----------------------------------------------------------------------------------------------------------------
Tribal PAF per
Population range (step) Distribution Step factor population Total funding
of tribes factor range per step
----------------------------------------------------------------------------------------------------------------
Less than 25....................... 17 1 17 $3,215.57 $54,664.72
25-100............................. 66 3.5 231 11,254.50 742,797.12
101-1000........................... 309 5 1545 16,077.36 4,968,058.65
1001-10,000........................ 137 6.5 890.50 20,901.22 2,863,466.82
10,001 +........................... 29 8 232 25,724.58 746,012.69
--------------
Totals......................... ........... Total Step Factor = 2,915.50 .............. 9,375,000
----------------------------------------------------------------------------------------------------------------
Appendix C to Subpart C--Relative Need Distribution Factor
The Relative Need Distribution Factor (RNDF) is a mathematical
formula for distributing the IRR Program construction funds using
the following three factors: Cost to Construct (CTC), Vehicle Miles
Traveled (VMT), and Population (POP).
1. What Is the Formula for the RNDF?
The Relative Need Distribution Factor is as follows:
[GRAPHIC] [TIFF OMITTED] TR19JY04.004
Where:
A = percent Relative Need for an individual tribe
CTC = Total Cost to Construct calculated for an individual tribe
Total C = Total Cost to Construct calculated for all tribes shown in
the IRR Inventory
VMT = Total vehicle miles traveled for all routes in the IRR
Inventory for a given tribe
Total VMT = Total vehicle miles traveled for all routes for all
tribes in the IRR Inventory
POP = Population of an individual tribe
Total POP = Total population for all tribes
[alpha], [beta], [delta], = 0.50, 0.30, 0.20 respectively =
Coefficients reflecting relative weight given to each formula factor
Example:
Tribe X has the following data:
CTC = $51,583,000........... Total CTC = $10,654,171,742
VMT = 45,680................ Total VMT = 10,605,298
POP = 4,637................. Total POP = 1,010,236
A = 0.50 [CTC / Total CTC] + 0.30[VMT / Total VMT] + 0.20[ POP / Total
POP].
A = 0.50 [51,583,000 / 10,654,171,742] + 0.30 [45,680 / 10,605,298] +
0.20 [4,637 / 1,010,236].
A = 0.00242 + 0.00129 + 0.00092.........................................
A = 0.00463 or 0.463 percent............................................
[[Page 43121]]
If IRR Program construction funds available for the fiscal year are
$226,065,139 .
Then the allocation amount
would be: $226,065,139 x
0.00463 = $1,046,682.
2. How Does BIA Estimate Construction Costs?
The methodology for calculating the Cost to Construct is
explained in Appendix D of this subpart.
3. What Is the Cost to Construct for an Individual Tribe?
The Cost to Construct for an individual tribe is the sum of all
eligible and approved project costs from the tribe's IRR Inventory.
4. What Is the Cost to Construct Component in the RNDF?
The Cost to Construct component is the total estimated cost of a
tribe's transportation projects as a percentage of the total
estimated cost nationally of all tribes' transportation facilities.
Costs are derived from the IRR inventory of eligible IRR
transportation facilities developed and approved by BIA and tribal
governments through Long-Range Transportation Planning.
5. May the Cost to Construct Component of the RNDF Be Modified?
Yes, BIA and FHWA, with input and recommendations provided by
the IRR Program Coordinating Committee, may consider revisions to
the data elements used in calculating the Cost to Construct
component.
6. What Is the Source of the Construction Cost Used To Generate the
CTC?
(a) The construction cost will be derived from the average of
the following three project bid tabulation sources:
(1) Tribal bid tabulations or local BIA bid tabulations;
(2) State bid tabulations for the region of the State in which
the tribe's project will be constructed;
(3) National IRR Program bid tabulations.
(b) If one or more of these bid tabulation sources is
unavailable, use the average of the available sources.
(c) BIADOT will collect the national IRR Program bid tabulation
data and enter it into the Cost to Construct database.
7. What Is the VMT Component and How Is It Calculated?
VMT is a measure of the current IRR transportation system use.
BIA calculates VMT using the sum of the length of IRR route segments
in miles multiplied by the Average Daily Traffic (ADT) of the route
segment.
8. What IRR Route Sections Does BIA Use To Calculate VMT?
All IRR route sections in the IRR Inventory are used to
calculate VMT, but percentage factors are applied in accordance with
Appendix C to subpart C, question (10).
9. What Is the Population Component and How Is It Determined?
The population component is a factor used to define a portion of
transportation need based on the number of American Indian or Alaska
Native people served. The population data used will be the American
Indian and Alaska Native Service Population developed by the
Department of Housing and Urban Development, under the Native
American Housing Assistance and Self-Determination Act (NAHASDA),
(25 U.S.C. 4101 et seq.).
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.
Appendix D to Subpart C--Cost To Construct
Cost to Construct
(Appendix D includes Tables 1-8 which BIA Division of
Transportation developed based on internal IRR data and the
negotiated rulemaking process.) This method utilizes the concepts of
the Bureau of Indian Affairs' ``Simplified Approach to Compute the
Cost to Construct''. The concept has been modified to include
computing costs for High Capacity Roads (multi-lane roads), non-road
projects (snowmobile trails, boardwalks, footpaths, etc.) and other
eligible transportation facility projects.
The theory behind this concept is based on the procedure that
information gathered during any inventory update can be used to
compare the existing conditions to defined Adequate Standard
Characteristics. This comparison can then be used to determine the
total cost required to bring the transportation facility road up to
a necessary Adequate Standard. The IRR Inventory database is used to
determine the costs of a new transportation facility or in the case
of an existing facility, the costs that will be necessary to improve
the facility from it's existing condition to an adequate standard.
Therefore, the Cost to Construct for a particular facility is the
cost required to improve the facility's existing condition to a
condition that would meet the Adequate Standard Characteristics (see
Table 1). For roadways, the recommended design of the geometrics and
surface type vary based on the road's functional classification and
average daily traffic and will use four categories of cost. The four
categories are Grade and Drain Costs, Aggregate Costs, Pavement
Costs, and Incidental Costs. For bridges, costs are derived from
costs in the National Bridge Inventory as well as the National
Bridge Construction unit cost data developed by FHWA. For other
transportation IRR transportation facilities, an inventory of needs
must be developed with associated costs for new and existing IRR
transportation facilities based on long range transportation
planning. The BIA Regions and tribes must ensure the IRR Inventory
is sufficiently updated to provide all the necessary information
indicating the need, the condition and the construction cost data to
compute the cost to construct of any proposed or existing facility.
Basic Procedures
The IRR Inventory, based on transportation planning must be
developed for those tribes without data and updated for those tribes
that have an existing IRR Inventory. Once the IRR Inventory database
is current and all IRR transportation facilities needs are
identified and verified, the Cost to Construct for those IRR
transportation facilities can be developed.
The procedure for determining the cost to construct of a
proposed transportation facility is computed through the following
step-by-step process:
(a) Determine the Future ADT of the transportation facility as
applicable, based upon tribal transportation planning or set default
future ADT (see Table 2);
(b) Determine the Class of transportation facility e.g., rural
local, rural major collector, or other transportation facility,
utilizing future ADT and based upon tribal transportation planning
(see Table 1);
(c) Identify, if appropriate, transportation facility terrain as
flat, rolling, or mountainous;
(d) Set Adequate Standard based on Class, and/or future ADT, and
Terrain (see Table 1);
(e) Identify the transportation facility's construction cost per
unit (e.g., cost per mile, cost per linear foot) for the applicable
components of construction: Aggregate, Paving, Grade/Drain,
Incidental, or other costs associated with the transportation
facility;
(f) Multiply the construction cost per unit for each component
of construction by the length of the proposed road or other
appropriate unit of the transportation facility to determine the
cost for each component of construction; and
(g) Calculate the cost for the proposed road or transportation
facility by adding together the costs for each component of
construction.
The procedure for determining the cost to reconstruct or
rehabilitate an existing transportation facility is determined in
the same manner as a proposed transportation facility, except that
the existing condition of the project is evaluated to determine the
[[Page 43122]]
remaining percentage of cost of each applicable component of
construction that will be included in the cost for reconstruction.
The steps are:
(1) Evaluate existing condition of road or transportation
facility in accordance with applicable management systems,
guidelines or other requirements;
(2) Identify the percentage of required cost for each component
of applicable construction costs for the transportation facility by
determining the Adequate Standards Characteristics (see Table 1) and
existing condition of the transportation facility and by applying
the applicable percent cost requirement tables for aggregate,
paving, grade/drain, incidental, and bridge (see Tables 4-8);
(3) Multiply the construction cost per unit for each component
of construction by the corresponding percent of cost required (see
Tables 4-8) and by the length of the road or other appropriate unit
of the transportation facility to determine the reconstruction cost
for each component; and
(4) Calculate the reconstruction cost for the road or
transportation facility by adding together the reconstruction costs
for each component of construction.
Average daily traffic (ADT) is acquired through actual traffic
counts on the roadway sections. Where current ADT is practical to
acquire, it should be acquired and future ADT calculated by
projecting the current ADT at 2 percent per year for 20 years. If
the road is proposed, the ADT impractical to acquire, or a current
ADT does not exist, then BIA will assign a default current ADT and
calculate future ADT by projecting the default current ADT at 2
percent per year for 20 years to form the basis of the Adequate
Standard (see Table 1). Table 2 summarizes the default current and
default future ADT by class of road.
Functional Classification: Functional classification means an
analysis of a specific transportation facility taking into account
current and future traffic generators, and their relationship to
connecting or adjacent BIA, state, county, Federal, and/or local
roads and other intermodal facilities. Functional classification is
used to delineate the difference between the various road and/or
intermodal transportation facility standards eligible for funding
under the IRR Program. As a part of the IRR Inventory system
management, all IRR transportation facilities included on or added
to the IRR Inventory must be classified according to the following
functional classifications:
(a) Class 1: Major arterial roads providing an integrated
network with characteristics for serving traffic between large
population centers, generally without stub connections and having
average daily traffic volumes of 10,000 vehicles per day or more
with more than two lanes of traffic.
(b) Class 2: Rural minor arterial roads providing an integrated
network having the characteristics for serving traffic between large
population centers, generally without stub connections. May also
link smaller towns and communities to major resort areas that
attract travel over long distances and generally provide for
relatively high overall travel speeds with minimum interference to
through traffic movement. Generally provide for at least inter-
county or inter-State service and are spaced at intervals consistent
with population density. This class of road will have less than
10,000 vehicles per day.
(c) Class 3: Streets that are located within communities serving
residential areas.
(d) Class 4: Rural Major Collector Road is a collector to rural
local roads.
(e) Class 5: Rural Local Road that is either a section line and/
or stub type roads that collect traffic for arterial type roads,
make connections within the grid of the IRR System. This class of
road may serve areas around villages, into farming areas, to
schools, tourist attractions, or various small enterprises. Also
included are roads and motorized trails for administration of
forest, grazing, mining, oil, recreation, or other use purposes.
(f) Class 6: City Minor Arterial Streets that are located within
communities, and serve as access to major arterials.
(g) Class 7: City Collector Streets that are located within
communities and serve as collectors to the city local streets.
(h) Class 8: This classification encompasses all non-road
projects such as paths, trails, walkways, or other designated types
of routes for public use by foot traffic, bicycles, trail bikes,
snowmobile, all terrain vehicles or other uses to provide for the
general access of non-vehicular traffic.
(i) Class 9: This classification encompasses other
transportation facilities such as public parking facilities adjacent
to IRR routes and scenic byways, rest areas, and other scenic
pullouts, ferry boat terminals, and transit terminals.
(j) Class 10: This classification encompasses airstrips that are
within the boundaries of the IRR System grid and are open to the
public. These airstrips are included for inventory and maintenance
purposes only.
(k) Class 11: This classification indicates an overlapping of a
previously inventoried section or sections of a route and is used to
indicate that it is not to be used for accumulating needs data. This
class is used for reporting and identification purposes only.
Construction Need: All existing and proposed transportation
facilities in the IRR Inventory must have a Construction Need (CN)
which is used in the Cost to Construct calculations. These
transportation facilities are assigned a CN by the tribe during the
long-range transportation planning and inventory update process
using certain guidelines which are: Ownership or responsibility of
the facility, whether it is within or provides access to
reservations, groups, villages and communities in which the majority
of the residents are Indian, and whether it is vital to the economic
development of Indian tribes. As part of the IRR Inventory
management, all facilities included on or added to the IRR Inventory
must be designated a CN which are defined as follows:
(a) Construction Need 0: Transportation facilities which have
been improved to their acceptable standard or projects/facilities
proposed to receive construction funds on an approved IRRTIP are not
eligible for future inclusion in the calculation of the CTC portion
of the formula for a period of 5 years thereafter.
(b) Construction Need 1: Existing BIA roads needing improvement.
(c) Construction Need 2: Construction need other than BIA roads
needing improvement.
(d) Construction Need 3: Substandard or other roads for which no
improvements are planned, maintenance only.
(e) Construction Need 4: Roads which do not currently exist and
need to be constructed, proposed roads.
