[Federal Register Volume 67, Number 152 (Wednesday, August 7, 2002)]
[Proposed Rules]
[Pages 51328-51400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18801]



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Part II





Department of the Interior





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Bureau of Indian Affairs



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25 CFR Part 170



Indian Reservation Roads Program; Proposed Rule

  Federal Register / Vol. 67 , No. 152 / Wednesday, August 7, 2002 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 170

[Docket No. FHWA-2002-12229]
RIN 1076-AE17


Indian Reservation Roads Program

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule would establish policies and procedures 
governing the Indian Reservation Roads (IRR) Program. It expands 
transportation activities available to tribes and tribal organizations 
and provides guidance to tribes and tribal organizations for planning, 
designing, constructing, and maintaining transportation facilities. BIA 
also proposes a Tribal Transportation Allocation Methodology that 
includes a Relative Need Distribution Factor for allocating IRR Program 
funds based on the relative needs of Indian tribes, and reservation or 
tribal communities, for transportation assistance; and the relative 
administrative capacities of, and challenges faced by, various Indian 
tribes, including the cost of road construction in each Bureau of 
Indian Affairs area, geographic isolation, and difficulty in 
maintaining all-weather access to employment, commerce, health, safety, 
and educational resources.

DATES: Written comments are due on or before October 7, 2002. For dates 
of public information and education meetings, please see Supplementary 
Information.

ADDRESSES: Mail or hand deliver written comments to the docket number 
appearing at the top of this document to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW, Washington, DC 20590-0001 or submit electronically at 
http://dms.dot.gov/submit. All comments should include the docket 
number appearing in the heading of this document. In addition, as part 
of the Department's ongoing effort to reduce paperwork burdens, the 
Department invites the general public to take this opportunity to 
comment to OMB on the information collections contained in this 
proposed rulemaking, as required by the Paperwork Reduction Act. Such 
comments should be sent to the following address: Attention--Desk 
Officer for the Interior Department, Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 27th Street, 
NW., Washington, DC 20503. Please send a copy of these paperwork 
burdens comments to the Dockets Management Facility as noted above. All 
comments received will be available for examination and copying at the 
Dockets Management Facility between 9 a.m. and 5 p.m., ET, Monday 
through Friday, except Federal holidays. Those desiring notification of 
receipt of comments must include a self-addressed, stamped postcard, or 
you may print the acknowledgement page that appears after submitting 
comments electronically. For locations of public information meetings 
see the Supplementary Information section.

FOR FURTHER INFORMATION CONTACT: LeRoy Gishi, Chief, Division of 
Transportation, Bureau of Indian Affairs, 1849 C Street, NW., MS 4058 
MIB, Washington, DC 20240, (202) 208-4359 between 8 a.m. to 5 p.m., 
EST, Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users may access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator (URL): 
http://dms.dot.gov. It is available 24 hours each day, 365 days each 
year. Please follow the instructions online for more information and 
help. An electronic copy of this document may be downloaded using a 
computer, modem, and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may reach the Office of the Federal Register's 
home page at: http://www.archives.gov/federal_register and the 
Government Printing Office's web site at: http://www.access.gpo.gov/nara.

I. Background

What Information Does This Section Address?

    This section addresses:

--Public information and education meetings the Department will hold 
during the comment period;
--The Transportation Equity Act for the 21st Century (TEA-21), Public 
Law (Pub. L.) 105-178;
--The IRR Program;
--How the Secretary formed the TEA-21 Negotiated Rulemaking Committee 
(the Committee), who its members are, how the Committee operated, when 
the Committee met, and the Committee's process for developing the rule 
and the Tribal Transportation Allocation Methodology for distributing 
IRR Program funds;
--How funding for the IRR Program is currently distributed under the 
existing relative need formula; and
--Issues on which Federal and tribal negotiators were unable to agree.

What Public Information Meetings Are Scheduled To Explain This Rule?

    We will hold a series of 12 public information and education 
meetings within the comment period for this notice of proposed 
rulemaking (NPRM) to explain the content of the NPRM, answer questions, 
and encourage written public comment. The meetings will be held at the 
locations listed below. Individuals wishing information, may contact 
the individual listed under the caption FOR FURTHER INFORMATION 
CONTACT.
    The purpose of the public information and education meetings is to 
present the proposed rule and the proposed funding methodology. They 
are not public hearings. The meetings will include brief presentations 
by members of the TEA-21 Negotiated Rulemaking Committee on the content 
of the NPRM and the Tribal Transportation Allocation Methodology, 
including the Relative Need Distribution Factor for distributing IRR 
Program funds, and a period for clarifying questions. Attendees wishing 
to express comments on the content of the proposed rule should direct 
those comments to the address listed under the caption ADDRESSES.
    The meeting sites and dates are:

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              Location                               Dates
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Minneapolis, Minnesota..............  September 25, 2002.
Nashville, Tennessee................  September 27, 2002.
Rapid City, South Dakota............  August 20, 2002.
Billings, Montana...................  August 22, 2002.
Las Vegas, Nevada...................  August 27, 2002.
Sacramento, California..............  August 29, 2002.
Gallup, New Mexico..................  September 4, 2002.
Santa Fe, New Mexico................  September 6, 2002.
Anchorage, Alaska...................  September 10, 2002.
Portland, Oregon....................  September 12, 2002.
Tulsa, Oklahoma.....................  September 17, 2002.
Oklahoma City, Oklahoma.............  September 19, 2002.
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How Will the Public Education and Information Meetings Be Conducted?

    Each meeting will be conducted by a facilitator with tribal 
Committee members presenting the proposed rule and the proposed funding 
methodology. There will be periods for questions and answers. Each 
meeting will be held from

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8 a.m. to 5 p.m., local time. The agenda for the meetings is:

    Agenda for Information and Education Meetings (all times local)

8-8:30 a.m.  Introduction (Meeting format)
8:30-8:45 a.m.  Overview of the Negotiated Rulemaking Process
8:45-9:15 a.m.  Explanation of NPRM--Preamble, Table of Contents, Parts
9:15-9:30 a.m.  Break
9:30-12 noon  Explanation and Clarification of Published Proposed Rule
12-1 p.m.  Lunch Break
1-1:30 p.m.  Overview of Tribal Transportation Allocation Methodology 
(TTAM) (funding)
1:30-3 p.m.  Explanation and Clarification of TTAM (funding)
3-3:15 p.m.  Break
3:15-5 p.m.  (Continued) Explanation and Clarification of TTAM 
(funding)

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. Several provisions of TEA-21 directly 
affect the Indian Reservation Roads (IRR) program. TEA-21:
     Authorizes $1.6 billion for the IRR Program for fiscal 
years 1998-2003;
     Provides for use of the Indian Self-Determination and 
Education Assistance Act (the ISDEAA), Public Law 93-638, as amended, 
by tribes to contract IRR projects; and
     Establishes the Indian Reservation Roads Bridge Program 
(IRRBP), codified at 23 U.S.C. 202(d)(c).
    A minimum of $13 million of IRR funds is set aside for a nationwide 
priority program for improving deficient IRR bridges. On July 19, 1999, 
the Secretary of Transportation issued an interim final rule for the 
IRR bridge program, now found at 23 CFR 661.

What Is the Indian Reservation Roads Program?

    The Indian Reservation Roads (IRR) Program is a program of eligible 
transportation projects authorized under 23 U.S.C. 204. The program is 
jointly administered by BIA and FHWA's Federal Lands Highway Core 
Business Unit. The duties and responsibilities of BIA and FHWA are 
described in a Memorandum of Agreement between the two agencies which 
can be found at the section on joint administration. 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 the Department of the Interior 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. 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 to IRR 
projects on or near Indian reservations according to the annual 
approved priority program of projects. BIA distributes funds using the 
relative need formula. This formula addresses the allocation of funds 
to reflect the cost to improve roads to an adequate standard, measure 
the relative importance of road usage, and measure the socio-economic 
needs to be served by new transportation facilities.

