[Federal Register Volume 59, Number 57 (Thursday, March 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6876]


[[Page Unknown]]

[Federal Register: March 24, 1994]


_______________________________________________________________________

Part III





Department of the Interior





_______________________________________________________________________



Bureau of Indian Affairs



_______________________________________________________________________



25 CFR Part 170




Roads of the Bureau of Indian Affairs To Be Administered in Conjunction 
With the Federal Highway Administration; Proposed Rule
DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 170

RIN 1076-ABO5

 
Roads of the Bureau of Indian Affairs To Be Administered in 
Conjunction With the Federal Highway Administration

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Indian Affairs is proposing to revise its 
regulations on the administration of its roads. These proposed changes 
are necessary because of new procedures and methods, the adoption of 
the Federal Lands Highways Program, and other events since the last 
revision. The purpose of this revision is to reflect the current Bureau 
of Indian Affairs (BIA) and Federal Highway Administration (FHWA) 
policies for the road systems on Indian Reservations; to ensure that 
funds are made available from the Highway Trust Fund (HTF) for 
construction projects on Indian Reservations Roads (IRR) in accordance 
with the relative needs of the reservations; and to implement aspects 
of tribal self-determination.

DATES: Comments must be received on or before May 23, 1994.

ADDRESSES: Send written and signed comments to Richard B. Geiger; 
Chief, Division of Transportation; Bureau of Indian Affairs; 1849 C 
Street, NW.; Mail Stop 4058 MIB; Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Richard B. Geiger, Chief, Division of 
Transportation, Bureau of Indian Affairs. Telephone number (202) 208-
4359. Office hours are from 7:45 a.m. to 4:15 p.m., EST, Monday through 
Friday, except for legal holidays.

SUPPLEMENTARY INFORMATION: The Bureau of Indian Affairs is proposing 
this revision to incorporate the requirements and procedures of the 
Federal Lands Highways Program, 23 U.S.C. 202 and 204, and to reflect 
the policies of the FHWA for road systems on Indian reservations. The 
incorporation of these requirements will ensure that funds from the HTF 
are available for construction projects on IRR according to the needs 
of the reservation as prioritized by the affected Indian Tribes.
    A substantial backlog of needed road construction serving Indian 
reservations exists making the establishment of project priorities a 
necessity. The requirements of the Intermodal Surface Transportation 
Efficiency Act of 1991 (ISTEA), Public Law 102-240, 105 Stat. 1914 
(December 18, 1991) and the policy of Indian Self-Determination, 
mandate that consultation procedures with Tribal Governments to 
determine these priorities should be established, subject to BIA 
approval of the expenditure of Federal Funds.
    Procedures shall be followed and periodically revised to ensure 
that the opportunity exists for the various Indian reservations to 
receive a fair and equitable share of funds from the HTF for 
construction projects on Indian reservation roads. These projects are 
funded according to their relative needs and to meet the legislative 
requirements established which affect Indian reservations.

Substantive Changes Proposed

    25 CFR 170.2 Definitions. This section would be revised to include 
reconstruction projects within the definition of ``construction'' and 
new definitions for ``public road'' and ``BIA road system.''
    25 CFR 170.3 Federal Lands Highways Program. This revised section 
would describe programs established by section 126(e) of the Surface 
Transportation Assistance Act of 1982, Pub. L. 97-424, 96 Stat. 2115, 
and the ISTEA.
    25 CFR 170.5, formerly Right-of-way, is renumbered to 170.14. This 
section is retitled Federal-Aid Highway Program and now describes the 
IRR as authorized by that program.
    25 CFR 170.6, formerly Maintenance of Indian Roads, is renumbered 
to 170.19. This section is retitled Road Inventory and Needs Study.
    25 CFR 170.7, formerly Cooperation with States, is changed to 
include tribes and renumbered to 170.3(b). This new section now 
describes the transportation planning process and is titled, 
Transportation Planning. This section also includes tourism and 
recreational travel that benefits recreational development.
    25 CFR 170.8, formerly Use of Roads, is renumbered to 170.17. This 
new section describes priority selection for road construction and is 
titled Selection of Road Construction Priorities.
    25 CFR 170.9, formerly Roadless and Wild Areas, is titled Annual 
Program Approval and 170.41 is the new section for Roadless and Wild 
Areas.
    25 CFR 170.10 through 170.19, Public Hearings on Road Projects, 
have been renumbered to 170.30 through 170.39. Sections 170.10, 170.11, 
170.12 and 170.13 now are titled respectively Allocations, Availability 
of Funds, Program Certification and Program Analysis.
    25 CFR 170.14 Right-of-way, has been changed to include tribal 
consultation in all right-of-way transfers.
    25 CFR 170.18 Equipment Pool Operations, describes a new section 
and includes new language for operating an Equipment Pool.
    25 CFR 170.20 Pedestrian and Bicycle Facilities, describes a new 
section and includes new language pursuant to section 1033 of the 
ISTEA.
    25 CFR 170.21 Emergency Relief Program, describes a new section and 
includes language for operations under the Emergency Relief Program.
    25 CFR 170.22 Bridges, describes a new section and includes the 
provisions of the ISTEA for Indian reservation bridges pursuant to 23 
U.S.C. 144.
    25 CFR 170.23 Airports, has been added to describe eligible work on 
airports.
    25 CFR 170.24 Pub. L. 93-638 Contracts, Road Maintenance and 
Construction Contracts, has been added to describe BIA responsibilities 
under Public Law 93-638, the Indian Self-Determination and Education 
Assistance Act, as amended.
    25 CFR 170.27 Programs under Education and Training, has been added 
to describe the eligible programs to tribes under this provision.