BILLING CODE 4310-LH-P
[[Page 43123]]
[GRAPHIC] [TIFF OMITTED] TR19JY04.005
BILLING CODE 4310-LH-C
[[Page 43124]]
Table 2.--Default Current ADT and Default Future ADT
Table 2 summarizes the default current and default future ADT by
class of road. Default future ADT is calculated by projecting
default current ADT at 2 percent per year for 20 years. 2 percent
per year for 20 years yields a factor of 1.485.
Table 2.--Default Current ADT and Default Future ADT
------------------------------------------------------------------------
Default current and default
IRR Class No. future ADT*
------------------------------------------------------------------------
1..................................... N/A, Must Exist
2..................................... 100 * 1.485 = 149
3..................................... 25 * 1.485 = 37
4..................................... 50 * 1.485 = 74
5..................................... 50 * 1.485 = 74
6..................................... 50 * 1.485 = 74
7..................................... 50 * 1.485 = 74
8..................................... 20 * 1.485 = 30
9..................................... N/A**
10.................................... N/A**
11.................................... N/A**
------------------------------------------------------------------------
* Default Future ADT is used for proposed roads or when impractical to
acquire current ADT or when current ADT does not exist.
** Class 9, 10, and 11 are point features in the inventory and do not
have an ADT. All multiplication is rounded.
Table 3.--Future Surface Type
Table 3 summarizes all possible scenarios of the future surface
type either required or based on the various future ADT thresholds
for each type or class of road in the inventory.
Table 3.--Future Surface Type
----------------------------------------------------------------------------------------------------------------
Const. need IRR class No. Future ADT Future surface type
----------------------------------------------------------------------------------------------------------------
0,1,2,3............................... 1...................... Any.................... Paved
0,1,2,3............................... 2...................... Any.................... Paved
0,1,2,3............................... 3,6,7.................. < 50................... Earth
50-250................. Gravel
> 250.................. Paved
0,1,2,3............................... 4,5.................... < 50................... Earth
50-250................. Gravel
> 250.................. Paved
0,1,2,3,4............................. 8...................... N/A.................... N/A*
0,1,2,3,4............................. 9...................... N/A.................... N/A**
0,1,2,3,4............................. 10..................... N/A.................... N/A***
4***.................................. 1...................... N/A****................ N/A****
4..................................... 2...................... ANY.................... Paved
4..................................... 3,6,7.................. < 50................... Earth
50-250................. Gravel
> 250.................. Paved
4..................................... 4...................... < 50................... Earth
50-250................. Gravel
> 250.................. Paved
4..................................... 5...................... < 50................... Earth
50-250................. Gravel
> 250.................. Paved
----------------------------------------------------------------------------------------------------------------
* Class 8 does not have a future surface type. Per mile costs are applied independent of future surface type.
** Class 9 does not have a future surface type. Costs are independent of future surface type.
*** Class 10 does not have a future surface type. These are airstrips and is used for identification purposed
only.
**** Class 1 with Construction Need of 4 does not apply. Class 1 roads must exist.
Table 4.--Percent of Grade and Drain Cost Required
Grade and Drain costs include the cost for constructing a
roadbed to an adequate standard and providing adequate drainage.
Specifically it includes the necessary earthwork to build the
roadbed to the required horizontal and vertical geometric parameters
above the surrounding terrain and provide for proper drainage away
from the foundation with adequate cross drains.
Table 4 summarizes the percentage of grade and drain costs
required based on the existing roadbed condition observed in an
inventory update.
Table 4.--Percent of Grade and Drain Cost Required
----------------------------------------------------------------------------------------------------------------
Percent grade
and drain cost
Code Roadbed condition required
(Percent)
----------------------------------------------------------------------------------------------------------------
0........................................ Proposed Road....................................... 100
1........................................ Primitive Trail..................................... 100
2........................................ Bladed Unimproved Earth Road, Poor Drainage, Poor 100
Alignment.
3........................................ Minimum Built-up Roadbed (Shallow cuts and fills) 100
with inadequate drainage and alignment that
generally follows existing ground.
4........................................ A designed and constructed roadbed with some 100
drainage and alignment improvements required.
[[Page 43125]]
5........................................ A roadbed constructed to the adequate standards with 0
good horizontal and vertical alignment and proper
drainage.
6........................................ A roadbed constructed to adequate standards with 0
curb and gutter on one side.
7........................................ A roadbed constructed to adequate standards with 0
curb and gutter on both sides.
----------------------------------------------------------------------------------------------------------------
Table 5.--Percent of Aggregate Surface Cost Required
Table 5 summarizes the percentage of aggregate surface costs
required based on all possible scenarios of existing surface type
conditions and calculated future surface type.
Table 5.--Percent of Aggregate Surface Cost Required
----------------------------------------------------------------------------------------------------------------
Future surface type
-----------------------------------------------
Existing surface type Paved Gravel Earth
(percent) (percent) (percent)
----------------------------------------------------------------------------------------------------------------
Proposed........................................................ 100 100 0.
Primitive....................................................... 100 100 0.
Earth........................................................... 100 100 0.
Gravel.......................................................... 100 *100 0.
Bituminous < 2''................................................ 100 0 0.
Bituminous > 2''................................................ 0 or 100 0 0.
Concrete........................................................ 0 or 100 0 0.
----------------------------------------------------------------------------------------------------------------
*If the Surface Condition Index (SCI) is 40 or less indicating that reconstruction will be required, then 100
percent of the aggregate cost will be required. If greater than 40, then none of the aggregate cost will be
applied.
Table 6.--Percent of Pavement Surface Cost Required
Table 6 Summarizes the percentage of pavement surface costs for
existing conditions required based on all possible scenarios of
existing surface type conditions and calculated future surface type.
Pavement overlays are calculated at 100 percent of the pavement
costs.
Table 6.--Percent of Pavement Surface Cost Required
----------------------------------------------------------------------------------------------------------------
Future surface type
-----------------------------------------------
Existing surface type Paved Gravel Earth
(percent) (percent) (percent)
----------------------------------------------------------------------------------------------------------------
Proposed........................................................ 100 100 0.
Primitive....................................................... 100 100 0.
Earth........................................................... 100 100 0.
Gravel.......................................................... 100 100 0.
Bituminous < 2''................................................ 100 0 0.
Bituminous > 2''................................................ *0 or 100 0 0.
Concrete........................................................ *0 or 100 0 0.
----------------------------------------------------------------------------------------------------------------
*If the Surface Condition Index (SCI) is 60 or less indicating that reconstruction will be required, then 100
percent of the aggregate cost will be required. If greater than 60, then none of the aggregate cost will be
applied.
Table 7.--Percent of Incidental Construction Cost Required
Incidental cost items are generally required if a project
includes construction or reconstruction of the roadbed. Some
incidental items are included in all road improvement projects,
while others are only required for specific projects. Table 7
summarizes the incidental construction determination estimating
procedure for each of the Roadbed Category Codes. As shown in Table
4, roadbed condition codes 0 through 2 will require 65 percent of
the incidental costs for construction because they generally will
not require maintenance of traffic during construction. If
maintenance of traffic is required as will generally be the case for
roadbed condition codes 3 and 4, the minimum percentage of
incidental costs for these roadbed condition codes will be 75
percent. It is assumed that improvement roadbed condition codes 5, 6
and 7 will primarily be paving projects with little or no earthwork
involved and the minimum percentage of the total incidental
construction cost for these projects will be 30 percent.
[[Page 43126]]
Table 7.--Percent of Incidental Construction Cost Required
----------------------------------------------------------------------------------------------------------------
Maintenance of
New alignment traffic
Code Roadbed condition (percent) required
(percent)
----------------------------------------------------------------------------------------------------------------
0........................................ Proposed road........................ 65 N/A
1........................................ Primitive trail...................... 65 N/A
2........................................ Bladed unimproved earth road, poor 65 N/A
drainage, poor alignment.
3........................................ Minimum built-up roadbed (shallow N/A 75
cuts and fills) with inadequate
drainage and alignment that
generally follows existing ground.
4........................................ A designed and constructed roadbed N/A 75
with some drainage and alignment
improvements required.
5........................................ A roadbed constructed to the adequate N/A 30
standards with good horizontal and
vertical alignment and proper
drainage. Requiring surfacing.
6........................................ A roadbed constructed to adequate N/A 30
standards with curb and gutter on
one side. Requiring surfacing.
7........................................ A roadbed constructed to adequate N/A 30
standards with curb and gutter on
both sides. Requiring surfacing.
----------------------------------------------------------------------------------------------------------------
Table 7 only accounts for those incidental construction costs
normally found on a typical project. The construction items found in
Table 8 may or may not be on any particular project and the cost of
these items is 25 percent. Add the percentage required (from 0 to 25
percent) based on the Regional recommendation with verification. If
there are no additional items required, use the default of zero.
Table 8.--Percent of Additional Incidental Construction Cost
------------------------------------------------------------------------
Percent of
total
Additional incidental construction item incidental
construction
cost
------------------------------------------------------------------------
Fencing................................................. 1
Landscaping............................................. 9
Structural concrete..................................... 9
Traffic signals......................................... 3
Utilities............................................... 3
------------------------------------------------------------------------
Subpart D--Planning, Design, and Construction of Indian Reservation
Roads Program Facilities
Transportation Planning
Sec. 170.400 What is the purpose of transportation planning?
The purpose of transportation planning is to fulfill goals by
developing strategies to meet transportation needs. These strategies
address current and future land use, economic development, traffic
demand, public safety, health, and social needs.
Sec. 170.401 What is BIA's role in transportation planning?
Except as provided in Sec. 170.402, the functions and activities
that BIA must perform for the IRR Program are:
(a) Preparing the regional IRRTIP;
(b) Updating the IRR Inventory from data updates;
(c) Preparing IRR Inventory data updates as needed;
(d) Coordinating with States and their political subdivisions, and
appropriate planning authorities on regionally significant IRR
projects;
(e) Providing technical assistance to tribal governments;
(f) Developing IRR Program budgets including transportation
planning cost estimates;
(g) Facilitating public involvement;
(h) Participating in transportation planning and other
transportation-related meetings;
(i) Performing traffic studies;
(j) Performing preliminary project planning;
(k) Conducting special transportation studies;
(l) Developing short and long-range transportation plans;
(m) Mapping;
(n) Developing and maintaining management systems;
(o) Performing transportation planning for operational and
maintenance facilities; and
(p) Researching rights-of-way documents for project planning.
Sec. 170.402 What is the tribal role in transportation planning?
(a) All tribes must prepare a tribal TIP (TTIP) or tribal priority
list.
(b) Tribes with a self-determination contract or self-governance
agreement may assume any of the following planning functions:
(1) Coordinating with States and their political subdivisions, and
appropriate planning authorities on regionally significant IRR
projects;
(2) Preparing IRR Inventory data updates;
(3) Facilitating public involvement;
(4) Performing traffic studies;
(5) Developing short- and long-range transportation plans;
(6) Mapping;
(7) Developing and maintaining tribal management systems;
(8) Participating in transportation planning and other
transportation related meetings;
(9) Performing transportation planning for operational and
maintenance facilities;
(10) Developing IRR Program budgets including transportation
planning cost estimates;
(11) Conducting special transportation studies, as appropriate;
(12) Researching rights-of-way documents for project planning; and
(13) Performing preliminary project planning.
Sec. 170.403 What IRR Program funds can be used for transportation
planning?
Funds as defined in 23 U.S.C. 204(j) are specifically reserved for
a tribal government's transportation planning. Tribes may also identify
transportation planning as a priority in their tribal priority list or
TTIP and request the use of up to 100 percent of their IRR Program
construction funds for transportation planning.
Sec. 170.404 What happens when a tribe uses its IRR Program
construction funds for transportation planning?
In order for IRR Program construction funds to be concentrated on
the projects within the inventory, a tribe may use up to $35,000 or 5
percent of its IRR Program construction funds, whichever is greater,
for transportation planning. If a tribe exceeds this threshold, BIA
will subtract the amount over the threshold from the tribe's CTC for
the following year.
Sec. 170.405 Can tribal transportation planning funds be used for
road construction and other projects?
Yes, any tribe can request to have its planning funds as defined in
23 U.S.C. 204(j) transferred into construction funds for use on any
eligible and
[[Page 43127]]
approved IRR project. (Also see Sec. 170.407.)
Sec. 170.406 How must tribes use planning funds?
(a) IRR Program funds as defined in 23 U.S.C. 204(j) are only
available upon request of a tribal government and approved by the BIA
Regional Office. These funds support development and implementation of
tribal transportation planning and associated strategies for
identifying transportation needs, including:
(1) Attending transportation planning meetings;
(2) Pursuing other sources of funds; and
(3) Developing the tribal priority list or any of the
transportation functions/activities as defined in the FHWA IRR Program
Transportation Planning Procedures and Guidelines (TPPG) or listed in
Sec. 170.402.
(b) A tribe may ask the BIA regional office to enter into a self-
determination contract or self-governance agreement for transportation
planning activities and functions under ISDEAA or it may request a
travel authorization to attend transportation planning functions and
related activities using these funds. (See appendix A of subpart B for
use of IRR Program Funds.)
Sec. 170.407 What happens to unobligated planning funds?
Once all tribal governments' requests for tribal transportation
planning funds have been satisfied for a given fiscal year or no later
than August 15, the BIA regional office may use the remaining funds for
construction after consultation with the affected tribal governments.
Long-Range Transportation Planning
Sec. 170.410 What is the purpose of tribal long-range transportation
planning?