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 2000, the IRR 
system consisted of approximately 25,700 miles of BIA and tribally-
owned public roads and 25,600 miles of state, county, and local 
government public roads.

How Do BIA and FHWA Jointly Administer Statutory Requirements for the 
IRR Program?

    The Federal-Aid Highway Act of 1944, Pub. L. 521, 58 Stat. 838, 
Section 10(c) required the Public Roads Administration to approve the 
location, type, and design of all IRR roads and bridges before any 
expenditures were made and generally supervise all such construction. 
In 1946, the predecessor agencies of BIA and FHWA (the Office of Indian 
Affairs and the Public Roads Administration, then in the Department of 
Commerce, respectively), entered into their first agreement to jointly 
administer statutory requirements for the IRR Program. Since that time, 
there have been other interagency agreements to carry out FHWA and BIA 
duties and responsibilities under 23 U.S.C. 208.
    In 1973, BIA and FHWA entered into an agreement for an ``Indian 
Roads Needs Study''; FHWA was to assist BIA in identifying roads that 
were at that time, or that should have been, included, as BIA's 
responsibility. In 1974, BIA and FHWA entered into two separate 
agreements which set out the joint and individual statutory 
responsibilities of FHWA and BIA for constructing and improving Indian 
reservation roads and bridges. The intent of both agreements was to 
establish a Federal-aid Indian road system consisting of public Indian 
reservation roads and bridges for which no other Federal-aid funds were 
available. Both BIA and FHWA jointly designated those roads and, under 
23 U.S.C. 208, FHWA was responsible for approving the location, type, 
and design of IRR and bridge projects and supervising construction of 
these projects. At that time, IRR projects were authorized under the 
Federal-Aid Highway Act and under 23 U.S.C. 208, but they were 
constructed with Department of the Interior appropriations.
    In 1979, BIA and FHWA entered into another agreement which 
explicitly recognized the role of individual tribes in defining overall 
transportation needs. This agreement provided that the Indian road 
system was to consist of:

[t]hose Indian reservations roads and bridges which are important to 
overall public transportation needs of the reservations as recommended 
by the tribal governing body. These are public roads for which BIA has 
primary responsibility for maintenance and improvement. Roads included 
on the Indian Road System shall not be on any Federal-aid system for 
which financial aid is available under 23 U.S.C. 104.

After STAA's enactment, BIA and FHWA entered into a new 1983 Memorandum 
of Agreement that set forth the respective duties and responsibilities 
of each agency for the IRR Program. Under the interagency agreement, 
BIA, working with each tribe, was to develop an annual priority program 
of construction projects and submit the annual priority program to FHWA 
for review, concurrence, and

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allocation of funds. This 1983 agreement also specifically referenced 
the Buy Indian Act of June 25, 1910, 36 Stat. 891 (see also 25 U.S.C. 
13) in response to 23 U.S.C. 204(e) which provided an exemption, if in 
the public interest, to the competitive bidding requirements of Title 
23 with respect to all funds appropriated for the construction and 
improvements of IRRs that the Secretary administers. The 1983 
interagency agreement also recognized that, although FHWA's assistance 
and oversight would continue, both FHWA and BIA would be responsible 
for the implementation and success of the IRR Program. As a result of 
section 1028 of ISTEA, which provided for the Highway Bridge 
Replacement and Rehabilitation Program, BIA and FHWA amended their 1983 
agreement to provide for their respective responsibilities for that 
program.

Why Did the Secretary Enter Into Negotiated Rulemaking With Indian 
Tribal Governments?

    TEA-21, Section 1115(b), mandates that the Federal Government (with 
representatives from the Department of the Interior and the Department 
of Transportation) enter into negotiated rulemaking with tribal 
governments to develop IRR Program procedures and a funding formula to 
allocate IRR funds. This rule was negotiated under the provisions of 5 
U.S.C. 561.

What Is the Purpose of the TEA-21 Negotiated Rulemaking Committee?

    The purpose of the TEA-21 Negotiated Rulemaking Committee is to 
negotiate and develop proposed regulations for the IRR Program to 
implement the applicable portions of TEA-21 and to establish a funding 
formula for fiscal year 2000 and each subsequent year based on factors 
that reflect:
     The relative needs of the Indian tribes, and reservations 
or tribal communities, for transportation assistance; and
     The relative administrative capacities of, and challenges 
faced by, various Indian tribes, including the cost of road 
construction in each Bureau of Indian Affairs area, geographic 
isolation and difficulty in maintaining all-weather access to 
employment, commerce, health, safety, and educational resources. (TEA-
21, Pub. L 105-178, Section 1115(b)).

How Did the Secretary of the Interior Inform the Public About the TEA-
21 Negotiated Rulemaking Process?

    The Secretary published a Federal Register ``Notice of Public 
Meeting'' on October 30, 1998 (63 FR 58413). The Secretary held a 
national informational meeting for tribal governments, tribal 
organizations, individual tribal members, and the public to share 
information about the regulatory negotiation process for the IRR 
Program under TEA-21 on November 16, 1998, in Albuquerque, New Mexico. 
On December 17, 1998, the Secretary published a Federal Register 
``Notice of Intent to Form a Negotiated Rulemaking Committee and Accept 
Applications for Membership'' (63 FR 69580). On February 11, 1999, the 
Secretary published a Federal Register notice proposing the members of 
the TEA-21 Negotiated Rulemaking Committee (Committee)(64 FR 6825). The 
Committee's meeting schedule was published on the IRR web site at 
http://www.irr.bia.gov. BIA produced a periodical newsletter that was 
published on the web site and was mailed to all primary and alternate 
Committee representatives. In addition, there were periodic mailings to 
all tribal leaders of federally recognized tribes. All full Committee 
and work group meetings were open to the public and the Committee 
accepted oral and written comments at each meeting. The Committee met 
in different geographical areas of the United States so that Indian 
tribes and tribal organizations could participate in the meetings and 
provide their comments for the record.

How Was the TEA-21 Negotiated Rulemaking Committee Formed?

    The Secretary was required by 23 U.S.C. 202, as amended by TEA-21, 
to develop regulations and establish a funding formula for allocating 
IRR funds among Indian tribes using a negotiated rulemaking process. 
Section 202 also required the Secretary to:
     Apply the procedures of negotiated rulemaking under 5 
U.S.C. 561 et seq. (the Negotiated Rulemaking Act of 1990), in a manner 
that reflects the unique government-to-government relationship between 
Indian tribes and the United States; and
     Ensure that the membership of the Committee includes only 
representatives of the Federal Government (the Department of the 
Interior and the Department of Transportation) and of geographically 
diverse small, medium, and large tribes.
    In the Federal Register notice of December 17,1998 (63 FR 69580), 
the Secretary requested nominations for committee representatives from 
tribes in each of the 12 BIA regions. In addition, the Secretary 
invited other interested, qualified persons to apply. The Secretary 
encouraged tribes to nominate representatives and alternates who were 
members of geographically diverse direct service, self-determination, 
and self-governance tribes, as well as members of tribes who had 
varying levels and types of experience in transportation development 
and management. Each of the 12 BIA regions were also invited to 
nominate 2 representatives and 2 alternates to serve on the committee.
    After reviewing the nominations, the Secretary appointed 2 primary 
tribal representatives and 2 alternate tribal representatives from each 
of the 12 BIA regions. In addition, the Secretary added five additional 
primary tribal committee representatives from regions that were 
considered under-represented in order to meet the statutory 
requirements for adequate representation of small, medium, and large 
tribes. On February 11, 1999, the Secretary published a Federal 
Register ``Notice of the Proposed Membership of the Negotiated 
Rulemaking Committee'' under Section 1115 of TEA-21 (64 FR 6825). After 
the Secretary received and reviewed comments, the representatives named 
in the notice were appointed to the Committee.
    The Committee membership reflected balanced interests by including: 
(1) Members of geographically diverse small, medium, and large tribes; 
(2) members of tribes identified as direct service, self-governance, 
and self-determination; and (3) members of tribes with experience in 
many areas of transportation development and management (e.g., 
jurisdictional issues, complexity of transportation systems, climatic 
concerns, environmental factors, geographic isolation, etc.). The 
Secretary appointed 10 Federal representatives from the Bureau of 
Indian Affairs (BIA) (the Department of the Interior) and 3 Federal 
representatives from the Federal Highway Administration (FHWA) (the 
Department of Transportation). The Committee has a total of 42 primary 
representatives--29 primary tribal representatives and 13 primary 
Federal representatives. The Secretary also appointed two alternates 
for each of the primary tribal representatives. The Secretary appointed 
the BIA Regional Director from the Southwest Regional Office as the 
Designated Federal Official.