Minor Changes Proposed

    Technical changes are made for clarity; to renumber to accommodate 
new sections; to divide the text into two subparts; and to conform to 
the substantive changes.
    The policy of the Department of the Interior (DOI) is to afford the 
public an opportunity to participate in the rulemaking process to the 
greatest extent practical. Accordingly, interested persons may submit 
written comments, suggestions, or objections regarding the proposed 
rule, to the locations identified in the Addresses section of this 
preamble.
    The primary author of this document is: Richard B. Geiger, Chief, 
Division of Transportation, Central Office, Bureau of Indian Affairs, 
telephone number: (202) 208-4359.
    This rule is not a significant rule under Executive Order 12866 
and, thus, will not be reviewed by the Office of Management and Budget. 
This rule does not have a significant economic effect on a substantial 
number of small entities under the criteria established by the 
Regulatory Flexibility Act and does not constitute a major Federal 
action significantly affecting the quality of the human environment as 
defined in the National Environmental Policy Act of 1969. This rule 
does not contain information collection requirements as defined by 44 
U.S.C. 3501 et seq. which require the approval of the Office of 
Management and Budget. The Department has certified to the Office of 
Management and Budget that these proposed regulations meet the 
applicable standards provided in Sections 2(a) and 2(b) (2) of 
Executive Order 12778. In accordance with Executive Order 12630, the 
Department has determined that this rule does not have significant 
takings implications and that this rule does not have significant 
federalism effects under Executive Order 12612.

List of Subjects in 25 CFR Part 170 Highways and Roads, Indians-
lands

    For the reasons set out in the preamble, part 170 of title 25, 
Chapter I of the Code of Federal Regulations is proposed to be revised 
as set forth below.

PART 170--ROADS OF THE BUREAU OF INDIAN AFFAIRS TO BE ADMINISTERED 
IN CONJUNCTION WITH THE FEDERAL HIGHWAY ADMINISTRATION

Subpart A--Construction and Maintenance of Roads

Sec.
170.1  Purpose.
170.2  Definitions.
170.3  Federal Lands Highways Programs (23 U.S.C. 202 and 204).
170.4  Approval of fund distribution.
170.5  Federal-aid highways.
170.6  Road Inventory and Needs Study.
170.7  Transportation planning.
170.8  Selection of road construction project priorities.
170.9  Annual program approval.
170.10  Allocations.
170.11  Availability of funds.
170.12  Program certification.
170.13  Program analysis.
170.14  Right-of-way.
170.15  Road design.
170.16  Method of construction.
170.17  Use of roads.
170.18  Equipment pool operations.
170.19  Maintenance of BIA roads system.
170.20  Pedestrian and bicycle facilities.
170.21  Emergency Relief Program.
170.22  Bridges.
170.23  Airports.
170.24  Public Law 93-638 road maintenance and construction 
contracts.
170.25  Program requirements for road maintenance.
170.26  Program requirements for road construction.
170.27  Education and training.

Subpart B--Public Hearings on Road Projects

Sec.
170.30  Purpose and objectives.
170.31  Criteria.
170.32  Need for public hearing determined.
170.33  Notice of road construction projects in lieu of hearing.
170.34  Notice of public hearing.
170.35  Record of hearing proceedings.
170.36  Conducting the public hearing.
170.37  Written statements.
170.38  Hearing statement.
170.39  Appeals.
170.40  Information collection requirements.
170.41  Roadless and wild areas.

    Authority: 36 Stat. 861; 49 Stat. 1521, as amended; 78 Stat. 
241, 253, 257; 45 Stat. 750; 25 U.S.C. 47, 318a, 318b; 42 U.S.C. 
2000e(b), 2000e-2(i); 23 U.S.C. 101(a), 116, 117, 118, 125, 134, 
135, 144, 202, 203, 204, 217, 326 and 402.

Subpart A--Construction and Maintenance of Roads


Sec. 170.1  Purpose.

    The purpose of this part is to set forth regulations to govern the 
planning, design, construction, maintenance, and general administration 
of Indian reservation roads. In compliance with 23 U.S.C. 202, these 
regulations have been jointly developed and approved by the Assistant 
Secretary--Indian Affairs (DOI) and the Federal Highway Administrator, 
Department of Transportation. Any FHWA/BIA interagency agreements 
relative to the administration of the IRR program shall be developed 
and approved after allowing tribal governments the opportunity to 
review and comment.


Sec. 170.2  Definitions.