(a) The purpose of long-range transportation planning is to clearly
demonstrate a tribe's transportation needs and to fulfill tribal goals
by developing strategies to meet these needs. These strategies should
address future land use, economic development, traffic demand, public
safety, and health and social needs.
(b) The time horizon for long-range transportation planning should
be 20 years to match state transportation planning horizons. A tribe
may develop a long-range transportation plan under ISDEAA or may ask
BIA to develop the plan on the tribe's behalf.
Sec. 170.411 What may a long-range transportation plan include?
A comprehensive long-range transportation plan may include:
(a) An evaluation of a full range of transportation modes and
connections between modes such as highway, rail, air, and water, to
meet transportation needs;
(b) Trip generation studies, including determination of traffic
generators due to land use;
(c) Social and economic development planning to identify
transportation improvements or needs to accommodate existing and
proposed land use in a safe and economical fashion;
(d) Measures that address health and safety concerns relating to
transportation improvements;
(e) A review of the existing and proposed transportation system to
identify the relationships between transportation and the environment;
(f) Cultural preservation planning to identify important issues and
develop a transportation plan that is sensitive to tribal cultural
preservation;
(g) Scenic byway and tourism plans;
(h) Measures that address energy conservation considerations;
(i) A prioritized list of short and long-term transportation needs;
and
(j) An analysis of funding alternatives to implement plan
recommendations.
Sec. 170.412 How is the tribal IRR long-range transportation plan
developed and approved?
(a) The tribal IRR long-range transportation plan is developed by:
(1) A tribe working through a self-determination contract or self-
governance agreement or other funding sources; or
(2) BIA upon request of, and in consultation with, a tribe. The
tribe and BIA need to agree on the methodology and elements included in
development of the IRR long-range transportation plan along with time
frames before work begins.
(b) During the development of the IRR long-range transportation
plan, the tribe and BIA should jointly conduct a midpoint review.
(c) The public reviews a draft IRR long-range transportation plan
as required by Sec. 170.413. The plan is further refined to address
any issues identified during the public review process. The tribe then
approves the IRR long-range transportation plan.
Sec. 170.413 What is the public role in developing the long-range
transportation plan?
BIA or the tribe must solicit public involvement. If there are no
tribal policies regarding public involvement, a tribe must use the
procedures shown below. Public involvement begins at the same time
long-range transportation planning begins and covers the range of
users, from stakeholders and private citizens to major public and
private entities. Public involvement may be handled in either of the
following two ways:
(a) For public meetings, BIA or a tribe must:
(1) Advertise each public meeting in local public newspapers at
least 15 days before the meeting date. In the absence of local public
newspapers, BIA or the tribe may post notices under local acceptable
practices;
(2) Provide at the meeting copies of the draft long-range
transportation plan;
(3) Provide information on funding and the planning process; and
(4) Provide the public the opportunity to comment, either orally or
in writing.
(b) For public notices, BIA or a tribe must:
(1) Publish a notice in the local and tribal newspapers when the
draft long-range transportation plan is complete. In the absence of
local public newspapers, BIA or the tribe may post notices under local
acceptable practices; and
(2) State in the notice that the long-range transportation plan is
available for review, where a copy can be obtained, whom to contact for
questions, where comments may be submitted, and the deadline for
submitting comments (normally 30 days).
Sec. 170.414 How is the tribal long-range transportation plan used
and updated?
The tribal government uses its IRR long-range transportation plan
in its development of a tribal priority list or TTIP. To be consistent
with State and MPO planning practices, the tribe or BIA (for direct
service tribes) should:
(a) Review the IRR long-range transportation plan annually; and
(b) Update the plan every 5 years.
Sec. 170.415 What is pre-project planning?
(a) Pre-project planning is part of overall transportation planning
and includes the activities conducted before final project approval on
the IRR Transportation Improvement Program (IRRTIP). These activities
include;
(1) Preliminary project cost estimates;
(2) Certification of public involvement;
(3) Consultation and coordination with States and/or MPO's for a
regionally significant projects;
(4) Preliminary needs assessments; and
(5) Preliminary environmental and archeological reviews.
(b) The BIA regional office must work cooperatively with tribal,
state, regional, and metropolitan transportation planning organizations
concerning the
[[Page 43128]]
leveraging of funds from non-IRR Program sources and identification of
other funding sources to expedite the planning, design, and
construction of projects on the IRRTIP.
Transportation Improvement Program
Sec. 170.420 What is the tribal priority list?
The tribal priority list is a list of all transportation projects
that the tribe wants funded. The list:
(a) May or may not identify projects in order of priority;
(b) Is not financially constrained; and
(c) Is provided to BIA by official tribal action, unless the tribal
government submits a Tribal Transportation Improvement Program (TTIP).
Sec. 170.421 What is the Tribal Transportation Improvement Program
(TTIP)?
The TTIP:
(a) Must be consistent with the tribal long-range transportation
plan;
(b) Must contain all IRR Program funded projects programmed for
construction in the next 3 to 5 years;
(c) Must identify the implementation year of each project scheduled
to begin within the next 3 to 5 years;
(d) May include other Federal, State, county, and municipal,
transportation projects initiated by or developed in cooperation with
the tribal government;
(e) Will be reviewed and updated as necessary by the tribal
government;
(f) Can be changed only by the tribal government; and
(g) Must be forwarded to BIA by resolution or by tribally
authorized government action for inclusion into the IRRTIP.
Sec. 170.422 What is the IRR Transportation Improvement Program
(IRRTIP)?
The IRRTIP:
(a) Is financially constrained;
(b) Must include eligible projects from tribal TTIPs;
(c) Is selected by tribal governments from TTIPs or other tribal
actions;
(d) Is organized by year, State, and tribe; and
(e) May include non-IRR projects for inclusion into the State
Transportation Improvement Program (STIP).
Sec. 170.423 How are projects placed on the IRRTIP?
(a) BIA selects projects from the TTIP or tribal priority list for
inclusion on the IRRTIP as follows:
(1) The tribal government develops a list of detailed tasks and
information for each project from the tribal priority list or TTIP;
(2) BIA includes this project information in its region-wide
control schedule without change, unless the funding required exceeds
the amount available to the tribe;
(3) BIA must include projects that are scheduled in the next 3 to 5
years; and
(4) BIA develops the IRRTIP after consulting with the tribes and
taking their priorities into account.
(b) A tribe that does not generate enough annual funding under the
IRR Program funding formula to complete a project may either:
(1) Submit its tribal priority list to the appropriate BIA Region,
which will develop the region-wide control schedule after consulting
with the tribe and taking its priorities into account; or
(2) Enter a consortium of tribes and delegate authority to the
consortium to develop the TTIP and tribal control schedule;
(3) Enter into agreement with other tribes to permit completion of
the project; or
(4) Apply for IRRHPP funding under subpart C.
(c) In order to get a project on the IRRTIP, tribes may seek
flexible financing alternatives as described in subpart C.
Sec. 170.424 How does the public participate in developing the
IRRTIP?
Public involvement is required in the development of the IRRTIP.
(a) BIA or the tribe must publish a notice in local and tribal
newspapers when the draft tribal or IRRTIP is complete. In the absence
of local public newspapers, the tribe or BIA may post notices under
local acceptable practices. The notice must indicate where a copy can
be obtained, contact person for questions, where comments may be
submitted, and the deadline for submitting comments.
(b) BIA or the tribe may hold public meetings at which the public
may comment orally or in writing.
(c) BIA, the tribe, the State transportation agency or MPO may
conduct public involvement activities.
Sec. 170.425 How does BIA update the IRRTIP?
The IRRTIP annual update allows incorporation of transportation
projects planned for the next 3 to 5 years. Each BIA regional office
updates the IRRTIP for each State in its service area to reflect
changes in the TTIPs or tribal project listings.
(a) During the first quarter of the fiscal year each BIA Regional
Office notifies tribes of the update and provides projected IRR Program
funding amounts and a copy of the previous year's regional IRRTIP.
(b) The tribe reviews any new transportation planning information,
priority lists, and TTIP and forwards an updated TTIP or project
listing to BIA Regional Office on or before July 15.
(c) The BIA regional office reviews all submitted information with
the tribes. BIA adds agreed-upon updates, including previously approved
amendments (see Sec. 170.427), to the IRRTIP so that the Secretaries
can approve the new updated IRRTIP before the start of the next fiscal
year.
Sec. 170.426 What is the approval process for the IRRTIP?
The approval process for the IRRTIP is:
(a) The BIA Regional Office forwards the IRRTIP to the Secretaries
for review and approval;
(b) Federal Lands Highway Office will provide copies of the
approved IRRTIP to the FHWA division office for transmittal to the
State transportation agency for inclusion in the State Transportation
Improvement Program (STIP). The approved IRRTIP will be returned to
BIA;
(c) BIA sends copies of the approved IRRTIP to BIA Regional Offices
and tribal governments; and
(d) Within 10 working days of receiving the approved IRRTIP and IRR
Program funds, BIA enters the projects into the Federal finance system.
Sec. 170.427 How may an IRRTIP be amended?
(a) A tribe may amend the IRRTIP by changing its TTIP on or before
July 15 and submitting the changed TTIP to BIA for inclusion in the
IRRTIP. BIA's regional office will review all submitted information
with the tribe and provide a written response (approving, denying, or
requesting additional information) within 45 days. If the proposed
IRRTIP amendment contains a project not listed on the current approved
IRRTIP, BIA must submit the proposed amendment to FHWA for final
approval.
(b) BIA may amend the IRRTIP:
(1) To add or delete projects or reflect significant changes in
scope at any time if requested by the tribe; and
(2) To reduce funding or reschedule a project after consulting with
the affected tribe and obtaining its consent, if practical.
(c) The Secretary may not reduce funding for or reschedule a
project that is the subject of a negotiated agreement, except under the
terms of the agreement.
(d) BIA amends the IRRTIP using the same public involvement process
used to develop the original IRRTIP.
[[Page 43129]]
Sec. 170.428 How is the State Transportation Improvement Program
related to the IRRTIP?
The annual update of the IRRTIP for each State in a BIA regional
office's service area should be coordinated with the State
transportation agencies. This will ensure that approved IRRTIP updates
and amendments are included with the STIP.
Public Hearings
Sec. 170.435 How does BIA or the tribe determine the need for a
public hearing?
The tribe, or BIA after consultation with the appropriate tribe and
other involved agencies, determines whether or not a public hearing is
needed for an IRRTIP, long-range transportation plan or project. A
public hearing must be held if a project:
(a) Is a new route or facility;
(b) Would significantly change the layout or function of connecting
or related roads or streets;
(c) Would cause a substantial adverse effect on adjacent property;
or
(d) Is controversial or expected to be controversial in nature.
Sec. 170.436 How are public hearings for IRR planning and projects
funded?
(a) Public hearings for IRR planning are funded as follows:
(1) Public hearings for TTIPS and long-range transportation plans
conducted by tribes are funded using the funds defined in title 23
U.S.C. 204(j) or IRR Program construction funds; and
(2) Public hearings for a tribe's long-range transportation plan
conducted by BIA at the tribe's request are funded using the tribes'
funds as defined in title 23 U.S.C. 204(j) or IRR Program construction
funds.
(b) Public hearings for IRR projects conducted by either tribes or
BIA are funded using IRR Program construction funds.
Sec. 170.437 How must BIA or a tribe inform the public when no
hearing is held?
(a) When no public hearing for an IRR project is scheduled, either
the tribe or BIA must give adequate notice to the public before project
activities are scheduled to begin. The notice should include:
(1) Project location;
(2) Type of improvement planned;
(3) Dates and schedule for work;
(4) Name and address where more information is available; and
(5) Provisions for requesting a hearing.
(b) If the work is not to be performed by the tribe, BIA must send
a copy of the notice to the affected tribe.
Sec. 170.438 How must BIA or a tribe inform the public when a hearing
is held?
When BIA or a tribe holds a hearing under this part, it must notify
the public of the hearing by publishing a notice.
(a) The public hearing notice is a document containing:
(1) Date, time, and place of the hearing;
(2) Planning activities or project location;
(3) Proposed work to be done, activities to be conducted, etc.;
(4) Where preliminary plans, designs or specifications may be
reviewed; and
(5) How and where to get more information.
(b) BIA or the tribe must publish the notice:
(1) By posting and/or publishing the notice at least 30 days before
the public hearing. A second notice for a hearing is optional; and,
(2) By sending a courtesy copy of the notice to the affected
tribe(s) and BIA Regional Office.
Sec. 170.439 How is a public hearing conducted?
(a) Who conducts the hearing. A tribal or Federal official is
appointed to preside over the public hearing. The official presiding
over the hearing must maintain a free and open discussion of the
issues.
(b) Record of hearing. The presiding official is responsible for
compiling the official record of the hearing. A record of a hearing is
a summary of oral testimony and all written statements submitted at the
hearing. Additional written comments made or provided at the hearing,
or within 5 working days of the hearing, will be made a part of the
record.
(c) Hearing process.
(1) The presiding official explains the purpose of the hearing and
provides an agenda;
(2) The presiding official solicits public comments from the
audience on the merits of IRR projects and activities; and
(3) The presiding official informs the hearing audience of the
appropriate procedures for a proposed IRR project or activity, that may
include, but are not limited to:
(i) Project development activities;
(ii) Rights-of-way acquisition;
(iii) Environmental and archeological clearance;
(iv) Relocation of utilities and relocation services;
(v) Authorized payments allowed by the Uniform Relocation and Real
Property Acquisition Policies Act, 42 U.S.C. 4601 et seq., as amended;
(vi) Draft transportation plan; and
(vii) The scope of the project and its effect on traffic during and
after construction.