How Does the Committee Operate?

    The Committee operates under a set of written rules called 
protocols that the Committee developed. In the protocols, the Committee 
agreed to procedures for conducting meetings, to dates and locations of 
meetings, and to operate

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based on consensus decision-making. Four tribal representatives and 
three Federal representatives, chosen by their respective caucuses, 
chaired the full Committee meetings.
    The Committee identified over 117 issues with over 422 questions 
and answers for consideration. The Committee established four work 
groups to address identified subject matter areas of the IRR Program. 
Each work group chose a tribal representative to chair the work group. 
The work groups considered matters that addressed: (1) Funding formula, 
(2) policy, (3) delivery of services, and (4) technical standards. 
Tribal and federal resource persons who were not Committee members also 
assisted the work groups. The four work groups reviewed and researched 
issues and, where appropriate, drafted regulations in question and 
answer form. Each work group made recommendations to the full Committee 
on whether and how each issue should be addressed in the proposed 
regulations. Each work group presented its draft questions and answers 
to the full Committee for approval. The tribal and federal caucuses 
separately reviewed all proposed questions and answers and each caucus 
commented to the other on all proposed questions and answers. The full 
Committee considered the caucuses' comments. If the questions and 
answers needed further negotiation or consideration, a small group of 
tribal and federal members met to discuss them and work toward 
agreement. The small groups then presented their recommendations to the 
respective caucuses which made their recommendations to the full 
Committee. When the full Committee agreed on the questions and answers, 
approval was by consensus. All consensus items which were made a part 
of the official record are contained in the Committee's Documents 1-15. 
Consensus items were distributed to all Committee members and posted on 
the IRR web site for TEA-21.

When Did the TEA-21 Committee Meet?

    The TEA-21 Committee held its first meeting March 16-18, 1999, in 
Albuquerque, New Mexico. The Committee decided that it would meet in 
various locations across the country to allow tribal representatives 
and individuals to present comments to the Committee and participate in 
full Committee and work group discussions. Between March 1999 and the 
last meeting November 27-December 1, 2000, the full Committee met 23 
times at the following locations: Albuquerque, New Mexico; Portland, 
Oregon; Washington, DC; Sacramento, California; Anchorage, Alaska; 
Tulsa, Oklahoma; Ft. Yates, North Dakota; Phoenix, Arizona; Green Bay, 
Wisconsin; Minneapolis, Minnesota; Denver, Colorado; and San Diego, 
California. The four committee work groups met separately during full 
Committee meetings and at different times and locations.

How Will the TEA-21 Committee Handle Written Public Comments?

    The Committee will review and consider all comments received within 
the comment period for this rule. To the extent practicable, the 
Committee will consider comments received after the comment closing 
date. It will make recommendations on the comments to the Secretary for 
the final rule.

How Is the IRR Program Funded?

    From the DOT appropriation, FHWA reserves up to 1.5 percent for its 
administration and oversight of the IRR Program. Together BIA and FHWA 
develop a plan for using the remaining funds. This plan includes 
program management funds for BIA (up to 6 percent is authorized in the 
annual DOI Appropriations Act). Up to 2 percent of IRR Program funds 
are set aside for transportation planning by tribal governments.

What Is the Existing ``Relative Need Formula'' (RNF)?

    The existing relative need formula is a mathematical calculation 
based on factors reflecting the cost to improve eligible IRR's, vehicle 
miles traveled, and population of federally-recognized tribes. As 
provided for in the 1982 Surface Transportation Assistance Act (STAA), 
BIA developed and FHWA approved the RNF to provide an acceptable method 
to compute the relative needs of the various Indian reservations for 
the distribution of Highway Trust Funds among all federally recognized 
Indian tribes.

What Is the History of the Existing Relative Need Formula?

    On January 6, 1983, the STAA provided Highway Trust Funds for road 
construction on Indian reservations. Section 126 of the STAA required 
the Secretary of Transportation to allocate Highway Trust Funds for 
improvement of Indian Reservation Roads (IRR) according to the relative 
needs of the various reservations.
    In 1983, BIA began a planning process to determine the relative 
need for roads on the various reservations and to develop 
transportation plans for Indian reservations. In 1988, BIA undertook a 
national relative need study. From January 1988 to May 1989, an 
independent Indian consulting firm conducted a study under the guidance 
of BIA. The result of the study was a proposed Relative Need Formula. 
This proposed Relative Need Formula was made available to all tribes 
for review and comment over a period of 2 years. A final review of the 
existing Relative Need Formula was conducted in 1992 and the Deputy 
Commissioner of Indian Affairs and the FHWA approved the existing 
relative need funding formula. In January 1993, BIA began implementing 
the RNF over a 4-year transition period.

What Is the Definition of ``Relative Need'' With Respect to Indian 
Reservation Roads?

    ``Relative Need'' is a ranked series of road and bridge 
improvements (by estimated cost) required to bring the IRR system from 
its existing condition to an adequate safe standard. When applied to 
individual Indian reservations it is a ranked series of road 
improvements (by estimated cost) required to bring roads and bridges 
that are located within or provide access to an Indian reservation to 
an adequate safe standard.
Does the Existing Relative Need Formula Need To Be Used To Compute 
Percentages of Highway Trust Funds for Allocation to Indian Tribes?
    The existing Relative Need Formula is used to compute percentages 
of Highway Trust Funds for allocation to Indian tribes because there is 
a legislative requirement as follows.
    ``On October 1 of each fiscal year, the Secretary [of 
Transportation] shall allocate the sums authorized to be appropriated 
for such fiscal year for Indian Reservation Roads according to the 
relative need of the various reservations as jointly identified by the 
Secretary [of Transportation] and the Secretary of the Interior.'' 23 
U.S.C. Sec. 202(e).

What Does the Existing Relative Need Formula Look Like?

    The following is the final version of the existing Relative Need 
Formula:

A = 0.5  x  (CI  Total CI) + 0.3  x  (VMT  Total VMT) + 
0.20  x  (POP  Total POP)

    Where:

A = Percent of Relative Need for an individual tribe
CI = Total cost to improve for an individual tribe
VMT = Total vehicle miles traveled for an individual tribe
POP = Total population for an individual tribe

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Total CI = Total cost to improve for all tribes
Total VMT = Total vehicle miles traveled for all tribes
Total POP = Total population for all tribes
0.50, 0.30, 0.20 = Coefficients reflecting relative importance given to 
each formula factor

Example:
    Tribe X has:

CI = $51,583,000
Total CI = $4,820,399,000
VMT = 45,680
Total VMT = 7,929,653
POP = 4,637
Total POP = 1,183,967
A = 0.00535 + 0.00173 + 0.00078
A = 0.00786 or 0.786 percent

    If Construction Funds available for the fiscal year are 
$160,000,000
    Then: Tribe X distribution would be: $160,000,000  x  0.00786 = 
$1,257,600

How Is the Cost To Improve (CI) Computed?