    BIA Road System means those existing and proposed IRR for which the 
Bureau of Indian Affairs (BIA) owns or plans to obtain legal right-of-
way. This includes only roads for which the BIA has the primary 
responsibility to construct, improve and maintain, and for which any 
changes to this system shall be supported by a tribal resolution.
    Construction means engineering, supervising, inspecting, actual 
building, and all expenses incidental to the construction and 
improvement of roads and bridges. Construction includes the elimination 
of roadway hazards, the acquisition of right-of-way, reconstruction, 
resurfacing, restoration, rehabilitation, sealing of the roadway, and 
traffic flow control or improvement. Also included are designed 
pavement overlays that add to the structural value and design life of 
the pavement, or provide identified safety skid resistance, and double 
bituminous surface and chip seals that are part of predefined stage 
construction or form the final surface on low volume roads.
    Force account means the use of BIA personnel to perform 
construction and maintenance on IRR. Program and project documentation 
is completed under these operations in accordance with specifications 
and applicable directives from the Bureau of Indian Affairs Manual 
(BIAM) for each project.
    Indian Reservation Roads (IRR) ``means public roads that are 
located within or provide access to an Indian reservation or Indian 
trust land or restricted Indian land which is not subject to fee title 
alienation without the approval of the Federal Government or Indian and 
Alaska Native villages, groups or communities in which the majority of 
the residents are Indians or Alaskan Natives, whom the Secretary has 
determined are eligible for services generally available to Indians 
under Federal laws specifically applicable to Indians.'' (23 U.S.C. 
101(a).) Roads in the BIA Road System are included in the IRR system.
    Maintenance means the act of preserving the entire roadway, 
including the surface, shoulder, roadsides, drainages, and structures, 
preserving the road as nearly as practical to the original as-built 
condition, and providing snow and ice removal, vegetation control, 
traffic control devices, and other services for the safety and 
convenience of the user. Maintenance may also include minor 
improvements which could not be done efficiently with road construction 
funds, or the removal of safety hazards. Maintenance does not include 
constructing roads to a substantially higher standard.
    Public road means any road or street under the jurisdiction of and 
maintained by a public authority and open to public travel. (23 U.S.C. 
101(a).)
    Secretary means the Secretary of the Department of the Interior, or 
a designated representative, who will usually be the Assistant 
Secretary--Indian Affairs or a Deputy to the Commissioner of Indian 
Affairs.
    State means one of the 50 United States, a Territory, or a 
political subdivision of a State or Territory. For purposes of 23 
U.S.C. 402--Highway Safety Programs and for other programs in the 
future, and with the approval of the Secretary of Transportation, State 
may include the BIA; Governor of a State may include the Secretary of 
the Interior; and a political subdivision of a State may include the 
tribal government on an Indian Reservation.
    Superintendent means the Agency Superintendent at all locations. 
The Area Director or a designated representative may appear for the 
Superintendent at public hearings on arterial roads which cross Agency 
boundaries of jurisdiction.


Sec. 170.3   Federal Lands Highways Programs (23 U.S.C. 202 and 204).

    (a) The coordinated Federal Lands Highways Program (FLHP) consists 
of the Forest Highways, Public Lands Highways, Park Roads, Parkways and 
Indian Reservation Roads as defined in 23 U.S.C. 101. The purpose is to 
treat all Federal Roads which are public roads under the same uniform 
policies as roads on the Federal-Aid Systems. (23 U.S.C. 204).
    (b) BIA shall coordinate management of IRR construction with the 
programs of the National Park Service, U.S. Forest Service, and the 
Public Lands Highways program of the FHWA. BIA management policies 
shall conform to policies for roads which are on the Federal-aid 
highways, including application of the FAR and Government Accounting 
Standards.
    (c) In planning and constructing IRR the BIA may enter into 
contracts with other Federal agencies, States, counties, cities, or 
tribal governments. In these contracts, the BIA or one of the other 
governmental agencies may be the lead agency, accepting contributions 
from the other agencies involved. When the BIA is the lead agency in a 
cooperative project with a State, county, local subdivision, or tribal 
government, reimbursement authority shall be issued to the BIA for 
crediting the funds received to the appropriation available for IRR 
construction projects. All projects shall be developed in accordance 
with the requirements of the National Environmental Policy Act, the 
National Historic Preservation Act, and other Federal requirements. 
These projects are included as part of the continuing cooperative and 
comprehensive planning process used to develop Statewide transportation 
improvement programs by States. The projects will also be part of 
approved long-range and short-range plans in accordance with 23 U.S.C. 
134, 135(e)(f) and 204(a).
    (d) Indian labor shall be used at the maximum practical level on 
projects using IRR construction funds or road maintenance funds. Since 
ceilings on Federal employment do not apply to construction and 
improvement of Indian reservation roads, staffing and overtime 
decisions shall be based upon project requirements, efficiency, the 
availability of Indian labor, and other governmental costs including 
unemployment compensation and welfare. The BIA shall assist the FHWA 
and the States to apply Indian preference to Federal-aid highway 
projects on or near Indian reservations.
    (e) The BIA shall cooperate with the FHWA in developing procedures 
to provide the information needed by the Secretary of Transportation in 
making the determination that a proposed obligation of IRR funds on a 
Federal-aid project is supplemental to, and not in lieu of, the 
obligation of a fair and equitable share of funds apportioned to the 
State pursuant to 23 U.S.C. 104. The Secretary may enter into an 
agreement with a State or subdivision of a State for supplementary 
funding in the construction and maintenance of IRR. At locations where 
road projects serve non-Indian land as well as Indian land, State 
participation shall be requested. Funds for IRR may be used in 
conjunction with Federal-aid funds on State Federal-aid highway 
projects, including projects in the Highway Bridge Replacement and 
Rehabilitation Program (HBRRP). Pursuant to 23 U.S.C. 144(g)(4), not 
less than one percent of the apportioned HBRRP funds is set aside in 
each State that has an Indian Reservation, as defined in 25 CFR 170.2, 
within its boundaries for projects to replace, rehabilitate, paint, or 
apply magnesium acetate to IRR bridges. The IRR funds can also be used 
for the required 20 percent State match requirements. (23 U.S.C. 144).
    (f) Subject to availability of qualified Indian contractors, IRR 
construction contracts shall be advertised for award to the lowest 
qualified bidder under the provisions of the Buy Indian Act of June 25, 
1910 (36 Stat. 891). Subject to availability of qualified Indian 
subcontractors, prime contractors shall be required to give preference 
to Indian subcontractors on IRR construction contracts. A good faith 
effort to locate qualified Indian contractors and subcontractors shall 
be required. Incentives may be provided for training Indian 
subcontractors. Contracts with tribal governments under Public Law 93-
638 shall be written, negotiated, and monitored to ensure meeting the 
requirements of 23 U.S.C.
    (g) On cooperative projects where Federal aid and IRR funds are 
used, guidelines will be developed to include procedures for the BIA 
and State to negotiate the use of the Buy Indian Act (36 Stat. 891) 
based on the percentage of fund contribution for the project.
    (h) IRR funds can also be used on tribally-owned vocational post-
secondary school road construction projects pursuant to section 1032(d) 
of the ISTEA. For the purpose of this part, roads constructed under 
section 1032(d) are public roads.
    (i) The BIA, in cooperation with the FHWA and the states, will 
develop procedures for implementing management systems for bridge, 
pavement, and safety on Indian reservation roads (23 U.S.C. 204(a)).