(d) Availability of information. Appropriate maps, plats, project
plans and specifications will be available at the hearing for public
review. Appropriate officials are present to answer questions.
(e) Opportunity for comment. Comments are received as follows:
(1) Oral statement at the hearing;
(2) Written statement submitted at the hearing;
(3) Written statement sent to the address noted in the hearing
notice within 5 working days following the public hearing.
Sec. 170.440 How can the public learn the results of a public
hearing?
Results of a public hearing are available as follows:
(a) Within 20 working days of the completion of the public hearing,
the presiding official issues a hearing statement summarizing the
results of the public hearing and the determination of needed further
action.
(b) The presiding official posts the hearing statement at the
hearing site. The public may request a copy. The hearing statement
outlines appeal procedures.
Sec. 170.441 Can a decision resulting from a hearing be appealed?
Yes. A decision resulting from the public hearing may be appealed
pursuant to 25 CFR part 2.
IRR Inventory
Sec. 170.442 What is the IRR Inventory?
(a) The IRR Inventory is a comprehensive database of all
transportation facilities eligible for IRR Program funding by tribe,
reservation, BIA agency and region, Congressional district, State, and
county. Other specific information collected and maintained under the
IRR Program includes classification, route number, bridge number,
current and future traffic volumes, maintenance responsibility, and
ownership.
(b) Elements of the inventory are used in the Relative Need
Distribution Factor. BIA or tribes can also use the inventory to assist
in transportation and project planning, justify expenditures, identify
transportation needs, maintain existing IRR transportation facilities,
and develop management systems.
Sec. 170.443 How can a tribe list a proposed transportation facility
in the IRR Inventory?
A proposed IRR transportation facility is any transportation
facility, including a highway bridge, that will serve public
[[Page 43130]]
transportation needs, is eligible for construction under the IRR
Program and does not currently exist. To be included in the IRR
inventory, a proposed transportation facility must:
(a) Be supported by a tribal resolution or other official tribal
authorization;
(b) Address documented transportation needs as developed by and
identified in tribal transportation planning efforts, such as the long-
range transportation plan;
(c) Be eligible for IRR Program funding; and
(d) Be open to the public when built.
Sec. 170.444 How is the IRR Inventory updated?
The IRR Inventory data for a tribe is updated on an annual basis as
follows:
(a) Each BIA Regional Office provides the tribes in its region
copies of the IRR Inventory by November 1st of each year;
(b) The tribe reviews the data and submits changes (together with a
strip map of each change) to the BIA Regional Office along with
authorizing resolutions or similar official authorization by March 15;
(c) The BIA Regional Office reviews each tribe's submission for
errors or omissions and provides the tribe with its revised inventory
by May 15;
(d) The tribe must correct any errors or omissions by June 15;
(e) Each BIA Regional Office certifies its data and enters the data
into the IRR Inventory by July 15;
(f) BIA provides each tribe with copies of the Relative Need
Distribution Factor distribution percentages by August 15; and
(g) BIADOT approves submissions from BIA Regional Offices before
they are included in the National IRR Inventory.
Sec. 170.445 What is a strip map?
A strip map is a graphic representation of a section of road or
other transportation facility being added to or modified in the IRR
Inventory. Each strip map submitted with an IRR Inventory change must:
(a) Define the facility's location with respect to State, county,
tribal, and congressional boundaries;
(b) Define the overall dimensions of the facility and the
accompanying inventory data;
(c) Include a table that provides the IRR Inventory information
about the transportation facility.
Environmental and Archeological Requirements
Sec. 170.450 What archeological and environmental requirements must
the IRR Program meet?
(a) The archeological and environmental requirements with which BIA
must comply on the IRR Program are contained in Appendix A to this
subpart.
(b) The archeological and environmental requirements for tribes
that enter into self-determination contracts or self-governance
agreements for the IRR Program are in 25 CFR 900.125 and 1000.243.
Sec. 170.451 Can IRR Program funds be used for archeological and
environmental compliance?
Yes. For approved IRR projects, IRR Program funds can be used for
environmental and archeological work consistent with 25 CFR
900.125(c)(6) and (c)(8) and 25 CFR 1000.243(b) and applicable tribal
laws for:
(a) Road and bridge rights-of-way;
(b) Borrow pits and aggregate pits associated with IRR activities
staging areas;
(c) Limited mitigation outside of the construction limits as
necessary to address the direct impacts of the construction activity as
determined in the environmental analysis and after consultation with
the affected tribe(s) and the appropriate Secretary(s); and
(d) Construction easements.
Design
Sec. 170.454 What design standards are used in the IRR Program?
(a) Appendix B to this subpart lists design standards that BIA may
use for the IRR program.
(b) BIA may also use FHWA-approved State or tribal design
standards.
(c) Tribes may propose road and bridge design standards to be used
in the IRR Program that are consistent with or exceed applicable
Federal standards. The standards may be negotiated between BIA and the
tribe and included in a self-determination contract or self-governance
agreement.
Sec. 170.455 How are design standards used in IRR projects?
The standards in this section must be applied to each construction
project consistent with a minimum 20-year design life for highway
projects and 75-year design life for highway bridges. The design of IRR
projects must take into consideration:
(a) The existing and planned future use of the IRR transportation
facility in a manner that is conducive to safety, durability, and
economy of maintenance;
(b) The particular needs of each locality, and the environmental,
scenic, historic, aesthetic, community, and other cultural values and
mobility needs in a cost-effective manner; and
(c) Access and accommodation for other modes of transportation.
Sec. 170.456 When can a tribe request an exception from the design
standards?
A tribe can request an exception from the design standards in
Appendix B of this subpart under the conditions in this section. The
tribe must submit its request for a design exception to the BIA
Regional Office for approval. If the BIA Regional Office has design
exception approval authority within their IRR Stewardship Plan with
FHWA, they may approve or decline the request; otherwise BIA forwards
the request to FHWA. The engineer of record must submit written
documentation with appropriate supporting data, sketches, details, and
justification based on engineering analysis.
(a) FHWA or BIA may grant exceptions for:
(1) Experimental features on projects; and
(2) Projects where conditions warrant that exceptions be made.
(b) FHWA or BIA can approve a project design that does not conform
to the minimum criteria only after giving due consideration to all
project conditions, such as:
(1) Maximum service and safety benefits for the dollar invested;
(2) Compatibility with adjacent features; and
(3) Probable time before reconstruction of the project due to
changed conditions or transportation demands.
(c) FHWA or BIA have 30 days from receiving the request to approve
or decline the exception.
Sec. 170.457 Can a tribe appeal a denial?
Yes. If BIA denies a design exception request made by a tribe, the
decision may be appealed to FHWA. Tribes may appeal the denial of a
design exception to: FHWA, 400 7th St., SW., HFL-1, Washington, DC
20590. If FHWA denies a design exception, the tribe may appeal the
decision to the next higher level of review within the Department of
Transportation at the Office of the FHWA Administrator, 400 7th Street,
SW., HOA-1, Washington, DC 20590.
[[Page 43131]]
Review and Approval of Plans, Specifications, and Estimates
Sec. 170.460 What must a project package include?
(a) The minimum requirements for a project package are:
(1) Plans;
(2) Specifications; and
(3) Estimates.
(b) In order to receive project approval the following additional
items are required:
(1) A tribal resolution or other authorized document supporting the
project;
(2) Right-of-way clearances;
(3) Required environmental, archeological, and cultural clearances;
and
(4) Identification of design exceptions if used in the plans.
(c) A tribe may include additional items at its option.
Sec. 170.461 May a tribe approve plans, specifications, and
estimates?
A tribe may review and approve plan, specification, and estimate
(PS&E) project packages for IRR Program funded projects when:
(a) This function is included in the tribe's self-determination
contract or self-governance agreement; or
(b) The tribe is the owner of the IRR transportation facility or is
responsible for maintaining the facility. In this case, the tribe must
have at least 30 days to review and approve the proposed PS&E package.
Sec. 170.462 When may a self-determination contract or self-
governance agreement include PS&E review and approval?
(a) For a BIA or tribally-owned facility, the tribe may assume
responsibility to review and approve PS&E packages under a self-
determination contract or self-governance agreement if the tribe
specifies in the contract or agreement that:
(1) A licensed professional engineer will supervise design and
approval of the PS&E package;
(2) A licensed professional engineer will certify that the PS&E
meets or exceeds the design, health, and safety standards in appendix B
to subpart D for an IRR transportation facility;
(3) An additional licensed professional engineer (either a BIA
engineer or, if the tribe chooses, a non-BIA engineer) will review the
PS&E package when it is at least 95 percent complete; and
(4) If the project is to be performed by the tribe, the tribe will
provide a copy of the certification and approved PS&E package to BIA
before the solicitation of the project or notice to proceed.
(b) For a facility maintained by a public authority other than BIA
or a tribe, in addition to satisfying the requirements of paragraph (a)
of this section:
(1) The public authority must have a chance to review and approve
the PS&E when it is between 75 percent and 95 percent complete, unless
an agreement between the tribe and the public authority states
otherwise;
(2) If a licensed professional engineer performs the review and
approval when the PS&E provided is at least 95 percent complete, the
second level review requirement in paragraph (a)(2) of this section is
satisfied; and
(3) The tribe must allow the public authority at least 30 days for
review and approval. If the public authority does not meet this
deadline or an extension granted by the tribe, the tribe may proceed
with the review in accordance with paragraph (a)(2) of this section.
(c) If a BIA engineer does not complete a review within 30 days
under paragraph (a)(2) of this section, the tribe may contract its own
engineer to perform the review.
Sec. 170.463 What should the Secretary do if a design deficiency is
identified?
If a review under Sec. 170.462 identifies a design deficiency that
may jeopardize public health and safety if the facility is completed,
the Secretary must:
(a) For a tribally-approved PS&E package, immediately notify the
tribe of the design deficiency and request that the tribe promptly
resolve the deficiency in accordance with the standards in appendix B
to subpart D; and
(b) For a BIA-approved PS&E package, promptly resolve the
deficiency in accordance with the standards in appendix B to subpart D
and notify the tribe of the required design changes.
Construction and Construction Monitoring
Sec. 170.470 What are the IRR construction standards?
(a) Appendix B to this subpart lists design standards that may be
used for roads and bridges.
(1) Tribes may propose road and highway bridge construction
standards that are consistent with or exceed these standards.
(2) BIA may also use FHWA-approved, State or tribal road and
highway bridge construction standards.
(b) For designing and building eligible intermodal projects funded
by the IRR Program, tribes must use either:
(1) Nationally recognized standards for comparable projects; or
(2) Tribally adopted standards that meet or exceed nationally
recognized standards for comparable projects.
Sec. 170.471 How are projects administered?
(a) When a tribe carries out an IRR project under ISDEAA, BIA will
monitor performance under the requirements of 25 CFR 900.130 and
900.131(b)(9) or 25 CFR 1000.243 and 1000.249(c) and (e), as
appropriate. If BIA discovers a problem during an on-site monitoring
visit, BIA must promptly notify the tribe and, if asked, provide
technical assistance.
(b) BIA or the tribal government, as provided for under the
contract or agreement, is responsible for day-to-day project
inspections except for BIA monitoring under paragraph (a) of this
section.
(c) BIA must process substantial changes in the scope of a
construction project in coordination with the affected tribe.
(d) The tribe, other contractors, and BIA may perform quality
control.
(e) Only the licensed professional engineer may change an IRR
project's plans, specifications, and estimates (PS&E) during
construction.
(1) For substantial changes, the original approving agency must
review the change. The approving agency is the Federal, tribal, State,
or local entity with PS&E approval authority over the project.
(2) In making any substantial change, the approving agency must
consult with the affected tribe and the entity having maintenance
responsibility.
(3) A change that exceeds the limits of available funding may be
made only with the approving agency's consent.
Sec. 170.472 What construction records must tribes and BIA keep?
The following table shows which IRR construction records BIA and
tribes must keep and the requirements for access.
[[Page 43132]]
------------------------------------------------------------------------
Records that must be
Record keeper kept Access
------------------------------------------------------------------------
(a) Tribe................... All records required BIA is allowed
by ISDEAA and 25 access to tribal
CFR 900.130-131 or IRR construction
25 CFR 1000.243 and records as required
1000.249, as under 25 CFR
appropriate. 900.130, 900.131 or
25 CFR 1000.243 and
1000.249, as
appropriate.
(b) BIA..................... Completed daily Upon reasonable
reports of advance request by
construction a tribe, BIA must
activities provide reasonable
appropriate to the access to records.
type of
construction it is
performing.
------------------------------------------------------------------------
Sec. 170.473 What happens when a construction project ends?
(a) At the end of a construction project, the agency or
organization responsible for the project must make a final inspection.
The inspection determines whether the project has been completed in
reasonable conformity with the PS&E.
(1) Appropriate officials from the tribe, BIA, and FHWA should
participate in the inspection, as well as contractors and maintenance
personnel.
(2) All project information must be made available during final
inspection and used to develop the IRR construction project closeout
report. Some examples of project information are: Daily diaries, weekly
progress reports, subcontracts, subcontract expenditures, salaries,
equipment expenditures, as-built drawings, etc.