    The data needed to compute the CI is taken from road inventories 
performed by tribes under the Indian Self-Determination and Education 
Assistance Act (Pub. L. 93-638) contracts and by BIA. The road 
inventory includes attributes on individual road standards commonly 
found on reservations. In addition to the inventory, BIA regions supply 
cost tables identifying estimated costs for constructing a mile of 
road, in terms of four key road construction estimating items added to 
each specified standard, including grade and drain, gravel 
construction, pavement construction and incidental construction. 
Several other inventory attributes are then used to approximate the 
existing condition of the road or section of road in terms of the four 
key road construction-estimating items. Utilizing the cost per mile 
estimate tables submitted by BIA Regions, the cost for improving an 
existing road, or section of road, from its existing condition to its 
identified adequate road standard is computed. Once all of the 
computations are made for all roads or road sections needing 
improvement within each reservation, all costs are added up. BIA then 
uses the results in the Relative Need Formula.

How Is the VMT Acquired?

    The road inventory data base includes existing average daily 
traffic (ADT) and/or projected 20-year ADT for each road or section of 
road which is eligible and designated for improvement. The length of 
road, or section of road, is also included in the inventory data base. 
The vehicle miles traveled (VMT) for each road, or section of road, to 
be improved is then computed by multiplying the 20-year projected ADT 
by the length of road or section of road. The VMTs for each road or 
section of road are then added up and the totals used in the Relative 
Need Formula.

How Is the Population Data Acquired?

    BIA currently acquires the population data for each reservation 
from the Indian Service Population and Labor Force Estimates published 
by the U.S. Department of the Interior, Bureau of Indian Affairs.

What Is the Significance of the Coefficients 0.50, 0.30, and 0.20 That 
Are Used in the Current Relative Need Formula?

    The coefficients used in the formula reflect the relative 
importance given to each factor. The size of the coefficient is 
justified on the following grounds:
     Cost to improve is the most important factor and is the 
primary basis for determining Relative Need. It is given the weight of 
0.50 (50 percent).
     Benefits received from a road improvement are generally 
measured in terms of usage or VMT. This factor is important, but not as 
significant as cost in determining need. It is given the weight of 0.30 
(30 percent).
     Population, in itself, is not an overwhelming indicator of 
the need for road improvements. It is given a weight of 0.20 (20 
percent).

Which Roads Are Included in the Cost To Improve Calculations?

    Existing or proposed roads in the BIA system which are considered 
to have a construction need by Indian tribes are included in the cost 
to improve calculations. Tribes must adhere to certain guidelines in 
the selection of those roads. The roads must:
     Be on the Indian Reservation Road system;
     Not belong to or be the responsibility of other 
governments (i.e., States or counties);
     Be within or provide access to reservations, groups, 
villages and communities in which the majority of the residents are 
Indian; and
     Be vital to the economic development of Indian tribes.
    These roads are also identified by construction need (CN) in the 
road inventory which is performed for each reservation. Currently only 
the roads with a construction need category of 1 and 4 are included in 
the cost to improve calculations. These are defined as follows:
    Construction Need 1 (CN1): Existing roads needing improvement.
    Construction Need 4 (CN4): Roads which do not currently exist and 
need to be constructed (proposed roads).

What Is the Construction Need of Completed Road Improvements?

    Roads or sections of roads which have been improved to their 
acceptable standard(s) are classified in the road inventory as 
construction need of 3 (CN3) roads or construction need of 0 (CN0) 
roads. CN3 roads or sections of roads are roads for which no further 
improvements are planned. Roads or sections of roads which have been 
improved to their acceptable standard but future improvements are 
anticipated, should be classified as CN0 until further improvements are 
needed due to deterioration based on age or increased traffic volumes. 
While classified as CN3 or CN0, roads are not included in the cost to 
improve calculations.

Why Is it Important To Have a Road Inventory That Is Accurate and 
Current?

    Much of the data needed to compute the cost to improve and the VMT 
comes from the road inventory. If the data from the inventory is not 
accurate and current the true Relative Need for each tribe cannot be 
computed accurately. The inventory should be updated anytime a road is 
improved or added to the inventory. The inventory should also be 
updated periodically because deterioration of roads may occur and the 
cost to improve to the acceptable standard then increases. This would 
also indicate the true Relative Need.

What Is Being Done To Assure That the Data Used in the Relative Need 
Formula Is Uniform, Accurate, and Consistent?

    The nationwide road inventory system, including all reservations, 
is continuously updated. This inventory is used to determine the 
relative condition of the road system for each reservation. The data is 
also used to compute the relative ``cost to improve'' roads on each 
reservation to an adequate safe standard. The cost to improve data is 
used together with the road usage (VMT) and Indian Population data to 
determine the latest ``Relative Need'' of each reservation. The new 
inventory is updated when a road is improved, when a new road is added 
to the inventory or when a road deteriorates to the point when it needs 
to be improved.

What Is the Proposed Method of Distributing IRR Program Construction 
Funds?

    The Tribal Caucus of the TEA-21 Negotiated Rulemaking Committee 
developed the Tribal Transportation

[[Page 51333]]

Allocation Methodology (TTAM) as a consensus compromise.
    1. TTAM distributes IRR Program construction funds as follows:
     2% Transportation Planning Funds. It continues to provide 
for 2% Transportation Planning Funds.
    TTAM introduces 2 new concepts:
     IRR High Priority Project Program (IRRHPP). It creates a 
national funding pool for IRRHPP using 5% of IRR Program construction 
funds.
    This pool will be available on an application basis for tribal 
projects needed for emergencies or disasters, or for tribes whose 
funding allocation under the formula is insufficient to build their 
highest priority project. IRRHPP projects must be IRR eligible and may 
not exceed $1 million. If Congress increases appropriations for the IRR 
Program above the current level of $275 million, 12.5% of the increase, 
after takedowns, will be added to the IRRHPP funding pool; and
     Population Adjustment Factor (PAF) allocation. If Congress 
increases appropriations for the IRR Program above the current level of 
$275 million, 12.5% of the increase, after takedowns, will be used for 
a new small minimum allocation, PAF, for all tribes based on population 
ranges. PAF addresses the relative administrative capacities of tribes 
by taking into account the fact that all tribes participating in the 
IRR program necessarily incur some costs. As a practical matter, any 
participating tribe must undertake activities such as inventory 
development, planning, inter-governmental coordination, and maintaining 
management systems. The PAF component ensures that all tribes have a 
small but meaningful amount of funds for these activities. By delaying 
the PAF until there are appropriations increases, the TTAM minimizes 
the negative impact on large tribes.
    2. TTAM establishes a Relative Need Distribution Factor:
     The Relative Need Distribution Factor. The remainder of 
IRR Program construction funds (after 2% for Transportation Planning 
and 5% for IRRHPP) will be allocated by the following formula:

50% Cost-to-Construct (CTC) + 30% Vehicle Miles Traveled (VMT) + 20% 
Population (POP).

    These are the same formula factors and the same percentage 
allocations as under the existing BIA Relative Need Formula, but some 
changes have been made in the definitions and data used for each. TTAM 
includes technical improvements in the way the Relative Need 
Distribution Factor data is collected, applied, and administered which 
will make it easier for all tribes to participate in the IRR Program.

How Is Cost-to-Construct (CTC) Calculated in the Relative Need 
Distribution Factor?