Sec. 170.4   Approval of fund distribution.

    (a) The Secretary, with the concurrence of the Secretary of 
Transportation, shall approve the distribution of IRR construction 
funds.
    (b) The Secretary shall approve the distribution of maintenance 
funds for Indian road needs. This type of approval does not require the 
concurrence of the Secretary of Transportation.
    (c) Indian tribal governments shall be consulted concerning the 
distribution of Indian road construction and maintenance funds.


Sec. 170.5   Federal-aid highways.

    (a) Federal-aid highways, containing rural major collector or 
higher functional classification routes, are designated by each State 
highway department in cooperation with local officials, and are subject 
to the approval of the Secretary of Transportation. The BIA will assist 
tribal governments as they participate in the State-Tribal 
responsibility of designating Federal-aid highways which serve Indian 
lands.
    (b) Some public roads on Indian Reservations are eligible for 
funding from the Federal-aid program through the States and counties. 
Pursuant to 23 U.S.C. 204(c), IRR funds shall be supplementary to, and 
not in lieu of, the obligation of funds apportioned to an IRR project 
from the Federal-aid program. The BIA will assist tribal governments as 
they participate with local governments in the development of programs 
of construction projects and maintenance of those roads which are on 
Indian Reservations.


Sec. 170.6   Road Inventory and Needs Study.

    (a) The BIA shall maintain an inventory of identified Indian 
Reservation Roads as defined in Sec. 170.2 of this subpart. The 
inventory shall be maintained to provide: (1) Appropriate reports 
required by 23 CFR 460.3(c), 23 CFR 470.107(b) and (c), or by 
Congressional request.
    (2) Long-range planning estimates of construction costs and annual 
maintenance needs. This construction data will be provided to FHWA as 
part of the annual Transportation Improvement Program (TIP) 
requirements of 23 U.S.C. 135.
    (b) An overall needs analysis will be an ongoing function by the 
BIA to provide appropriate information necessary to develop a relative 
needs data base. This data will be used in the budgetary process and as 
support for any needs study to: (1) Make reports to Congress from time 
to time or as required.
    (2) Determine the costs for all identified Indian Reservation Roads 
improvements.
    (c) The BIA shall provide assistance to tribal governments in 
developing their administrative capabilities for managing their 
reservation transportation systems and economic development plans.


Sec. 170.7  Transportation planning.

    The BIA shall carry out a transportation planning process for IRR 
to support the construction and improvement program similar to 23 
U.S.C. 134, 135, 307, and in accordance with 23 U.S.C. 204 (h) and (j). 
Transportation plans shall be developed using an in-depth and 
comprehensive evaluation of all factors and elements influencing the 
orderly development of transportation systems. Planning will establish 
a definitive system for determining the needs for both new and improved 
highway facilities commensurate with social, environmental, and 
economic conditions, and shall provide the information needed for 
developing future transportation programs and distribution of IRR funds 
in accordance with the relative needs of the various Indian 
Reservations and tribal priorities. Transportation planning shall 
consider the information contained in management systems for highway 
pavement, bridges, and safety. BIA's transportation planning process 
shall be reviewed and deemed adequate by FHWA.


Sec. 170.8  Selection of road construction project priorities.

    (a) The Superintendent shall inform the appropriate local tribal 
officials of all financial and technical information relating to the 
IRR program and alternatives of proposed road developments, arranging 
for technical assistance from other offices as required. The 
Superintendent shall recommend to the tribe those proposed road 
projects having the greatest need as determined by a comprehensive 
transportation analysis. Tribes shall develop a prioritized list of 
projects. Where more than one tribe is involved, the Superintendent 
shall make special efforts to ensure that all tribes are informed and 
given an opportunity to participate in priority decisions. Where the 
Superintendent and the tribe or tribes cannot agree on priorities, the 
Superintendent shall forward the proposals for review and decision to 
the Area Office.
    (b) The Assistant Secretary--Indian Affairs may establish 
priorities for programs of national scope and for administrative 
purposes with the concurrence of the Secretary of Transportation and in 
consultation with national Indian organizations. Such national 
priorities may include safety, hazard elimination, bridge programs, and 
economic development.


Sec. 170.9  Annual program approval.

    (a) The Secretary and the Secretary of Transportation, or an 
authorized representative, shall approve all projects in the IRR 
construction program before any expenditures are made. An annual 
transportation improvement program shall be developed for approval of 
the Secretary and the Secretary of Transportation or an authorized 
representative, pursuant to 23 U.S.C. 135.
    (b) Since IRR are defined in 23 U.S.C. 101 as public roads, no 
funds appropriated for IRR may be spent for the construction, 
maintenance, or improvement of roads which are not public roads, except 
in emergencies hazardous to life or property, which are subsequently 
reimbursed back to the IRR program, or except as noted in section 
1032(d) of the ISTEA.