(b) An IRR construction project closeout is the final accounting of
all IRR construction project expenditures. It is the closing of the
financial books of the Federal Government for that construction
project. Closeout occurs after:
(1) The final project inspection concludes; and
(2) The facility owner makes final acceptance of the project.
Sec. 170.474 Who conducts the project closeout?
The following table shows who must conduct the IRR construction
project closeout and develop the report.
----------------------------------------------------------------------------------------------------------------
If the project was completed by . . . then . . . and the closeout report must . . .
----------------------------------------------------------------------------------------------------------------
(a) BIA............................... The regional engineer or (1) Summarize the construction project
designee is responsible for records to ensure compliance
closing out the project and requirements have been met;
preparing the report. (2) Review the bid item quantities and
expenditures to ensure reasonable
conformance with the PS&E and
modifications;
(3) Be completed within 120 calendar
days of the date of acceptance of the
IRR. construction project; and
(4) Be provided to the affected tribes
and the Secretaries.
(b) A tribe........................... Agreements negotiated under (1) Meet the requirements of ISDEAA;
ISDEAA specify who is (2) Comply with 25 CFR 900.130(d) and
responsible for closeout and 131(b) (10) and 25 CFR 1000.249, as
preparing the report. applicable;
(3) Be completed within 120 calendar
days of the date of acceptance of the
project; and
(4) Be provided to all parties specified
in the agreements negotiated under
ISDEAA.
----------------------------------------------------------------------------------------------------------------
Program Reviews and Management Systems
Sec. 170.500 What program reviews do the Secretaries conduct?
(a) BIADOT and FHWA annually conduct informal program reviews to
examine program procedures and identify improvements. BIA must notify
tribes of these informal program reviews. Tribes may send
representatives to these meetings at their own expense. These reviews
may be held in conjunction with either a national BIA transportation
meeting or an IRR Program Coordinating Committee meeting.
(b) FHWA, BIA, and affected tribes periodically conduct an IRR
Program process review of each BIA regional office's processes,
controls, and stewardship. The review provides recommendations to
improve the processes and controls of the following activities that a
BIA Regional Office performs:
(1) Program Management and Oversight;
(2) Transportation planning;
(3) Design;
(4) Contract administration;
(5) Construction;
(6) Financial management; and
(7) Systems management and existing stewardship agreements.
(c) After the IRR process review, the review team must:
(1) Conduct an exit interview during which it makes a brief oral
report of findings and recommendations to the BIA Regional Director and
staff; and
(2) Provide a written report of its findings and recommendations to
the reviewed office, BIA, all participants, and affected tribal
governments and organizations.
Sec. 170.501 What happens when the review process identifies areas
for improvement?
When the review process identifies areas for improvement:
(a) The regional office must develop a corrective action plan;
(b) BIADOT and FHWA review and approve the plan;
(c) FHWA may provide technical assistance during the development
and implementation of the plan; and
(d) The reviewed BIA regional office implements the plan and
reports either annually or biennially to BIADOT and FHWA on
implementation accomplishments.
Sec. 170.502 Are management systems required for the IRR Program?
(a) To the extent appropriate, the Secretaries must, in
consultation with tribes, develop and maintain the following systems
for the IRR Program:
(1) Pavement management;
(2) Safety management;
(3) Bridge management; and
(4) Congestion management.
(b) Other management systems may include the following:
(1) Public transportation facilities;
(2) Public transportation equipment; and
(3) Intermodal transportation facilities and systems.
[[Page 43133]]
(c) All management systems for the IRR Program must meet the
requirements of 23 CFR part 973.
(d) A tribe may enter into an ISDEAA contract or agreement to
develop, implement, and maintain an alternative tribal management
system for that tribe, provided that such systems are consistent with
Federal management systems.
Sec. 170.503 How are IRR Program management systems funded?
BIA uses IRR Program management funds to develop the nationwide IRR
Program management systems. If a tribe elects to develop its own tribal
management system based on the nationwide management system
requirements in 23 CFR part 973, it may use for this purpose either:
(a) The funds defined in 23 U.S.C. 204(j) for IRR Program tribal
transportation planning; or
(b) IRR Program construction funds.
Bridge Inspection
Sec. 170.504 When and how are bridge inspections performed?
IRR bridge inspections must be performed at least every 2 years to
update the NBI using criteria that meets or exceeds applicable Federal
standards (23 CFR 650.305).
(a) Federal standards for bridge inspections are found in 23 CFR
part 650, subpart C.
(b) Tribes may develop alternative bridge inspection standards,
provided that these standards meet or exceed applicable Federal
standards.
Sec. 170.505 How must bridge inspections be coordinated?
This section applies to bridge inspectors working for BIA; for
tribes under an ISDEAA contract or self-governance agreement; or for
State, county, or local governments. Before performing an inspection,
inspectors must:
(a) Notify affected tribes and State and local governments that an
inspection will occur;
(b) Offer tribal and State and local governments the opportunity to
accompany the inspectors; and
(c) Otherwise coordinate with tribal and State and local
governments.
Sec. 170.506 What are the minimum qualifications for certified bridge
inspectors?
The person responsible for the bridge inspection team must meet the
qualifications for bridge inspectors as defined in 23 CFR part 650,
subpart C.
Sec. 170.507 Who reviews bridge inspection reports?
The person responsible for the bridge inspection team must send a
copy of the inspection report to the BIA regional office. The regional
office:
(a) Reviews the report and furnishes a copy to the affected tribe
for review, comment, and use in programming transportation projects;
and
(b) Sends the report to BIADOT for quality assurance and inclusion
in the National Bridge Inventory (NBI).
Appendix A to Subpart D--Cultural Resource and Environmental
Requirements for the IRR Program
All BIA work for the IRR Program must comply with cultural
resource and environmental requirements under applicable Federal
laws and regulations, including, but not limited to:
1. 16 U.S.C. 1531, Endangered Species Act.
2. 16 U.S.C. 4601, Land and Water Conservation Fund Act (Section
6(f)).
3. 16 U.S.C. 661-667d, Fish and Wildlife Coordination Act.
4. 23 U.S.C. 138, Preservation of Parklands.
5. 25 U.S.C. 3001-3013, Native American Graves Protection and
Repatriation Act.
6. 33 U.S.C. 1251, Federal Water Pollution Control Act and Clean
Water Act.
7. 42 U.S.C. 7401, Clean Air Act.
8. 42 U.S.C. 4321, National Environmental Policy Act.
9. 49 U.S.C. 303, Preservation of Parklands.
10. 7 U.S.C. 4201, Farmland Protection Policy Act.
11. 50 CFR part 402, Endangered Species Act regulations.
12. 7 CFR part 658, Farmland Protection Policy Act regulations.
13. 40 CFR part 93, Air Quality Conformity and Priority
Procedures for use in Federal-aid Highway and Federally-Funded
Transit Programs.
14. 23 CFR part 771, Environmental Impact and Related
Procedures.
15. 23 CFR part 772, Procedures for Abatement of Highway Traffic
Noises and Construction Noises.
16. 23 CFR part 777, Mitigation of Impacts To Wetlands and
Natural Habitat.
17. 36 CFR part 800, Protection of Historic Properties.
18. 40 CFR parts 260-271, Resource Conservation and Recovery
Act.
19. Applicable tribal/State laws.
20. Other applicable Federal laws and regulations.
Appendix B to Subpart D--Design Standards for the IRR Program
Depending on the nature of the project, tribes may use the
following design standards. Additional standards may also apply. To
the extent that any provisions of these standards are inconsistent
with ISDEAA, these provisions do not apply.
1. AASHTO Policy on Geometric Design of Highways and Streets.
2. AASHTO A Guide for Transportation Landscape and Environmental
Design.
3. AASHTO Roadside Design Guide, latest edition.
4. AASHTO Guide for Selecting, Locating and Designing Traffic
Barriers, latest edition.
5. AASHTO Standard Specifications for Highway Bridges, latest
edition.
6. AASHTO Guidelines of Geometric Design of Very Low-Volume
Local Roads (ADT less than or equal to 400).
7. FHWA Federal Lands Highway, Project Development and Design
Manual.
8. FHWA Flexibility in Highway Design.
9. FHWA Roadside Improvements for Local Road and Streets.
10. FHWA Improving Guardrail Installations and Local Roads and
Streets.
11. 23 CFR part 625, Design Standards for Highways.
12. 23 CFR part 630, Preconstruction Procedures.
13. 23 CFR part 633, Required Contract Provisions.
14. 23 CFR part 635, Construction and Maintenance.
15. 23 CFR part 645, Utilities.
16. 23 CFR part 646, Railroads.
17. 23 U.S.C. 106, PS&E.
18. 23 U.S.C. 109, Standards.
19. DOT Metric Conversion Plan, October 31, 1991.
20. MUTCD Manual of Uniform Traffic Safety Devices, latest
edition.
21. Standard Specifications for Construction of Roads and
Bridges on Federal Highway Projects, latest edition.
Subpart E--Service Delivery for Indian Reservation Roads
Funding Process
Sec. 170.600 What must BIA include in the notice of availability of
funds?
(a) Upon receiving the total fiscal year of IRR Program funding
from FHWA, BIA will publish a notice of availability of funds in the
Federal Register that includes the following:
(1) The total funding available to each region for IRR
transportation planning, design, and construction projects based on
each region's Relative Need Distribution Factor (RNDF) defined in
subpart C;
(2) The total funding available to each tribe based on its RNDF,
along with prior year information on IRR Program funding by tribe that
identifies over-funded or advance-funded tribes; and
(3) A listing of FHWA-approved IRRTIP projects for each State
within each BIA region.
(b) Upon publication of the notice under this section, each BIA
Regional Office must provide to each tribe within its region:
(1) A proposed project listing used to develop the region's control
schedule;
(2) An offer to provide the tribe with technical assistance in
preparing contract proposals;
(3) The various options available to the tribe for IRR construction
projects
[[Page 43134]]
(force account methods, direct service, self-determination contract,
and self-governance agreement); and
(4) A request for a response from the tribe within 30 days.
Sec. 170.601 What happens to the unused portion of IRR Program
management and oversight funds reserved by the Secretary?
BIA distributes any unused IRR Program management and oversight
funds to its Regional Offices using the RNDF (see subpart C). The
Regional Offices use the funds for additional construction activities.
Sec. 170.602 If a tribe incurs unforeseen construction costs, can it
get additional funds?
Yes. To the extent feasible, the Secretary must pay for all costs
incurred resulting from unforeseen circumstances of the construction
process (i.e., cost overruns). If the Secretary is unable to fund the
unforeseen costs in a cost reimbursable contract, the tribe may suspend
performance of the contract until sufficient additional funds are
awarded. (See 25 CFR 900.130(e).)
Miscellaneous Provisions
Sec. 170.605 When may BIA use force account methods in the IRR
Program?
BIA may use force account methods in the IRR Program unless the
tribe elects otherwise to enter into a self-determination contract or a
self-governance agreement for the IRR Program. However, BIA must
continue to consult with the tribe before using a force account under
this situation. The applicable FAR and Federal law apply to BIA force
account project activities.
Sec. 170.606 How do legislation and procurement requirements affect
the IRR Program?
Other legislation and procurement requirements apply to the IRR
Program as shown in the following table.
----------------------------------------------------------------------------------------------------------------
Applies to tribes under
Legislation, regulation or self-determination Applies to tribes under Applies to activities
other requirement contracts self-governance agreements performed by the Secretary
----------------------------------------------------------------------------------------------------------------
Buy Indian Act.............. No No Yes.
Buy American Act............ No No Yes.
Federal Acquisition No\1\ No Yes.
Regulation (FAR).
Federal Tort Claims Act..... Yes Yes Yes.
Davis-Bacon Act............. Yes \2\ Yes \2\ Yes.
----------------------------------------------------------------------------------------------------------------
\1\ Unless agreed to by the tribe or tribal organization under ISDEAA, 25 U.S.C. 450j(a), and 25 CFR part
900.115.
\2\ Does not apply when tribe performs work with its own employees.
Sec. 170.607 Can a tribe use its allocation of IRR Program funds for
contract support costs?
Yes. Contract support costs are an eligible item out of a tribe's
IRR Program allocation and need to be included in a tribe's project
construction budget.
Sec. 170.608 Can a tribe pay contract support costs from Department
of the Interior or BIA appropriations?
No. Contract support costs for IRR construction projects cannot be
paid out of Department of the Interior or BIA appropriations.
Contracts and Agreements Under ISDEAA
Sec. 170.610 What IRR Program functions may a tribe assume under
ISDEAA?
A tribe may assume all IRR Program functions and activities that
are otherwise contractible under a self-determination contract or self-
governance agreement following the requirements in 25 CFR parts 900 or
1000.
(a) Tribes may use IRR Program project funds contained in their
contracts or annual funding agreements for contractible supportive
administrative functions.
(b) Appendix A to this subpart contains a list of non-contractible
functions and activities that cannot be included in contracts or
agreements.
Sec. 170.611 What special provisions apply to ISDEAA contracts and
agreements?
(a) Multi-year contracts and agreements. The Secretary can enter
into a multi-year IRR Program self-determination contract and self-
governance agreement with a tribe under sections 105(c)(1)(A) and (2)
of ISDEAA. The amount of such contracts or agreements is subject to the
availability of appropriations.