    The largest component of the TTAM (50%) is CTC, a factor which 
measures the need for construction funds for tribally-identified 
projects and, thus, the relative need of tribes for transportation 
assistance. CTC in TTAM will be derived from an expanded inventory that 
will include all IRR-eligible transportation projects. TTAM provides 
guidelines for future improvements in the cost methodology for the 
Relative Need Distribution Factor. Until this revised method is 
completed, the Relative Need Distribution Factor uses the ``Simplified 
Approach to Cost to Construct'' in Appendix C to Subpart C. By 
expanding the inventory for funding purposes to include all IRR-
eligible projects, the Relative Need Distribution Factor of TTAM will 
result in a more complete accounting of tribal transportation needs. It 
will also ensure that IRR Program funding is spent on projects that 
generate funding in the Relative Need Distribution Factor, and thereby 
remove completed projects from the funding system. In contrast, under 
the existing Relative Need Formula, cost to improve funding was 
generated only by BIA system routes, but could be expended on other 
IRR-eligible projects.

How Is the Vehicle Miles Traveled (VMT) calculated in the Relative Need 
Distribution Factor?

    VMT (30%) is a factor measuring transportation facility usage and 
includes the need to maintain and improve the existing transportation 
infrastructure. The Relative Need Distribution Factor uses the same 
methodology for computing VMT as the existing relative need formula, 
except that it is computed from current Average Daily Traffic (ADT) 
counts rather than the projected 20-year ADT.

How Is Population (POP) Calculated in the Relative Need Distribution 
Factor?

    POP (20%) is a factor that is one indicator of transportation 
needs. The data used for population will be the tribal service 
population taken from the BIA Labor Force Report, until such time as 
the Native American Housing Assistance and Self-Determination Act 
(``NAHASDA'') American Indian and Alaska Native service population data 
is adjusted to include 2000 Federal census data. At that time, the 
NAHASDA service population will be used. The NAHASDA service population 
is developed by the Department of Housing and Urban Development 
pursuant to the Native American Housing Assistance and Self-
Determination Act.

Why Did the Tribal Caucus Develop TTAM?

    The Tribal Caucus developed TTAM to reflect Congress's intent 
expressed in TEA-21 that the funding distribution method balance the 
interests of all tribes and enable all tribes to participate in the IRR 
Program. Other guiding principles the Tribal Caucus used to develop the 
TTAM were:
     Avoiding major percentage reductions of funds from 
particular tribes;
     Allowing tribes to identify their true transportation 
needs;
     Correcting technical problems with the existing Relative 
Need Formula; and
     Devising a system that is accurate, verifiable, and 
uniformly applied.
    The overall effect of the TTAM is to make it easier for small 
tribes to participate in the program, without making major 
reallocations of funds from larger tribes.

Why Did the Tribal Caucus Change the Existing Relative Need Formula to 
the Relative Need Distribution Factor?

    The BIA's prior relative need formula was criticized by smaller and 
historically underserved tribes for allocating funds primarily from an 
inventory of roads BIA built in the past and still owns. By driving 
funding primarily from an inventory of BIA system roads, the existing 
RNF tended to direct funds to tribes according to their past 
participation in the program, leaving many tribes out. Further, tribes 
that generate a small share under the formula have had difficulty 
accessing any construction funds at all, since a road construction 
project typically costs more than a small tribe's entire allocation 
under the formula. On the other hand, many other tribes believe BIA's 
existing relative need formula serves their needs and requires only 
technical improvements to ensure that it is accurately and uniformly 
applied.

How Is the IRR Inventory Used in the Relative Need Distribution Factor?

    The inventory used in the Relative Need Distribution Factor will be 
expanded to include tribally-owned public roads and other IRR-eligible 
transportation facilities identified by tribes to more accurately 
measure transportation assistance needs and to match the projects on 
which IRR Program funding is spent. Other improvements will be made in 
the way

[[Page 51334]]

the formula components are calculated and applied.

What Are Other Features of the New Relative Need Distribution Factor?

     It bases the inventory used for funding purposes on the 
needs of tribes as identified through long-range transportation 
planning.
     It allows the inclusion of all IRR-eligible facilities in 
the inventory, but gives greater weight to BIA and tribally-owned 
public facilities by limiting, for Relative Need Distribution Factor 
purposes, most other IRR-eligible facilities to the amount of local 
matching funds needed for the project.
     It provides that construction cost data be derived from an 
average of local tribal costs, state cost data from the tribe's area, 
and national tribal cost averages .

How Does the Relative Need Distribution Factor Meet the Needs of Small, 
Medium, and Large Tribes?

    The Relative Need Distribution Factor will broaden tribal 
participation in the IRR Program. By expanding the inventory to include 
all IRR-eligible projects, the Relative Need Distribution Factor will 
benefit all tribes by allowing all of their actual IRR transportation 
needs to be counted for funding purposes. The Relative Need 
Distribution Factor improves the accuracy and uniformity of the data by 
using state and national average construction cost data in addition to 
self-reported costs. Various other improvements are made in the 
management and processing of the data.

How Does the Relative Need Distribution Factor Comply With 
Congressional Intent?

    TEA-21, at 23 U.S.C. 202(d)(2)(D), required that the funding 
distribution method be based on factors that reflect:
     The relative needs of the Indian tribes, and reservation 
or tribal communities, for transportation assistance; and
     The relative administrative capacities of, and challenges 
faced by, various Indian tribes, including the cost of road 
construction in each Bureau of Indian Affairs area, geographic 
isolation and difficulty in maintaining all-weather access to 
employment, commerce, health, safety, and educational resources.
    Relative Need of Indian Tribes for Transportation Assistance. The 
Relative Need Distribution Factor and inventory system address the 
relative need of all tribes for transportation assistance by setting up 
a tribally-driven process for developing and maintaining the inventory 
data from which funding is calculated. It provides for a full 
accounting of tribal transportation needs. In the existing relative 
need formula cost to improve funding was generated only by BIA system 
routes, but all IRR roads designated as construction need 1 (CN1) and 4 
(CN4) compute a need based on VMT. The Relative Need Distribution 
Factor continues the practice of the existing formula using Population 
and VMT factors to allocate funds based on road use and population.
    Relative Administrative Capacities of Indian Tribes. The Relative 
Need Distribution Factor recognizes that all tribes participating in 
the IRR Program necessarily incur some costs, such as the cost of 
planning, developing the inventory, and interacting with other 
government agencies. For this reason, 12.5% of future funding increases 
will be allocated by the Population Adjustment Factor so that all 
tribes receive at least some funding. The existing 2% Transportation 
Planning program is continued. Finally, the interim funding allocations 
used in FY 2000, 2001, and 2002 provided per tribe allocations to 
enable tribes to do administrative and planning work necessary to 
participate in the IRR Program.
    Cost of Road Construction. Tribal construction costs will continue 
to drive 50% of the funding allocation.
    Geographic Isolation. The difficulties caused by geographic 
isolation are addressed in the Cost-to-Construct factor of the Relative 
Need Distribution Factor because geographic isolation (location) is the 
biggest variable in determining construction costs. The Relative Need 
Distribution Factor uses an average of local tribal costs, local state 
costs, and national average tribal costs in applying the Construction 
Cost factor, and thus takes into account the geographic differences 
between the tribes.
    Difficulty in Maintaining All-Weather Access. This factor will be 
addressed by the tribes themselves as they add projects they believe 
are important to the inventory. It is also addressed in the ranking 
system for the new IRRHPP program, where projects that address these 
particular needs score higher.