Sec. 170.10  Allocations.

    After October 1 of each fiscal year, the Secretary of 
Transportation shall allocate the sums appropriated for such fiscal 
year as provided in 23 U.S.C. 202. Funds for IRR construction projects 
shall be allocated according to the relative needs of the various 
reservations as jointly identified by the Secretary and the Secretary 
of Transportation. Allocations may be modified during the year to 
ensure maximum benefit to the Indian people. The Secretary will 
identify the amount of IRR funds allocated to each BIA Area Office and 
how this amount was determined. The Secretary also will document how 
each BIA Area Office distributes these funds.


Sec. 170.11  Availability of funds.

    Funds authorized for IRR shall be available for contract or Force 
Account construction upon distribution, or on October 1 of the fiscal 
year for which authorized if no distribution is required. Any amount of 
contract authority remaining unobligated at the end of a fiscal year 
that is greater than the funds authorized during that fiscal year and 
the prior three (3) fiscal years combined shall be considered lapsed 
and will be withdrawn. The Secretary has authority to incur 
obligations, approve projects, and enter into contracts under such 
authorizations, and the action in doing so is deemed a contractual 
obligation of the United States for the payment of the cost thereof, 
and such funds shall be deemed to have been expended when so obligated 
(23 U.S.C. 203).


Sec. 170.12  Program certification.

    (a) The Secretary of Transportation may discharge all 
responsibilities, or any part of them, pursuant to 23 U.S.C. 117 
relative to projects in the IRR program, upon the request of the BIA, 
by accepting a certification by the BIA of its performance of such 
responsibilities. The acceptance of the BIA Certification by the 
Secretary of Transportation acknowledges that the BIA road construction 
program procedures shall be carried out in a manner which will 
accomplish the objectives of title 23, U.S.C. The certification may 
include all or part of the procedures, and may involve all or part of 
the field offices, of BIA. The Secretary of Transportation may rescind 
the BIA Certification of Performance of Responsibilities under 23 
U.S.C. at any time considered necessary.
    (b) The BIA will notify the Secretary of Transportation upon the 
completion of each construction project. The Secretary of 
Transportation shall require an adequate report of the estimated and 
actual cost of construction, as well as such other information as is 
determined necessary. All final inspections on each project will be 
conducted in accordance with procedures jointly established by the 
Secretary and the Secretary of Transportation.


Sec. 170.13  Program analysis.

    To ensure proper implementation of title 23 U.S.C. requirements in 
the IRR programs, the BIA shall conduct reviews at the national, Area, 
and tribal levels. These reviews shall evaluate policy, procedures, 
operations, and service delivery and shall make recommendations for 
improvements and corrective actions in compliance with statutes, 
manuals, and policy regarding road construction and road maintenance. 
The BIA shall also analyze workload, adequacy of staffing, efficiency 
of operations, and program effectiveness at each level and report to 
the Assistant Secretary--Indian Affairs. A review of support services 
to road programs shall be performed. The analysis shall assess the 
efficiency of program operations; effectiveness of organizational 
structures and relationships and of operating systems and procedures; 
and work force requirements and utilization. It shall assist management 
in the establishment of program objectives and provide a mechanism to 
develop performance measurements; to ensure accountability for the 
Highway Trust Funds; and to promote the efficiency, economy, and 
effectiveness of roads programs.


Sec. 170.14  Right-of-way.

    (a) The procedures for obtaining permission to survey or to grant 
any necessary right-of-way are governed by 25 CFR part 169 of this 
chapter. Prior to any work being done for the construction of road 
projects, the Superintendent shall obtain the written consent of the 
Indian and non-Indian landowners. Where an Indian has an interest in 
tribal land, consent shall be obtained in accordance with the policy of 
the Indian tribe. Right-of-way easements are to be documented on forms 
approved by the Secretary. All right-of-way actions shall be in 
accordance with the requirement of the Uniform Relocation Assistance 
and Real Property Acquisition Policies Act (42 U.S.C. 4601 et seq. as 
amended), and 49 CFR part 24.
    (b) Prior to construction, right-of-way easements for the project 
shall be obtained in favor of the public agency that will be 
responsible for maintenance and reconstruction of the route. When that 
agency is the BIA, easements shall be in favor of the United States, 
its successors and assigns, with the right to construct, maintain, and 
repair improvements thereon and thereover, for such purposes; and with 
the further right in the United States, its successors and assigns, to 
transfer the right-of-way easements by assignment, grant, or otherwise.
    (c) No right-of-way shall be transferred without consultation with 
the tribal government.


Sec. 170.15  Road design.

    The BIA is responsible for collecting reliable data, designing safe 
and economical roads, and developing adequate construction plans, 
specifications, and estimates. General guidelines will be the latest 
edition of the relevant American Association of State Highway and 
Transportation Officials (AASHTO) publications, ``A Policy on Geometric 
Design of Highways and Streets,'' and the ``Roadside Design Guide''; 
and the FHWA publications, ``Standard Specifications for Construction 
of Roads and Bridges on Federal Highway Projects'' (or approved State 
specifications) and the ``Manual on Uniform Traffic Control Devices.''


Sec. 170.16  Method of construction.

    Generally, the method of construction shall be by contract awarded 
by competitive bidding. Construction may also be performed by Force 
Account, with Federal employees, or by entering into construction 
contracts with governmental agencies or tribes. The method of 
construction for the IRR system shall be determined in consultation 
with the tribes. Several factors shall be considered, including cost 
effectiveness, the employment and training of Indians, effect on the 
local economy, public interest findings, available equipment, available 
Indian contractors, and social and economic development plans of the 
tribe. (25 CFR 170.3(c) and 23 U.S.C. 204(e)).