(b) Consortia. Under Title I and Title IV of ISDEAA, tribes and
multi-tribal organizations are eligible to assume IRR Programs under
consortium contracts or agreements. For an explanation of self-
determination contracts, refer to Title I, 25 U.S.C. 450f. For an
explanation of self-governance agreements, see Title IV, 25 U.S.C.
450b(l) and 458b(b)(2).
(c) Advance payments. The Secretary and the tribe must negotiate a
schedule of advance payments as part of the terms of a self-
determination contract in accordance with 25 CFR 900.132.
(d) Design and construction contracts. The Secretary can enter into
a design/construct IRR Program self-determination contract that
includes both the design and construction of one or more IRR projects.
The Secretary may make advance payments to a tribe:
(1) Under a self-determination design/construct contract for
construction activities based on progress, need, and the payment
schedule negotiated under 25 CFR 900.132; and
(2) Under a self-governance agreement in the form of annual or
semiannual installments as indicated in the agreement.
Sec. 170.612 How are non-contractible functions funded?
(a) All non-contractible IRR program functions are funded by IRR
Program management and oversight funds.
(b) All non-contractible IRR project functions are funded by IRR
Program construction funds.
Sec. 170.613 When does BIA determine the amount of funds needed for
non-contractible non-project related functions?
Each fiscal year the Secretary will develop national and regional
BIA IRR Program budgets. Within the first quarter of each fiscal year
BIA will publish a copy of the national and regional IRR budgets.
Sec. 170.614 Can a tribe receive funds before BIA publishes the
notice of funding availability?
A tribe can receive funds before BIA publishes the notice of
funding availability required by Sec. 170.600(a)(1) only if the tribe
has a negotiated self-determination contract or self-governance
agreement.
Sec. 170.615 Can a tribe receive advance payments for non-
construction activities?
Yes. BIA must make advance payments to a tribe for non-construction
[[Page 43135]]
activities under 25 U.S.C. 450l for self-determination contracts on a
quarterly, semiannual, lump-sum, or other basis proposed by a tribe and
authorized by law.
Sec. 170. 616 How are advance payments made when additional IRR
Program funds are made available after execution of the self-governance
agreement?
When additional IRR Program funds are available, following the
procedures in 25 CFR 1000.104, tribes can request to use the additional
funds for IRR Program activities or projects and have an addendum to
the agreement executed.
Sec. 170.617 May a tribe include a contingency in its proposal
budget?
(a) A tribe with a self-determination contract may include a
contingency amount in its proposed budget in accordance with 25 CFR
900.127(e)(8).
(b) A tribe with a self-governance agreement may include a project-
specific line item for contingencies if the tribe does not include its
full IRR Program funding allocation in the agreement.
(c) The amounts in both paragraphs (a) and (b) of this section must
be within the RNDF allocation or within the negotiated ISDEAA contract
or agreement.
Sec. 170.618 Can a tribe keep savings resulting from project
administration?
When actual costs of the projects under contracts or agreements for
construction projects are less than the estimated costs, the Secretary
will determine the use of the excess funds after consultation with the
tribe. (See 25 U.S.C. 450e-2.)
Sec. 170.619 Do tribal preference and Indian preference apply to IRR
Program funding?
Tribal preference and Indian preference apply to IRR Program
funding as shown in the following table:
------------------------------------------------------------------------
If . . . Then . . .
------------------------------------------------------------------------
(a) A contract serves a single tribe...... Section 7(c) under Title I
of ISDEAA allows tribal
employment or contract
preference laws, including
tribe local preference
laws, to govern.
(b) A contract serves more than one tribe. Section 7(b) under Title I
of ISDEAA applies.
(c) A self-governance agreement exists 25 CFR 1000.406 applies.
under Title IV of ISDEAA.
------------------------------------------------------------------------
Sec. 170.620 How do ISDEAA's Indian preference provisions apply?
This section applies when the Secretary or a tribe enters into a
cooperative agreement with a State or local government for an IRR
construction project. The tribe and the parties may choose to
incorporate the provisions of section 7(b) of ISDEAA in a cooperative
agreement.
Sec. 170.621 What if a tribe fails to substantially perform work
under a contract or agreement?
If a tribe fails to substantially perform work under a contract or
agreement:
(a) For self-determination contracts, the Secretary must use the
monitoring and enforcement procedures in 25 CFR 900.131(a)-(b) and
ISDEAA, part 900 subpart L (appeals); and
(b) For self-governance agreements, the Secretary must use the
monitoring and enforcement procedures in 25 CFR part 1000 subpart K.
Sec. 170.622 What IRR programs, functions, services, and activities
are subject to the self-governance construction regulations?
All IRR Program design and construction projects and activities,
whether included separately or under a program in the agreement, are
subject to the regulations in 25 CFR 1000 subpart K, including
applicable exceptions.
Sec. 170.623 How are IRR Program projects and activities included in
a self-governance agreement?
To include an IRR Program project or activity in a self-governance
agreement, the following information is required:
(a) A line item for each project or activity;
(b) Sufficient detail to describe the work as included in the FHWA-
approved IRRTIP and Control Schedule; and
(c) All other information required under 25 CFR 1000 subpart K.
Sec. 170.624 Is technical assistance available?
Yes. Technical assistance is available from BIA for tribes with
questions about contracting the IRR Program or IRR projects. For tribes
with questions about self-governance agreements for the IRR Program or
IRR project(s), technical assistance is available from the Office of
Self-Governance and BIA. Technical assistance can include, but is not
limited to, assistance in the preparation of self-determination
contract proposal(s) and self-governance agreements.
Sec. 170.625 What regulations apply to waivers?
The following regulations apply to waivers:
(a) For self-determination contracts, 25 CFR 900.140-148;
(b) For self-governance agreements, 25 CFR 1000.220-232; and
(c) For direct service, 25 CFR 1.2.
Sec. 170.626 How does a tribe request a waiver of a Department of
Transportation regulation?
A tribe must follow the procedures in ISDEAA, Title I, and 25 CFR
900.140-148 for self-determination contracts and Title IV, 25 CFR
1000.220-232 for tribal self-governance agreements. A courtesy copy of
the request should be sent to the Secretary of Transportation at: 400
7th St., SW., HFL-1, Washington, DC 20590. When a waiver request is
outside the Secretary's authority, the Secretary should forward the
request to the Secretary of Transportation.
Appendix A to Subpart E--IRR Program Functions That Are Not Otherwise
Contractible
The program functions listed in this appendix cannot be included
in a self-determination contract or self-governance agreement. (23
U.S.C. 202(d)(3)(B))
A. IRR project-related pre-contracting activities:
1. Notifying tribes of available funding including the right of
first refusal; and
2. Providing technical assistance.
B. IRR project-related contracting activities:
1. Providing technical assistance;
2. Reviewing all scopes of work under 25 CFR 900.122;
3. Evaluating proposals and making declination decisions, if
warranted;
4. Performing declination activities;
5. Negotiating and entering into contracts or agreements with
State, tribal, and local governments and other Federal agencies;
6. Processing progress payments or contract payments;
7. Approving contract modifications;
8. Processing claims and disputes with tribal governments; and
9. Closing out contracts or agreements.
C. Planning activities:
1. Reviewing IRR transportation improvement programs developed
by tribes or other contractors;
2. Reviewing IRR long-range transportation plans developed by
tribes or other contractors; and
3. Performing other Federal responsibilities identified in the
IRR Transportation Planning Procedures and Guidelines manual.
D. Environmental and historical preservation activities:
1. Reviewing and approving all items required for environmental
compliance; and
2. Reviewing and approving all items required for archaeological
compliance.
E. Processing rights-of-way:
1. Reviewing rights-of-way applications and certifications;
2. Approving rights-of-way documents;
3. Processing grants and acquisition of rights-of-way requests
for tribal trust and allotted lands under 25 CFR part 169;
4. Responding to information requests;
[[Page 43136]]
5. Filing Affidavit of Completion Forms; and
6. Performing custodial functions related to storing rights-of-
way documents.
F. Conducting project development and design under 25 CFR
900.131:
1. Participating in the plan-in-hand reviews on behalf of BIA as
facility owner;
2. Reviewing and/or approving plans, specifications, and cost
estimates (PS&E's) for health and safety assurance on behalf of BIA
as facility owner;
3. Reviewing PS&E's to assure compliance with NEPA as well as
all other applicable Federal laws; and
4. Reviewing PS&E's to assure compliance with or exceeding
Federal standards for IRR design and construction.
G. Construction:
1. Making application for clean air/clean water permits as
facility owner;
2. Ensuring that all required State/tribal/Federal permits are
obtained;
3. Performing quality assurance activities;
4. Conducting value engineering activities as facility owner;
5. Negotiating with contractors on behalf of Federal Government;
6. Approving contract modifications/change orders;
7. Conducting periodic site visits;
8. Performing all Federal Government required project-related
activities contained in the contract documents and required by 25
CFR parts 900 and 1000;
9. Conducting activities to assure compliance with safety plans
as a jurisdictional responsibility hazardous materials, traffic
control, OSHA, etc.;
10. Participating in final inspection and acceptance of project
documents as-built drawings on behalf of BIA as facility owner; and
11. Reviewing project closeout activities and reports.
H. Other activities:
1. Performing other non-contractible required IRR project
activities contained in this part, ISDEAA and part 1000; and
2. Other Title 23 non-project-related management activities.
I. BIADOT program management:
1. Developing budget on needs for the IRR Program;
2. Developing legislative proposals;
3. Coordinating legislative activities;
4. Developing and issuing regulations;
5. Developing and issuing IRR planning, design, and construction
standards;
6. Developing/revising interagency agreements;
7. Developing and approving IRR Program stewardship agreements
in conjunction with FHWA;
8. Developing annual IRR Program obligation and IRR Program
accomplishments reports;
9. Developing reports on IRR Program project expenditures and
performance measures for the Government Performance and Results Act
(GPRA);
10. Responding to/maintaining data for congressional inquiries;
11. Developing and maintaining funding formula and its database;
12. Allocating IRR Program and other transportation funding;
13. Providing technical assistance to tribe/tribal
organizations/agencies/regions;
14. Providing national program leadership for: National Scenic
Byways Program, Public Lands Highways Discretionary Program,
Transportation Enhancement Program, Indian Local Technical
Assistance Program, Recreational Travel and Tourism, Transit
Program, ERFO Program, Presidential initiatives (Millennium Trails,
Lewis & Clark, Western Tourism Policy Group);
15. Participating in and supporting tribal transportation
association meetings;
16. Coordinating with and monitoring Indian Local Technical
Assistance Program centers;
17. Planning, coordinating, and conducting BIA/tribal training;
18. Developing information management systems to support
consistency in data format, use, etc., with the Secretary of
Transportation for the IRR Program;
19. Participating in special transportation related workgroups,
special projects, task forces and meetings as requested by tribes;
20. Participating in national, regional, and local
transportation organizations;
21. Participating in and supporting FHWA Coordinated Technology
Implementation program;
22. Participating in national and regional IRR Program meetings;
23. Consulting with tribes on non-project related IRR Program
issues;
24. Participating in IRR Program, process, and product reviews;
25. Developing and approving national indefinite quantity
service contracts;
26. Assisting and supporting the IRR Coordinating Committee;
27. Processing IRR Bridge program projects and other
discretionary funding applications or proposals from tribes;
28. Coordinating with FHWA;
29. Performing stewardship of the IRR Program;
30. Performing oversight of the IRR Program and its funded
activities;
31. Performing any other non-contractible IRR Program activity
included in this part; and
32. Determining eligibility of new uses of IRR Program funds.
J. BIADOT Planning:
1. Maintaining the official IRR inventory;
2. Reviewing long-range transportation plans;
3. Reviewing and approving IRR transportation improvement
programs;
4. Maintaining nationwide inventory of IRR strip and atlas maps;
5. Coordinating with tribal/State/regional/local governments;
6. Developing and issuing procedures for management systems;
7. Distributing approved IRR transportation improvement programs
to BIA regions;
8. Coordinating with other Federal agencies as applicable;
9. Coordinating and processing the funding and repair of damaged
Indian Reservation Roads with FHWA;
10. Calculating and distributing IRR transportation planning
funds to BIA regions;
11. Reprogramming unused IRR transportation planning funds at
the end of the fiscal year;
12. Monitoring the nationwide obligation of IRR transportation
planning funds;
13. Providing technical assistance and training to BIA regions
and tribes;
14. Approving Atlas maps;
15. Reviewing IRR inventory information for quality assurance;
and
16. Advising BIA regions and tribes of transportation funding
opportunities.
K. BIADOT engineering:
1. Participating in the development of design/construction
standards with FHWA;
2. Developing and approving design/construction/maintenance
standards;
3. Conducting IRR Program/product reviews; and
4. Developing and issuing technical criteria for management
systems.
L. BIADOT responsibilities for bridges:
1. Maintaining BIA National Bridge Inventory information/
database;
2. Conducting quality assurance of the bridge inspection
program;
3. Reviewing and processing IRR Bridge program applications;
4. Participating in second level review of IRR bridge PS-E's;
and
5. Developing criteria for bridge management systems.
M. BIADOT responsibilities to perform other non-contractible
required IRR Program activities contained in this part.