II. Summary of Regulations

Subpart A--General Provisions 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. This subpart provides 
interpretation of the language used throughout 23 U.S.C. 202(d) and 
(204).
    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. It 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 activities eligible for IRR funding; and
     Lists activities not eligible for IRR 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 authorized under 23 U.S.C. 204(j).
     Covers the highway safety aspects of the IRR Program; and
     Those activities, functions, and equipment that may be 
eligible for funding under this program; and
     The formation of an IRR Coordinating Committee to make 
recommendations to help meet program objectives.
     Local Technical Assistance Programs available to BIA and 
tribes performing activities under the IRR Program.
    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 includes a Relative Need Distribution Factor to 
distribute IRR Program funds. It includes:
     Allocation of IRR Program Funds (overview);
     2% Transportation Planning Program;

[[Page 51335]]

     Relative Need Distribution Factor for IRR Construction;
     IRR High Priority Projects Program (IRRHPP);
     Population Adjustment Factor (PAF); and
     Relative Need Distribution Factor.
    It 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;
     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 and funding for 
transportation planning;
     The requirements for developing a Transportation 
Improvement Program and long-range plans; and
     The requirements for public hearings in the development of 
IRR TIPs.
    This subpart also:
     Defines the IRR inventory and transportation 
classifications;
     Discusses how the IRR Inventory is developed and used;
     Discusses components of the IRR Inventory;
     Includes the environmental and archaeological requirements 
that apply to projects under this program;
     Covers whether IRR Program funds can be used for these 
requirements;
     Outlines design, construction, and construction monitoring 
standards;
     Includes procedures for road, bridge, and intermodal 
facilities;
     Identifies the roles of and the responsible entities for 
such activities;
     States the requirements for obtaining rights-of-way for 
construction of IRR facilities;
     Covers annual and semi-annual program reviews required as 
a part of the overall management and oversight of the IRR Program; and
     Discusses the processes and procedures used at the various 
office levels of the IRR Program to insure that the program is being 
carried under these regulations and the governing laws;
     Outlines the management systems that BIA must develop and 
maintain under 23 U.S.C. 303 for oversight and management of the IRR 
Program.

Subpart E--Service Delivery for Indian Reservation Roads

    This subpart tells how the 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.
    It also covers:
     Indian preference versus local preference in contracting;
     Contract enforcement;
     Applicability of the Buy Indian Act and the Buy American 
Act to the IRR Program;
     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 eligible 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;
     Professional licensing requirements;
     Requirements for project approvals; and
     Program accountability.

Subpart G--BIA Road Maintenance

    This subpart covers:
     BIA Transportation Facility Maintenance Program;
     Eligible activities and facilities for maintenance 
including roads, bridges, airports, and other eligible facilities;
     Maintenance funding;
     Facility ownership;
     Maintenance responsibilities to the traveling public;
     Maintenance management system requirements;
     Maintenance standards that apply to the maintenance 
program;
     Mandated bridge inspection requirements and standards; and
     Provisions for emergency maintenance.

Subpart H--Miscellaneous

    This subpart provides information to tribal governments on the 
transport of hazardous and nuclear waste and covers:
     Indian preference and tribal employment rights;
     Applicability of tribal taxes and fees for IRR Projects;
     Emergency relief for declared disasters on or near Indian 
reservations;
     Funding availability for repairs of eligible facilities;
     Tribal regulation of oversize and overweight vehicles;
     Reporting requirements;
     Welfare-to-work;
     Tribal employment rights;
     Establishing and operating tribal transportation 
departments and the eligible activities and/or functions for which 
these organizations can contract;
     Alternative dispute resolution procedures to resolve IRR 
Program disputes;
     Conflicts in law provisions; and
     Research activities available under the IRR Program.

III. Key Areas of Disagreement

    During the negotiated rulemaking the Committee addressed seven 
general subject matter areas: (1) General provisions, (2) IRR Program 
policy and eligibility, (3) IRR Program funding, (4) planning, (5) 
design and construction of IRR Program facilities, (6) IRR Program 
service delivery, and (7) maintenance and miscellaneous provisions. The 
Committee broke each area into questions and answers, the vast majority 
of which were agreed to by the Federal and tribal representatives.
    The tribal and Federal representatives did not reach a consensus on 
several issues. The disagreement items presented below by each side are 
not meant to be point-by-point rebuttals, rather, they are 
presentations of each side's views. The Federal and tribal suggestions 
on language (in question and answer format) for each area of 
disagreement are presented below, in order, by subpart and section, 
where appropriate. However, four areas of disagreement--advance 
funding, savings, contractibility, and availability of contract support 
funding--are outside the scope of this rulemaking. However, the 
Committee negotiated on these items and they are therefore presented 
together at the end of this section on disagreement items. In order to 
provide a complete proposed rule that could be commented upon, and 
pursuant to Administrative Procedure Act guidelines, the Federal text 
on the disagreement items is represented in the body of this proposed 
rule. Where Federal questions and answers are inserted into the rule, 
the section numbers are noted in the disagreement items below.

[[Page 51336]]

A. General Issues

    The Tribal caucus and Federal caucus interpreted differently some 
statutory requirements about what TEA-21 requires BIA and FHWA to do 
and permits tribes to do, leading to disagreements on items such as 
availability of IRR Program funds under the Indian Self-Determination 
and Education Assistance Act, as amended (the ISDEAA).
Tribal View
    As a general matter, the Tribal Caucus and Federal Caucus often 
disagreed over issues because they interpreted the statutory 
requirements of TEA-21 differently. For example, in the Tribal Caucus' 
view, TEA-21 plainly requires that all IRR Program funds be made 
available in accordance with the requirements of the Indian Self-
Determination and Education Assistance Act, as amended (the ISDEAA), to 
Indian tribes that choose to administer IRR projects or the entire IRR 
Program. See 23 U.S.C. 202(d)(3). TEA-21 also provides that all funds 
made available under Title 23 U.S.C. for Indian reservation roads and 
bridges are subject to the ISDEAA mandates ``[n]otwithstanding any 
other provision of law or any interagency agreement or program 
guideline, manual or policy directive.'' Id. Many of the disagreement 
items which follow stem from disagreements about what TEA-21 requires 
BIA and FHWA to do and permits Indian tribes to do.
    To the extent that the IRR regulations differ in any respect from 
the provisions in the ISDEAA, the Tribal Caucus believes that the IRR 
regulations should serve to advance--rather than retard--the Federal 
Government's avowed policy of increasing tribal autonomy and discretion 
in the operation of this federal Indian program. See Executive Order 
13084, Consultation and Coordination with Indian Tribal Governments 
(Nov. 6, 2000) (mandating that executive agencies develop federal 
policies that ``respect Indian tribal self-government and sovereignty'' 
and that ``grant Indian tribal governments the maximum discretion 
possible'' with respect to Federal statutes and regulations.
Federal View
    The Federal views below reflect the present Federal statutory and 
regulatory responsibilities of both DOI and DOT in their administration 
and oversight of the IRR Program.
    The Federal Caucus agrees that TEA-21 applies the ISDEAA to all IRR 
Program funds. However, TEA-21 does not, as the tribal view states 
above, require all IRR Program funds to be made available to tribes. 
Simply stated, the disagreement in statutory interpretation is over 
whether all IRR Program funds must be transferred to tribes or whether 
all IRR Program funds are subject to the ISDEAA.
    Section 1115(b) of TEA-21 provides:
    (A) In General.--Notwithstanding any other provision of law or any 
interagency agreement, program guideline, manual, or policy directive, 
all funds made available under this title * * * shall be made 
available, upon request of the Indian tribal government * * * in 
accordance with the Indian Self-Determination and Education Assistance 
Act * * *.
    (B) Exclusion of Agency Participation.--Funds for programs, 
functions, services, or activities, or portions thereof, including 
supportive administrative functions that are otherwise contractible to 
which subparagraph (A) applies, shall be paid in accordance with 
subparagraph (A) * * *.

B. Eligibility--Subpart B

    The issue is whether BIA or FHWA makes the determination on a new 
proposed use of IRR Program funds. The Federal text is inserted at 
Sec. 170.116.
Tribal View
    The Tribal Caucus proposes the following regulatory provision to 
guide Indian tribes in determining whether a proposed use of IRR funds 
is allowable:

How Can an Indian Tribe Determine Whether a New Proposed Use of IRR 
Funds Is Allowable?