Sec. 170.17  Use of roads.

    (a) Free public use is required on roads eligible for construction 
and maintenance with Federal funds under this part. The Superintendent 
may restrict the use of roads or close them to public use when required 
for public safety, fire prevention or suppression, fish or game 
protection, or prevention of damage to unstable roadbeds.
    (b) The BIA shall conduct engineering and traffic analysis in 
accordance with established traffic engineering practices to determine 
the necessary maximum speed limit, maximum vehicular size and weight 
limit, and traffic control devices. The BIA shall, in cooperation with 
tribes and local government officials, erect, maintain, and enforce 
compliance with the needed regulatory signs and pavement markings in 
accordance with the ``Manual on Uniform Traffic Control Devices 
(MUTCD).''


Sec. 170.18  Equipment pool operations.

    (a) BIA Equipment Pools operating on a reimbursable basis may rent 
BIA-owned equipment to approved IRR Force Account projects funded under 
contract authority from the Highway Trust Fund, or other authorized 
Federal programs. The equipment pool manager must obtain reimbursement 
authority to retain and re-obligate income for costs incurred. The 
accounting procedures and methods of determining reimbursement costs 
shall be uniformly and equitably applied to all projects and activities 
irrespective of source of funds in accordance with the provisions of 23 
CFR 140.715.
    (b) Equipment rent shall be collected from approved projects and 
activities for the use of pool equipment. The established equipment 
rental rates shall be limited to the recovery of actual acquisition 
costs, including equipment replacement costs, equipment pool overhead, 
and actual operating cost. (See 23 CFR part 140 (Reimbursement) and 48 
CFR part 31 (Contract Cost Principles and Procedures)). Examples of 
eligible costs for reimbursement are listed in the Office of Management 
and Budget (OMB) Circular A-87, General Accounting Office (GAO) TS2-24; 
and the Federal Highway Administration Technical Advisory T4540.l.


Sec. 170.19  Maintenance of BIA system roads.

    (a) The BIA shall maintain, or cause to be maintained, all roads on 
the approved Bureau of Indian Affairs Road System. The BIA shall also 
maintain other public roads in accordance with agreements with the 
public agencies responsible for those roads.
    (b) The Superintendent shall monitor the maintenance of all roads 
meeting the definition of IRR to assure that Indians are receiving a 
fair and equitable share of road maintenance services provided by funds 
derived from highway user taxes. Where problems are identified, the 
Superintendent shall coordinate a meeting of appropriate tribal 
representatives and other government officials to discuss methods of 
correcting the problems. Where these problems cannot be resolved 
locally, the Superintendent shall refer this matter to the Area 
Director. The Area Director shall attempt to resolve the problems with 
the assistance of the FHWA and the State Officials. Any problems that 
cannot be resolved at the Area level shall be referred to the Assistant 
Secretary--Indian Affairs.
    (c) Any jurisdiction failing to maintain roads constructed with 
Highway Trust Funds shall be ineligible for further Highway Trust 
Funded construction projects (23 U.S.C. 116).


Sec. 170.20  Pedestrian and bicycle facilities.

    (a) For purposes of transportation, safety, and energy 
conservation, and for encouraging multiple use of road rights-of- way, 
road construction funds may be used to construct pedestrian and bicycle 
facilities on road rights-of-way, within limitations established by 23 
U.S.C. 217.
    (b) For transportation and not specifically for recreational 
purposes, bicycle facilities may be constructed with road construction 
funds at the discretion of the BIA on separate rights-of-way (23 U.S.C. 
217 (b) and (c)).


Sec. 170.21  Emergency Relief Program.

    Any natural disaster over a widespread area or catastrophic failure 
which causes serious (more than heavy maintenance) damage to IRR, may 
be cause for eligibility for reimbursement under the Emergency Relief 
Program of 23 U.S.C. 125 and 23 CFR part 668. To qualify, the 
occurrence should be declared a disaster by the President of the United 
States and shall have a positive finding determination made by the 
Federal Highway Administration. If the road repairs in an area may be 
considered for authorization under the Emergency Relief Program, 
records and photographs of the damage sites and of initial repairs and 
closures to assure public safety shall be kept by the BIA for possible 
reimbursement under this program. Those initial repairs may, as an 
emergency measure, be charged to any available program under the 
control of the line official. Reimbursement will be made from Emergency 
Relief Funds after approval, or from road maintenance funds if approval 
is denied. Careful analysis of program fund usage shall be made 
considering the temporary charges made to a program whose authority may 
terminate with the fiscal year. (Specific procedures to be followed in 
the Emergency Relief Program are contained in 23 CFR part 668.)


Sec. 170.22  Bridges.