N. BIA regional offices program management:
1. Designating IRR System roads;
2. Notifying tribes of available funding;
3. Developing state IRR transportation improvement programs;
4. Providing FHWA-approved IRR transportation improvement
programs to tribes;
5. Providing technical assistance to tribes/tribal
organizations/agencies;
6. Funding common services as provided as part of the region/
agency/BIA Division of Transportation IRR Program costs;
7. Processing and investigating non-project related tort claims;
8. Preparing budgets for BIA regional and agency IRR Program
activities;
9. Developing/revising interagency agreements;
10. Developing control schedules/transportation improvement
programs;
11. Developing regional IRR Program stewardship agreements;
12. Developing quarterly/annual IRR Program obligation and
program accomplishments reports;
13. Developing reports on IRR project expenditures and
performance measures for Government Performance and Results Act
(GPRA);
14. Responding to/maintaining data for congressional inquiries;
15. Participating in Indian transportation association meetings;
16. Participating in Indian Local Technical Assistance Program
(LTAP) meetings and workshops;
17. Participating in BIA/tribal training development highway
safety, work zone safety, etc;
18. Participating in special workgroups, task forces, and
meetings as requested by tribes and BIA region/agency personnel;
[[Page 43137]]
19. Participating in national, regional, or local transportation
organizations meetings and workshops;
20. Reviewing Coordinated Technology Implementation Program
project proposals;
21. Consulting with tribal governments on non-project related
program issues;
22. Funding costs for common services as provided as part of BIA
IRR region/agency/contracting support costs;
23. Reviewing IRR Atlas maps;
24. Processing Freedom of Information Act (FOIA) requests;
25. Monitoring the obligation and expenditure of all IRR Program
funds allocated to BIA region;
26. Performing activities related to the application for ERFO
funds, administration, and oversight of such funds; and
27. Participating in IRR Program, process, and product reviews.
O. BIA regional offices' planning:
1. Coordinating with tribal/State/regional/local government;
2. Coordinating and processing the funding and repair of damaged
Indian Reservation Roads with tribes;
3. Reviewing and approving IRR Inventory data;
4. Maintaining, reviewing, and approving the management systems
databases;
5. Reviewing and approving IRR State transportation improvement
programs; and
6. Performing Federal responsibilities identified in the IRR
Transportation Planning Procedures and Guidelines manual.
P. BIA regional offices' engineering:
1. Approving tribal standards for the IRR Program use;
2. Developing and implementing new engineering techniques in the
IRR Program; and
3. Providing technical assistance.
Q. BIA regional offices' responsibilities for bridges:
1. Reviewing and processing IRR bridge program applications;
2. Reviewing and processing IRR bridge inspection reports and
information; and
3. Ensuring the safe use of roads and bridges.
R. BIA regional offices' other responsibilities for performing other
non-contractible required IRR Program activities contained in this
part.
Subpart F--Program Oversight and Accountability
Sec. 170.700 What is the IRR Program stewardship plan?
The IRR Program stewardship plan delineates the respective roles
and responsibilities of BIA and FHWA in the administration of the IRR
Program and the process used for fulfilling those roles and
responsibilities.
Sec. 170.701 May a direct service tribe and BIA Region sign a
Memorandum of Understanding?
Yes. An IRR Program tribal/BIA region MOU is a document that a
direct service tribe and BIA may enter into to help define the roles,
responsibilities and consultation process between the regional BIA
office and the Indian tribal government. It describes how the IRR
Program will be carried out by BIA on the tribe's behalf.
Sec. 170.702 What activities may the Secretary review and monitor?
The Secretary reviews and monitors the performance of construction
activities under 25 CFR 900 subpart J and 25 CFR 1000 subpart K.
Subpart G--BIA Road Maintenance
Sec. 170.800 Who owns IRR transportation facilities?
Public authorities such as tribes, States, counties, local
governments, and the Federal Government own IRR transportation
facilities.
Sec. 170.801 What is the BIA Road Maintenance Program?
The BIA Road Maintenance Program covers the distribution and use of
the funds provided by Congress in the annual Department of the Interior
appropriations acts for maintaining transportation facilities. Appendix
A to this subpart contains a list of activities that are eligible for
funding under the BIA road maintenance program.
Sec. 170.802 How is road maintenance funded?
(a) The U.S. Congress funds a BIA program for the maintenance of
IRR transportation facilities as defined in this part through annual
appropriations for the Department of the Interior.
(b) The States, counties, and local governments fund the
maintenance of IRR transportation facilities that they own or have
agreed to maintain.
(c) Tribal governments, at their discretion, may also provide for
the maintenance of IRR transportation facilities.
Sec. 170.803 What facilities are eligible under the BIA Road
Maintenance Program?
(a) The following public transportation facilities are eligible for
maintenance under the BIA Road Maintenance Program:
(1) BIA transportation facilities listed in paragraph (b) of this
section;
(2) Non-BIA transportation facilities, if the tribe served by the
facility feels that maintenance is required to ensure public health,
safety, and economy, and if the tribe executes an agreement with the
owning public authority within available funding;
(3) Tribal transportation facilities such as public roads, highway
bridges, trails, and bus stations; and
(4) Other transportation facilities as approved by the Secretary.
(b) The following BIA transportation facilities are eligible for
maintenance under paragraph (a)(1) of this section:
(1) BIA road systems and related road appurtenances such as signs,
traffic signals, pavement striping, trail markers, guardrails, etc.;
(2) Highway bridges and drainage structures;
(3) Airport runways and heliport pads, including runway lighting;
(4) Boardwalks;
(5) Adjacent parking areas;
(6) Maintenance yards;
(7) Bus stations;
(8) System public pedestrian walkways, paths, bike and other
trails;
(9) Motorized vehicle trails;
(10) Public access roads to heliports and airports;
(11) BIA and tribal post-secondary school roads and parking lots
built with IRR Program funds; and
(12) Public ferry boats and boat ramps.
Sec. 170.804 How is BIA's Road Maintenance Program related to the IRR
Program?
The following chart illustrates how BIA's Road Maintenance Program
is related to other Title 23 U.S.C. programs:
[[Page 43138]]
[GRAPHIC] [TIFF OMITTED] TR19JY04.006
Sec. 170.805 What are the local, tribal, and BIA roles in
transportation facility maintenance?
(a) State, county, and local governments normally perform the
maintenance of their IRR transportation facilities.
(b) Tribes may perform or provide for their maintenance
responsibilities by formal agreement or other contracts with any other,
State, county, or local government.
(c) BIA's responsibility includes preparing annual budget requests
under 23 U.S.C. 204(c) that include a report of the shortfalls in each
BIA Region in appropriations of BIA Road Maintenance dollars.
Sec. 170.806 What is an IRR Transportation Facilities Maintenance
Management System?
An IRR Transportation Facilities Maintenance Management System
(TFMMS) is a tool BIA and tribes will use to budget, prioritize, and
schedule transportation facility maintenance activities. It will be
used to extend the service life of an IRR transportation facility,
ensure safety, and report future funding needs to the Secretary. BIA
will develop the IRR TFMMS.
Sec. 170.807 What must BIA include when it develops an IRR
Transportation Facilities Maintenance Management System?
(a) At a minimum, an IRR TFMMS system must include components for:
(1) Uniformly collecting, processing, and updating data;
(2) Predicting facility deterioration;
(3) Identifying alternative actions;
(4) Projecting maintenance costs;
(5) Tracking and reporting of actual maintenance costs and
activities accomplished;
(6) Forecasting short- and long-term budget needs;
(7) Recommended programs and schedules for implementation within
policy and budget constraints;
(8) Tracking and reporting unmet needs; and
(9) Ability to produce various reports, including customized
reports.
(b) The minimum data requirements include:
(1) Cost of maintenance activity per mile broken down by surface
type and frequency of activity;
(2) Cost of bridge maintenance by surface area of deck and
frequency of activity;
(3) Cost of maintenance of other inter-modal facilities;
(4) Information from other IRR Program management systems;
(5) Future needs; and
(6) Basic facility data including but not limited to route, bridge
number, maintenance activity code, facility inspection dates.
Sec. 170.808 Can BIA Road Maintenance Program funds be used to
improve IRR transportation facilities?
No. BIA Road Maintenance Program funds cannot be used to improve
roads or other IRR transportation facilities to a higher road
classification, standard, or capacity.
Sec. 170.809 Can a tribe perform road maintenance under a self-
determination contract or self-governance agreement?
Yes. Any tribe may enter into a self-determination contract or
self-governance agreement to conduct BIA or tribal transportation
facility maintenance under ISDEAA and 25 CFR part 900 or 1000. The
self-determination contract or self-governance agreement does not
relieve BIA of its responsibility for maintenance.
Sec. 170.810 To what standards must an IRR transportation facility be
maintained?
IRR transportation facilities must be maintained, subject to
availability of funding, in accordance with the IRR TFMMS. The
Secretary will develop these standards with the input of the IRR
Program Coordinating Committee. The Secretary must accept as interim
standards any tribal maintenance standards that meet or exceed
applicable Federal standards. Interim standards must include any of the
following:
(a) Appropriate National Association of County Engineers
maintenance standards;
(b) AASHTO road and bridge maintenance manuals, latest edition; or
(c) Other applicable Federal, State, tribal, or local government
maintenance standards as may be negotiated in an ISDEAA road
maintenance self-determination contract or self-governance agreement.
Sec. 170.811 What happens if lack of funds results in inadequate
maintenance?
If BIA determines that an IRR transportation facility is not being
maintained under IRR TFMMS standards due to insufficient funding, the
Secretary will notify the facility owner, and if tribal or BIA owned,
continue to request annual maintenance funding for that facility. In
addition, the Secretary will report these findings to Secretary of
Transportation under 23 U.S.C. 204. The Secretary will provide a draft
copy of the report to the affected tribe for comment before forwarding
it to Secretary of Transportation.
[[Page 43139]]
Sec. 170.812 What is emergency maintenance?
Emergency maintenance is work that must be accomplished immediately
because of life threatening circumstances due to a catastrophic failure
or natural disaster. Examples of emergency maintenance include: ice and
snow control, traffic control, work in slide areas, repairs to drainage
washouts, retrieving hazardous materials, suppressing wild fires, and
repairing the ravages of other disasters.
Sec. 170.813 When can access to IRR transportation facilities be
restricted?
IRR transportation facilities must be open and available for public
use, as are IRRs (Sec. 170.120).
(a) The Secretary may, in consultation with a tribe and applicable
private landowners, restrict or temporarily close an IRR transportation
facility to public use for the following reasons:
(1) Because of unsafe conditions;
(2) Because of natural disasters;
(3) For fish or game protection;
(4) To prevent traffic from causing damage to the facility; and
(5) For reasons deemed to be in the public interest such as fire
prevention or suppression as approved by the Secretary.
(b) Consultation is not required whenever the above conditions
involve immediate safety or life-threatening situations.
(c) Certain IRR transportation facilities owned by the tribes or
BIA may be permanently closed when the tribal government and the
Secretary agree. Once this agreement is reached, BIA must remove the
facility from the IRR System.
Appendix A to Subpart G--List of Activities Eligible for Funding Under
BIA Transportation Facility Maintenance Program
The following activities are eligible for BIA Transportation
Facility Maintenance Program. The list is not all-inclusive.
1. Cleaning and repairing ditches and culverts.
2. Stabilizing, removing, and controlling slides, drift sand,
mud, ice, snow, and other impediments.
3. Adding additional culverts to prevent roadway and adjoining
property damage.
4. Repairing, replacing or installing traffic control devices,
guardrails and other features necessary to control traffic and
protect the road and the traveling public.
5. Removing roadway hazards.
6. Repairing or developing stable road embankments.
7. Repairing parking facilities and appurtenances such as
striping, lights, curbs, etc.
8. Repairing transit facilities and appurtenances such as bus
shelters, striping, sidewalks, etc.
9. Training maintenance personnel.
10. Administering the BIA Transportation Facility Maintenance
Program.
11. Performing environmental/archeological mitigation associated
with transportation facility maintenance.
12. Leasing, renting, or purchasing of maintenance equipment.
13. Paying utilities cost for roadway lighting and traffic
signals.
14. Purchasing maintenance materials.
15. Developing, implementing, and maintaining an IRR
Transportation Facility Maintenance Management System (TFMMS).
16. Performing pavement maintenance such as pot hole patching,
crack sealing, chip sealing, surface rejuvenation, and thin overlays
(less than 1 inch).
17. Performing erosion control.
18. Controlling roadway dust.
19. Re-graveling roads.
20. Controlling vegetation through mowing, noxious weed control,
trimming, etc.
21. Making bridge repairs.
22. Paying the cost of closing of transportation facilities due
to safety or other concerns.
23. Maintaining airport runways, heliport pads, and their public
access roads.
24. Maintaining and operating BIA public ferry boats.
25. Making highway alignment changes for safety reasons. These
changes require prior notice to the Secretary.
26. Making temporary highway alignment or relocation changes for
emergency reasons.
27. Maintaining other IRR intermodal transportation facilities
provided that there is a properly executed agreement with the owning
public authority within available funding.
Subpart H--Miscellaneous Provisions
Hazardous and Nuclear Waste Transportation
Sec. 170.900 What is the purpose of the provisions relating to
transportation of hazardous and nuclear waste?
Sections 170.900 through 170.907 on transportation of nuclear and
hazardous waste are provided for information only, they do not create
any legal responsibilities or duties for any person or entity, and are
not intended to create any basis for a cause of action under the
Federal Tort Claims Act.