    (a) An Indian tribe that proposes new uses of IRR funds may 
submit a written inquiry to BIA concerning whether the proposed use 
is eligible under Titles 23 and 25 of the United States Code, and 
other applicable provisions of federal law. The requesting Indian 
tribe must also provide a copy of its inquiry to FHWA.
    (b) BIA must provide the requesting Indian tribe, with a 
response in writing, within 45 days of receipt of the written 
inquiry. BIA must approve the proposed use unless it can identify a 
specific statutory prohibition to the proposed use related to 
transportation. To the extent practicable, BIA will consult with 
FHWA and the IRR Program Coordinating Committee in addressing the 
inquiry.
    (c) If BIA fails to issue a timely written response to the 
eligibility inquiry, the proposed use will be deemed to be allowable 
until guidance has been issued by the Coordinating Committee.
    (d) BIA will refer all eligibility decisions to the Coordinating 
Committee for consideration for guidance updates.
    (e) Denials of a proposed use may be appealed by the tribe under 
25 CFR part 2.
    (f) Nothing in this section shall be interpreted as modifying or 
diminishing an Indian tribe's authority to redesign programs and 
reallocate funds under Public Law 93-638, as amended, and applicable 
regulations.

    When an Indian tribe assumes and performs IRR Program activities 
under either a self-determination contract or self-governance 
agreement, its ISDEAA agreement is an intergovernmental agreement and 
is with BIA, not FHWA. Under 23 U.S.C. 203, the Secretary of the 
Interior (and, thus, BIA) has express authorization to approve 
projects. This express statutory authority to approve projects 
independent of FHWA necessarily carries with it the ability to 
determine whether a proposed use of funds for a given project is 
permissible. General policy statements in 49 U.S.C. 101(b) about the 
need for the DOT does not preempt the specific grant of authority to 
the Interior Secretary contained in 23 U.S.C. 203. Therefore, the 
Tribal Caucus believes that tribal inquiries as to whether a proposed 
use of the IRR Program funding an Indian tribe administers under its 
ISDEAA agreement with BIA are appropriately directed to BIA and that 
BIA should be responsible for making the decision in a timely fashion.
    The Federal Caucus approach would require the Indian tribe to 
submit its request to both BIA and FHWA for decision. This could lead 
to a situation where the agencies might issue inconsistent decisions. 
The Tribal Caucus believes that the Federal Caucus approach creates 
more procedural requirements than are necessary, discounts the fact 
that BIA has statutory authority to independently approve projects, 
overlooks that these ISDEAA agreements are `government-to-government' 
agreements between BIA and the tribe, and is inconsistent with the 
ISDEAA. Under the Tribal Caucus approach, the inquiry is submitted 
directly to BIA, with a copy to FHWA, and BIA is the agency responsible 
for issuing the decision. By making BIA responsible for issuing the 
decision, instances of inconsistent or contradictory results or 
decisions by BIA and FHWA are avoided. The Tribal Caucus approach also 
facilitates the ability of BIA to timely seek input from FHWA by 
requiring the Indian tribe to provide a copy of its request to FHWA 
directly. This approach will provide FHWA with the ability to provide 
BIA with input or guidance, if it so chooses. This approach also 
recognizes that BIA, as a party to the ISDEAA agreement, is the 
appropriate entity to respond to such tribal inquiries about the 
program assumed under such an intergovernmental agreement.
    With respect to the applicable standard, the Tribal Caucus believes

[[Page 51337]]

that a proposed use of IRR Program funds should be allowable unless the 
use would violate Congressional statutory dictates. The Tribal Caucus 
believes that the approach suggested by the Federal Caucus--that a 
proposed use must be approved if it is listed in Title 23 of the United 
States Code as an eligible item--rings hollow because the full 
Committee already took steps to ensure that all eligible items listed 
in Title 23 are incorporated into the Eligibility listing found in 
these regulations. The Tribal Caucus believes its approach on this 
issue is more consistent with the ISDEAA.
    With respect to the amount of time for issuing a decision, the 
Tribal Caucus approach would limit the amount of time BIA has to issue 
a response to a maximum of 45 days because the building seasons tribes 
deal with are often extremely short, especially in Alaska and northern 
and mountainous regions of the United States. The 60 days the Federal 
Caucus prefers can effectively push tribal projects off until the 
following year.
    Finally, with respect to the impact on redesign and reallocation 
authority, the Tribal Caucus believes that language should be included 
to clarify that this provision does not amend such authority which is 
otherwise available under the ISDEAA. Indian tribes performing IRR 
Program activities under self-determination contracts and self-
governance agreements have some authority to redesign the program and 
reallocate funding in accordance with 25 U.S.C. 450j(j), 450j-1(o), 
458cc(b). The Tribal Caucus recognizes that there are some limitations 
on this general redesign authority for construction activities. 
However, not all IRR Program activities are construction activities. 
Furthermore, no provision federal law requires tribes to obtain the 
approval of FHWA in advance of reprogramming or reallocating IRR 
Program funds in a manner which is consistent with the ISDEAA. With 
this in mind, the Tribal Caucus feels it is imperative to expressly 
state that the regulatory provision addressing new uses of IRR Program 
funds does not modify or diminish tribal redesign and reallocation 
authority which is otherwise available under the ISDEAA. Absent such a 
qualifying statement, one could incorrectly infer that this regulatory 
provision modifies such tribal redesign and reallocation authority.
Federal View
    New proposed uses of IRR Program funds must be submitted to FHWA 
for approval for several reasons. Title 23 U.S.C. 204(h)(7) authorizes 
the Secretary of Transportation to make eligibility determinations for 
the Federal Lands Highway Program on projects for all funding 
categories, including the IRR Program. Title 49 U.S.C. 101(b) directs 
DOT to ensure the coordination and effective administration of the 
transportation programs of the United States Government. Eligibility 
determinations and use of funds is a crucial component of the effective 
administration of transportation programs. The eligibility list and the 
method for submitting new items for eligibility consideration ensures a 
consistent approach to national IRR transportation issues. The Federal 
position regarding eligibility denials provides for an appeal process 
pursuant to 25 CFR part 2.
    The Federal proposal is as follows:

How Can a Tribe Determine Whether a New Proposed Use of IRR Funds 
Is Allowable?

    (a) A tribe that proposes a new use of IRR program funds must 
submit a written inquiry to BIA and FHWA concerning whether the 
proposed use is eligible under Titles 23 and 25 of the United States 
Code and other applicable provisions of Federal law.
    (b) For eligibility questions that refer to self-determination 
and self-governance contracting and road maintenance, BIA must 
provide a written response to the requesting tribe within 60 days of 
receipt of the written inquiry. For eligibility questions that refer 
to IRR Program, FHWA must provide a written response to the 
requesting tribe within 60 days of receipt of the written inquiry. 
BIA must approve the proposed use if it is authorized under Title 25 
and is related to transportation. FHWA must approve the proposed use 
if it listed as an eligible item in Title 23. To the extent 
practicable and before denying the request, BIA or FHWA consults 
with the IRR Program Coordinating Committee.
    (c) If either BIA or FHWA fails to issue the requesting tribe a 
timely written response to the eligibility inquiry, the proposed use 
will be deemed to be allowable until a determination has been made 
and the written response is provided to the tribe.
    (d) BIA and FHWA will send copies of all eligibility 
determinations to the IRR Program Coordinating Committee and BIA 
regional offices.
    (e) Tribes may appeal denials of a proposed use pursuant to 25 
CFR part 2.