    (a) The existence of a flood plain encroachment by a proposed 
structure shall be determined by technical study. An analysis of the 
hydrology and the hydraulics of the site shall be performed in 
accordance with established Executive Order 11988 as implemented in 23 
CFR 650.111.
    (b) All existing bridges on the BIA road system shall be inspected 
periodically for structural condition and functional adequacy, in 
accordance with 23 U.S.C. 144 and 151. These field inspections shall be 
conducted in accordance with the National Bridge Inspection Standards. 
The following measures shall be taken in accordance with 
recommendations of the inspecting engineer in the field inspection 
report, as amended by a technical review by the BIA Division of 
Transportation and the Area Road Engineer, in order to protect the 
safety of the travelling public:
    (1) The erection and maintenance of load limit and safety warning 
signs and other maintenance work;
    (2) The construction or installation of safety enhancement 
appurtenances such as traffic delineators, bridge railing and approach 
guardrailing; and
    (3) The rehabilitation or replacement of deficient structures. (23 
U.S.C. 144 (g)(4)).
    (c) Current data obtained from the bridge inspections shall be 
maintained in a computer inventory file. The inventory data shall be 
used to produce a biennial bridge inventory report and an annual bridge 
sufficiency rating report.
    (d) The National Bridge Inspection Standards require each State to 
maintain an inventory of all bridge structures subject to the 
Standards, which includes all bridges on public roads. Therefore, the 
required inventory and inspection data for all IRR bridges must be 
submitted to the State for inclusion in the State's bridge inventory 
file. The data shall include all items contained in the current 
``Recording and Coding Guide for the Structure Inventory and Appraisal 
of the Nation's Bridges.''
    (e) Bridges that are identified on the bridge sufficiency rating 
report as being deficient shall be prioritized and programmed for 
closure, maintenance, rehabilitation, or replacement. Correction of the 
deficiency shall be accomplished expeditiously after the deficiency is 
first identified.


Sec. 170.23  Airports.

    Airports, including heliports, which provide service to Indian 
reservations shall not be constructed or improved with appropriated 
road construction or road maintenance funds. Public airports and 
heliports may be maintained with road maintenance funds in accordance 
with appropriations and tribal priorities.


Sec. 170.24  Public Law 93-638 road maintenance and construction 
contracts.

    To assist tribes in compliance with the requirements of Subchapter 
M--Indian Self-Determination, the BIA shall develop guidelines and 
model contracts for road construction and maintenance, modify those 
contracts as necessary for local conditions, and provide technical 
assistance to the tribes in developing capability to meet contract 
conditions, maintain adequate records, and prepare required reports.


Sec. 170.25  Program requirements for road maintenance.

    (a) The IRR Maintenance program provides for maintenance of paved 
roads, graveled roads and earth surface roads. Funds distribution shall 
be provided at all reservations which have a road maintenance program, 
in accordance with uniform BIA criteria.
    (b) Road maintenance shall be completed in accordance with industry 
standards for planning, scheduling, and accomplishments, and with the 
guidelines in 23 CFR 635.505. After emergency maintenance, priority 
shall be for roads on the BIA system.
    (c) Annual data on road maintenance needs accomplishments and 
expenditures for the annual nationwide road maintenance status report 
and for budgeting purposes shall be provided.
    (d) The Area Director's approval is required for plans, 
specifications, and estimates (PS&E) for pavement sealing projects 
using Highway Trust Funds, 23 U.S.C. 204(c), and specific maintenance 
agreements, contracts or other applicable documents. The Area Director 
shall monitor road maintenance contracts as necessary to fulfill the 
Secretary's trust responsibilities, ensure contract compliance, and the 
adequacy of deliverables.


Sec. 170.26  Program requirements for road construction.

    (a) Projects for IRR construction shall be ``treated under the same 
uniform policies as roads which are on the Federal-aid systems,'' in 
accordance with 23 U.S.C. 204, Public Law 97-424, and subsequent 
Highway Acts. Project priorities are selected by the tribes with the 
concurrence of the BIA and the FHWA.
    (b) The minimum standard shall be American Association of State 
Highway and Transportation Officials (AASHTO) design standards 
applicable to the planned type of construction; and for construction, 
FHWA's current ``Standard Specification and Construction Manual for 
Construction of Roads and Bridges on Federal Highway Projects.'' State 
Highway Standard Specifications may be substituted when properly 
modified to meet the requirements of Federal construction contracts.
    (c) BIA force account operations, Buy Indian and open market 
contractors, and Tribal Pub. L. 93-638 contractors shall construct the 
IRR project in accordance with the plans and specifications for said 
project.
    (d) Emergencies that endanger life or property or that affect the 
quality of construction shall be reported to the Contracting Officer in 
the most expeditious manner.
    (e) Plans, specifications, and estimates (PS&E) are deliverables 
for IRR design projects.
    (f) Progress reports are required to support requests for payments. 
Reports may be required for annual and final accomplishments and for 
completed and accepted projects, including as-built plans; project 
engineer's diaries; daily inspection reports; testing reports; and all 
supporting data, including automated data processing (ADP) data, 
environmental studies, engineering analysis, design exceptions, and 
approved extra work orders.
    (g) A summary report of employment shall be submitted within 30 
days of the end of each fiscal year for all projects and shall include 
the hours and amounts paid to Indians and all other employees by 
contractor and project.
    (h) Year-end closing statements shall include reports on total 
cumulative obligations and expenditures by project and budget category. 
An annual summary report of all emergency projects shall be provided.


Sec. 170.27  Education and training (23 U.S.C. 326).

    (a) A transportation assistance program is authorized pursuant to 
23 U.S.C. 326. It provides for the Secretary of Transportation to make 
grants and enter into contracts for education and training, technical 
assistance, and related support service that will: (1) Assist rural 
local transportation agencies to develop and expand their expertise in 
road and transportation areas to improve roads and bridges; to enhance 
programs for the movement of passengers and freight; and to deal 
effectively with special road related problems by preparing and 
providing training packages, manuals, guidelines, and technical 
resource materials, and developing a tourism and recreational travel 
technical assistance program;
    (2) Identify, package, and deliver usable highway technology to 
local jurisdictions to assist urban transportation agencies in 
developing and expanding their ability to deal effectively with road 
related problems; and
    (3) Establish, in cooperation with State transportation or highway 
departments and universities: (i) Urban technical assistance program 
centers in States with 2 or more urbanized areas of 50,000 to 1,000,000 
population; and (ii) rural technical assistance program centers.
    (b) Not less than 2 centers under paragraph (a)(3) of this section 
shall be designated to provide transportation assistance that may 
include, but is not necessarily limited to, a ``circuit-rider'' 
program, providing training on intergovernmental transportation 
planning and project selection, and tourism and recreational travel to 
American Indian tribal governments.
    (c) Funds required to carry out the provisions of this section 
shall be taken out of administrative funds deducted pursuant to 23 
U.S.C. 104(a). This includes up to 100 percent for services provided to 
American Indian tribal governments. In addition, the Secretary of the 
Interior may reserve funds from the Bureau of Indian Affairs' 
administrative funds associated with the Indian reservation roads 
program to finance the Indian technical centers authorized pursuant to 
23 U.S.C. 326.