Sec. 170.901 What standards govern transportation of radioactive and
hazardous materials?
DOT, the International Atomic Energy Agency, the U.S. Nuclear
Regulatory Commission (NRC) and the Environmental Protection Agency
have established standards and regulations for the shipment of
radioactive and hazardous materials. Legal authority includes, but is
not limited to, 23 U.S.C. 141; 23 U.S.C. 127; 49 CFR parts 107, 171-
180; 10 CFR part 71.
Sec. 170.902 What is the role of State, tribal, and local
governments?
State, tribal, and local governments typically provide for the
safety of their residents and other persons and protection of resources
within their jurisdictions. With respect to radioactive and hazardous
materials, some State, tribal, and local governments enact legislation,
execute cooperative agreements, designate alternate transportation
routes, develop emergency response plans, perform emergency response,
issue permits, conduct vehicle inspections, enforce traffic laws, and
perform highway construction and maintenance. These activities must not
conflict with Federal laws and regulations.
Sec. 170.903 Who notifies tribes of the transport of radioactive
waste?
The Department of Energy (DOE) has elected, by policy, to notify
tribes of DOE shipments through their jurisdiction.
Sec. 170.904 Who responds to an accident involving a radioactive or
hazardous materials shipment?
Tribal, Federal, local, and State police, fire departments, and
rescue squads are often the first to respond to transportation
accidents involving radioactive or hazardous materials. If radioactive
materials are involved, DOE typically:
(a) Ensures that appropriate State and tribal agencies are
contacted and coordinate any necessary Radiological Assistance Program
team activities; and
(b) Dispatches a Radiological Assistance Program team that may
include nuclear engineers, health physicists, industrial hygienists,
public affairs specialists, and other personnel who provide related
services.
Sec. 170.905 How can tribes obtain training in handling hazardous
material?
(a) Tribes cannot use IRR Program funds to train personnel to
handle radioactive and hazardous material.
(b) Tribes can seek training from DOE, EPA, NRC, OSHA, States, and
other sources. Funding is available from DOT under the Hazardous
Materials Uniform Safety Act, EPA for monitoring and FEMA for general
preparedness.
Sec. 170.906 Who cleans up radioactive and hazardous material spills?
The carrier is typically responsible for cleanup of a radioactive
or hazardous material spill with assistance from the shipper using
established standards and guidelines. The carrier should work with the
appropriate tribal, local, State and Federal agencies to address all
cleanup issues, such as arranging or
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repackaging of the cargo, if necessary, and disposing of contaminated
materials.
Reporting Requirements and Indian Preference
Sec. 170.910 What information on the IRR Program or projects must BIA
provide to tribes?
At the written request of a tribe, BIA must provide available
information on the IRR Program or projects to a tribe within a
reasonable time.
Sec. 170.911 Are Indians entitled to employment and training
preferences?
(a) Federal law gives hiring and training preferences, to the
greatest extent feasible, to Indians for all work performed under the
IRR Program.
(b) Under 25 U.S.C. 450e(b) and 23 U.S.C. 204(e), Indian
organizations and Indian-owned economic enterprises are entitled to a
preference, to the greatest extent feasible, in the award of contracts,
subcontracts and sub-grants for all work performed under the IRR
Program.
Sec. 170.912 Does Indian employment preference apply to Federal-aid
Highway Projects?
(a) Tribal, State, and local governments may provide an Indian
employment preference for Indians living on or near a reservation on
projects and contracts that meet the definition of an Indian
Reservation Road. (See 23 U.S.C. 101(a)(12) and 140(d), and 23 CFR
635.117(d).)
(b) Tribes may target recruiting efforts toward Indians living on
or near Indian reservations, Indian lands, Alaska Native villages,
pueblos, and Indian communities.
(c) Tribes and tribal employment rights offices should work
cooperatively with State and local governments to develop contract
provisions promoting employment opportunities for Indians on eligible
federally funded transportation projects. Tribal, State, and local
representatives should confer to establish Indian employment goals for
these projects.
Sec. 170.913 Do tribal-specific employment rights and contract
preference laws apply?
Yes. When a tribe or consortium administers an IRR Program or
project intended to benefit that tribe or a tribe within the
consortium, the benefitting tribe's employment rights and contracting
preference laws apply. (See Sec. 170.619 and 25 U.S.C. 450e(c).)
Sec. 170.914 What is the difference between tribal preference and
Indian preference?
Indian preference is a hiring preference for Indians in general.
Tribal preference is a preference adopted by a tribal government that
may or may not include a preference for Indians in general, Indians of
a particular tribe, Indians in a particular region, or any combination
thereof.
Sec. 170.915 May tribal employment taxes or fees be included in an
IRR project budget?
Yes. The cost of tribal employment taxes or fees may be included in
the budget for an IRR program or project, except for BIA force account.
Sec. 170.916 May tribes impose taxes or fees on those performing IRR
Program services?
Yes. Tribes, as sovereign nations, may impose taxes and fees for
IRR Program activities. When a tribe administers IRR programs or
projects under ISDEAA, its tribal employment and contracting preference
laws, including taxes and fees, apply.
Sec. 170.917 Can tribes receive direct payment of tribal employment
taxes or fees?
This section applies to non-tribally administered IRR projects.
Tribes can request that BIA pay tribal employment taxes or fees
directly to them under a voucher or other written payment instrument,
based on a negotiated payment schedule. Tribes may consider requesting
direct payment of tribal employment taxes or fees from other
transportation departments in lieu of receiving their payment from the
contractor.
Emergency Relief
Sec. 170.920 What is the purpose of the provisions relating to
emergency relief?
Sections 170.920 through 170.927 relating to emergency relief are
provided for information only and do not change the provisions of 23
CFR part 668 or existing guidance on emergency relief.
Sec. 170.921 What emergency or disaster assistance programs are
available?
(a) FHWA operates two emergency relief programs:
(1) The Emergency Relief (ER) Program, which provides disaster
assistance for Federal-aid highways owned by State, county and local
governments; and
(2) The Emergency Relief for Federally Owned Roads (ERFO) Program,
which provides disaster assistance for Federal roads, including Indian
Reservation Roads, that have been damaged due to natural disasters
(floods, hurricanes, tornadoes, etc.).
(b) The Federal Emergency Management Agency (FEMA) may be
considered as an alternate funding source to repair damage that is
ineligible under the ER or ERFO Programs.
Sec. 170.922 How can States get Emergency Relief Program funds to
repair IRR System damage?
States can request emergency relief program funds to repair damage
to Federal-aid highways caused by natural disasters or catastrophic
failures. It is the responsibility of individual States to request
these funds.
Sec. 170.923 What qualifies for ERFO funding?
(a) Tribes can use ERFO funding to repair damage to IRR
transportation facilities (including roads, bridges, and related
structures) caused by natural disaster over a widespread area or by a
catastrophic failure from any external cause. The Secretary of
Transportation determines eligible repairs under 23 CFR 668, subpart B.
(1) Examples of natural disasters include, but are not limited to,
floods, earthquakes, tornadoes, landslides, avalanches or severe
storms, such as saturated surface conditions and high-water table
caused by precipitation over an extended period of time.
(2) An example of a catastrophic failure includes, but is not
limited to, a bridge collapse after being struck by a barge, truck or a
landslide.
(b) Structural deficiencies, normal physical deterioration, and
routine heavy maintenance do not qualify for ERFO funding.
Sec. 170.924 What happens if DOT denies an ERFO claim?
The appealing tribe or the facility owner (if the tribe is not the
owner) may appeal the finding or determination to the Secretary of
Transportation at: FHWA, 400 7th St., SW., HFL-1, Washington, DC 20590.
If the tribe is appealing it must provide a courtesy copy of its appeal
to BIA.
Sec. 170.925 Is ERFO funding supplemental to IRR Program funding?
Yes. If ERFO funds are approved and available, they can be used to
supplement IRR construction and maintenance funds for FHWA-approved
repairs. If IRR construction or maintenance funds are used to address
an approved claim when ERFO funds are unavailable, the next authorized
ERFO funds may be used to reimburse the construction or maintenance
funds expended.
Sec. 170.926 Can a tribe administer approved ERFO repairs under a
self-determination contract or a self-governance agreement?
Yes.
Sec. 170.927 How can FEMA Program funds be used to repair damage?
(a) A tribe can request FEMA Program funds for emergency repairs to
damaged
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roads not on the IRR System if the President has declared a major
disaster or emergency. The tribe makes the request by submitting an SF
424, Application for Federal Assistance, directly to FEMA, as described
in FEMA Response and Recovery Directorate 9512.4 (Dec. 28, 1999).
(b) Tribes can ask States to seek FEMA Program funds to repair
damage to roads not on the IRR System.
Tribal Transportation Departments
Sec. 170.930 What is a tribal transportation department?
A tribal transportation department is a department, commission,
board, or official of any tribal government charged by its laws with
the responsibility for highway construction. Tribal governments, as
sovereign nations, have inherent authority to establish their own
transportation departments under their own tribal laws. Tribes may
staff and organize transportation departments in any manner that best
suits their needs. Tribes can receive technical assistance from Indian
LTAP centers, BIA regional road engineers, or AASHTO to establish a
tribal transportation department.
Sec. 170.931 Can tribes use IRR Program funds to pay tribal
transportation department operating costs?
Yes. Tribes can use IRR Program funds to pay the cost of planning,
administration, and performance of approved IRR Program activities (see
appendix A, subpart B). Tribes can also use BIA road maintenance funds
to pay the cost of planning, administration, and performance of
maintenance activities under this part.
Sec. 170.932 Are there other funding sources for tribal
transportation departments?
There are many sources of funds that may help support a tribal
transportation department. The following are some examples of
additional funding sources:
(a) Tribal general funds;
(b) Tribal Priority Allocation;
(c) Tribal permits and license fees;
(d) Tribal fuel tax;
(e) Federal, State, private, and local transportation grants
assistance;
(f) Tribal Employment Rights Ordinance fees (TERO); and
(g) Capacity building grants from Administration for Native
Americans and other organizations.
Sec. 170.933 Can tribes regulate oversize or overweight vehicles?
Yes. Tribal governments can regulate travel on roads under their
jurisdiction and establish a permitting process to regulate the travel
of oversize or overweight vehicles, in accordance with applicable
Federal law. BIA may, with the consent of the affected tribe, establish
a permitting process to regulate the travel of oversize or overweight
vehicles on BIA-system roads.
Resolving Disputes
Sec. 170.934 Are alternative dispute resolution procedures available?
(a) Federal agencies should use mediation, conciliation,
arbitration, and other techniques to resolve disputes brought by IRR
Program beneficiaries. The goal of these alternative dispute resolution
(ADR) procedures is to provide an inexpensive and expeditious forum to
resolve disputes. Federal agencies should resolve disputes at the
lowest possible staff level and in a consensual manner whenever
possible.
(b) Except as required in 25 CFR part 900 and part 1000, tribes
operating under a self-determination contract or self-governance
agreement are entitled to use dispute resolution techniques prescribed
in:
(1) The ADR Act, 5 U.S.C. 571-583;
(2) The Contract Disputes Act, 41 U.S.C. 601-613; and
(3) The Indian Self-Determination and Education Assistance Act and
the implementing regulations (including for non-construction the
mediation and alternative dispute resolution options listed in 25
U.S.C. 4501 (model contract section (b)(12)).
Sec. 170.935 How does a direct service tribe begin the alternative
dispute resolution process?
(a) To begin the ADR process, a direct service tribe must write to
the BIA Regional Director or the Chief of BIA Division of
Transportation. The letter must:
(1) Ask to begin one of the alternative dispute resolution (ADR)
procedures in the Administrative Dispute Resolution Act of 1996, 5
U.S.C. 571-583 (ADR Act); and
(2) Explain the factual and legal basis for the dispute.
(b) ADR proceedings will be governed by procedures in the ADR Act
and the implementing regulations.
Other Miscellaneous Provisions
Sec. 170.941 May tribes become involved in transportation research?
Yes. Tribes may:
(a) Participate in Transportation Research Board meetings,
committees, and workshops sponsored by the National Science Foundation;
(b) Participate in and coordinate the development of tribal and IRR
transportation research needs;
(c) Submit transportation research proposals to States, FHWA,
AASHTO, and FTA;
(d) Prepare and include transportation research proposals in their
IRRTIPS;
(e) Access Transportation Research Information System Network
(TRISNET) database; and
(f) Participate in transportation research activities under
Intergovernmental Personnel Act agreements.
Sec. 170.942 Can a tribe use Federal funds for transportation
services for a tribe's Welfare-to-Work, Temporary Assistance to Needy
Families, and other quality-of-life improvement programs?
(a) A tribe can use IRR Program funds:
(1) To coordinate transportation-related activities to help provide
access to jobs and make education, training, childcare, healthcare, and
other services more accessible to tribal members; and
(2) As the matching share for other Federal, State, and local
mobility programs
(b) To the extent authorized by law additional grants and program
funds are available for the purposes in paragraph (a)(1) of this
section from other programs administered by the Departments of
Transportation, Health and Human Services, and Labor.
(c) Tribes should also apply for Federal and State public
transportation and personal mobility program grants and funds.
[FR Doc. 04-15928 Filed 7-16-04; 8:45 am]
BILLING CODE 4310-LH-P