Subpart B--Public Hearings on Road Projects


Sec. 170.30  Purpose and objectives.

    The regulations in this subpart govern the notification and conduct 
of public hearings on BIA road projects in order to promote 
coordination and comprehensive planning of construction activities on 
Indian reservations. The objectives for conducting public hearings on 
proposed road projects are to: (a) Inform interested persons of the 
road proposals that affect them and allow such persons to express their 
views at those stages of the project's development when the flexibility 
to respond to these views still exists; and
    (b) Ensure that road locations and designs are consistent with the 
reservations objectives and with applicable Federal regulations.


Sec. 170.31  Criteria.

    A public hearing shall be held for each project if it: (a) Is a new 
route being constructed;
    (b) Would significantly change the layout or function of connecting 
or related roads or streets;
    (c) Would cause substantial adverse effect on adjacent real 
property; or
    (d) Is expected to be of a controversial nature.


Sec. 170.32  Need for public hearing determined.

    The Superintendent shall call a meeting of representatives from the 
tribe, the BIA, and other appropriate agencies to determine if a public 
hearing is needed for each road project. The determination shall be 
based on the criteria given in Sec. 170.31. More than one public 
hearing may be held for a project if necessary.


Sec. 170.33  Notice of road construction projects in lieu of hearing.

    When no public hearing is scheduled for a road construction 
project, notice of the road construction project shall be given at 
least 90 calendar days before the date construction is scheduled to 
begin. The notice shall give the project name and location, the type of 
improvement planned, the date construction is scheduled to start, and 
the name and address of the office where more information can be 
obtained, and provisions for requesting a hearing within a set time. 
The notice shall be posted or published as determined by the 
Superintendent.


Sec. 170.34  Notice of public hearing.

    Notice shall be given to inform the local public of the scheduled 
hearing. The notice should give the date, time, and place of the 
scheduled hearing; the project location; the proposed work to be done; 
the place where the preliminary plans may be reviewed; and the place 
where more information on the project can be obtained. The notice shall 
be posted or published as determined by the Superintendent. Notice 
shall be given at least 30 calendar days before the scheduled date of 
the public hearing. A second notice of hearing is optional at the 
discretion of the Agency Superintendent.


Sec. 170.35  Record of hearing proceedings.

    A record of the hearing shall be made, which shall include a 
summary of verbal testimony and all written statements that are 
submitted at the hearing or within five (5) working days following the 
hearing.


Sec. 170.36  Conducting the public hearing.

    (a) The Superintendent shall appoint a tribal or BIA official to 
preside at the public hearing and to maintain a free and open 
discussion designed to reach early and amicable resolution of issues.
    (b) The Superintendent shall be responsible for maintaining the 
official record of the hearings and shall make arrangements for 
appropriate officials to be present at the hearing to be responsive to 
questions that may arise.
    (c) The purpose of the hearing and an agenda of items to be 
discussed should be presented at the beginning of the hearing. It shall 
be made clear at the hearing that the tribal government or designated 
roads committee are responsible for setting reservation road priorities 
and for considering public comments and the merits of one road project 
over another. Sufficient maps and project plans will be available at 
the hearing for public review. The hearing audience should be informed 
of the BIA road construction and right-of-way acquisition procedures on 
reservations. If the project will require relocating residences or 
businesses, information on relocation services and authorized payments 
shall be given in accordance with the Uniform Relocation and Real 
Property Acquisition Policies Act, Pub. L. 91-646, 84 Stat. 1894 (42 
U.S.C. 4601 et seq. as amended).


Sec. 170.37  Written statements.

    At the public hearing, written statements may be submitted to the 
presiding official, either in lieu of or in addition to oral 
statements. Written statements also may be submitted to the Agency 
Superintendent during the five working days following the hearing.


Sec. 170.38  Hearing statement.

    The Superintendent shall issue a hearing statement summarizing the 
results of the public hearing and the determination of the further 
action to be taken in connection with the proposed project. The hearing 
statement shall be issued within 20 working days of the date of the 
public hearing. The hearing statement shall be posted at the place 
where the hearing was held, and may be sent to interested persons upon 
request. The hearing statement shall outline procedures whereby the 
determination may be appealed.


Sec. 170.39  Appeals.

    Any determination concerning the proposed road project may be 
appealed in accordance with the procedures set forth in 25 CFR part 2.


Sec. 170.40  Information collection requirements.

    There are no information collection requirements contained in this 
part which require the approval of the Office of Management and Budget 
under 44 U.S.C. 1501.


Sec. 170.41  Roadless and wild areas.

    Roads passable to motor transportation shall not be constructed 
under the regulations in this part within the boundaries of the 
roadless and wild areas established in 25 CFR part 265, chapter 1.

    Approval Date: February 1, 1994.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 94-6876 Filed 3-23-94; 8:45 am]
BILLING CODE 4310-02-P