C. Updating the IRR TIP--Subpart D

    The issue is how often the IRR TIP must be updated. The Federal 
text is inserted at Sec. 170.420.
Tribal View
    The Committee developed detailed planning regulations to better 
ensure the development of a comprehensive transportation program 
regardless of whether such program is administered by BIA, on behalf of 
Indian tribes, or is assumed by a tribe under the ISDEAA. Through 
better transportation planning, both tribes and BIA should maximize 
available resources. Only those transportation projects listed on the 
IRR TIP, however, are eligible for IRR construction funds. The Tribal 
Caucus therefore believes it is important: (1) That a specific time 
frame be set out in the IRR regulations governing the frequency with 
which BIA must update the IRR TIP, and (2) that a specific time frame 
be added by which BIA must actually complete the IRR TIP update once it 
has received a revised or amended tribal transportation improvement 
program (TTIP) or tribal priority list from an Indian tribe.
    The Tribal Caucus recommended that the proposed regulation provide 
that updates to the IRR TIP occur on a quarterly basis, or as otherwise 
needed, and further proposed that the updating process, once BIA 
received a tribal request to modify the IRR TIP, be completed by BIA 
within 45 days from the date of receipt, except under unusual 
circumstances. Quarterly updates would ensure that BIA's update of the 
IRR TIP would occur on a regular schedule and would not be overly 
burdensome since it would be similar to the schedule by which State 
TIPS are updated. As proposed by the Tribal version, allowances are 
made for unusual circumstances. Regardless of how frequently an IRR TIP 
is updated, the 45-day limit is reasonable and will better ensure that 
IRR TIPS are accurate.
    The Tribal Caucus recommends and requests public comment on the 
following regulatory provision to accomplish this goal:

How Is the IRR TIP Updated?

    The updating process begins when BIA provides the projected IRR 
funding amounts to each tribe, or an analysis of the existing tribal 
priority list or TTIP. New transportation planning information or 
substantial changes to an IRR tribal project may require an IRR TIP 
update. BIA reviews the programming of proposed projects with the 
Indian tribal government and agreed upon adjustments are made to the 
IRR TIP on a quarterly basis or as otherwise needed. This updating 
process will, except under unusual circumstances, be completed 
within 45 days of receipt by BIA of the updated TTIP or tribal 
priority list submitted by the tribe.
Federal View
    This issue involves the frequency of updating the IRR 
Transportation Improvement Program. Prior to Fiscal Year 2000, BIA 
submitted quarterly updated IRR TIPS to FHWA for review and approval. 
This quarterly procedure often resulted in untimely submissions of IRR 
TIPS to FHWA. This was a result of the overall TIP and Control Schedule

[[Page 51338]]

process, which required involvement of BIA Regional offices, BIA 
Division of Transportation in Albuquerque, and BIA DOT in Washington, 
DC. In addition, many of the quarterly updated TIPS submitted did not 
contain any significant changes to the previously approved TIP (i.e., 
addition or deletion of projects). Therefore, a time-consuming exercise 
was conducted to produce an ``update'' that really did not update the 
TIP. Also, updating TIPS quarterly for 12 BIA Regions imposes an 
additional approximately 70 per cent cost in processing IRR TIPS.
    Beginning in Fiscal Year 2000, FHWA requested that BIA submit TIP 
updates on an annual basis only, with updates submitted as required to 
reflect projects added to or deleted from the current TIP. Minor 
adjustments to funding between various projects, or within the 
activities (Preliminary Engineering, Construction Engineering, 
Construction) of a particular project, were determined to be 
insignificant and did not require the submittal of a TIP update.
    The Federal view is that for Fiscal Year 2002 and beyond, the IRR 
TIP submittal process described above be continued for the following 
reasons:
    (1) The IRR TIP development and submittal process is complex and 
lengthy. Performing four updates in one fiscal year may unnecessarily 
duplicate effort on the part of BIA and tribes, which could be 
performing other programmatic activities.
    (2) The annual IRR Program funding, once established for a Fiscal 
Year, does not vary significantly within that Fiscal Year for a 
particular region or tribe, some minor increases or decreases may 
occur. Therefore, substantial changes to a TIP would not be anticipated 
over the course of a Fiscal Year, and updates would not be necessary on 
a frequent basis.
    (3) Since public involvement process must occur before every TIP or 
TIP update/amendment is approved, fewer amendments would therefore 
decrease the necessity for multiple public involvement meetings for a 
single region's TIP, making the overall TIP approval process faster.
    (4) Limiting the amount of TIPS submitted in a given Fiscal Year 
forces the tribes and BIA regions to conduct better ``up front'' 
planning cooperatively to ensure all tribal priorities are being 
initially included in the TIP. While it is understood that leadership 
changes in a tribe may require mid-year changes to a TIP, these changes 
could be better coordinated to prompt only one amendment per year 
rather than the recommended three per year.
    The Federal view is that IRR TIPS only require updating as 
necessary not quarterly.
    The Federal proposal is as follows:

How Is the IRR TIP Updated?

    The updating process begins when BIA provides the projected IRR 
Program funding amounts to each tribe, or an analysis of the 
existing tribal priority list or TTIP. New transportation planning 
information or substantial changes to an IRR tribal project may 
require an IRR TIP update. BIA reviews the programming of proposed 
projects with the tribes. Agreed upon adjustments are made to the 
IRR TIP following the IRR TIP process defined in this part on an 
annual basis or as otherwise needed.

D. PS&E Approval Authority--Subpart D

    The tribal caucus and Federal caucus disagree on the issue of 
whether a tribe may assume the review and approve plans, specifications 
and estimates. The Federal text is inserted at Secs. 170.480-481.
Tribal View
    The Tribal Caucus position is that the review and approval of 
plans, specifications and estimate (PS&E) packages are activities that 
Indian tribes may assume under self-determination contracts or self-
governance agreements. In fact, the Interior Department has already 
permitted tribal assumption under a self-governance agreement of the 
authority to review and approve PS&E packages in the IRR Self-
Governance demonstration. Similarly, Indian tribes, as public 
authorities, may assume the authority to review and approve PS&E 
packages under a Stewardship Agreement. Moreover, it is the Tribal 
Caucus position that an ISDEAA agreement can either serve as a 
Stewardship Agreement or incorporate an existing Stewardship Agreement 
of the tribe, to enable the tribe to, among other things, review and 
approve PS&E packages.
    The Tribal Caucus acknowledges that all PS&E packages must be 
signed and/or sealed by a licensed professional engineer. However, it 
is the Tribal Caucus position that the extra-statutory ``health and 
safety review'' that the Federal Caucus insists on having simply is not 
required so long as the Indian tribe or tribal organization has 
provided assurances in the contract or agreement that the construction 
will meet or exceed proper health and safety standards, the licensed 
professional engineer approving the PS&E has certified that the plans 
and specifications meet or exceed the proper health and safety 
standards, and BIA receives a copy of this certification. See 25 U.S.C. 
458cc(e)(2) (``In all construction projects performed pursuant to this 
part, the Secretary shall ensure that proper health and safety 
standards are provided for in the funding agreements.'') (Emphasis 
added.) The Tribal Caucus approach is substantially the same as the 
clarification approach recently considered by the Senate Committee on 
Indian Affairs, which remarked: ``[P]roviding tribes flexibility in 
meeting health and safety standards will not limit the ability of BIA 
or FHWA to ensure that the IRR roads and bridges are built safely and 
efficiently. BIA will retain its monitoring and final inspection 
authorities as currently permitted under law * * * Retaining a 
bureaucratic check on every detail of IRR planning and construction is 
unnecessary and creates redundancy and inefficiency.'' Senate Report 
106-406 at pp. 6-7 (Sept. 11, 2000).
    The Tribal Caucus strongly disagrees with the Federal Caucus' 
approach to this issue because it would place unnecessary and 
burdensome requirements on Indian tribes before they would be deemed 
eligible by FHWA to assume PS&E approval authority for IRR projects. As 
proposed by the Federal Caucus, only Indian tribes which meet `the 
requirements of a state as defined in 23 U.S.C. 302(a)' of TEA-21 and 
enter into a tribal IRR Program stewardship agreement with DOT would be 
delegated PS&E review and approval authority for IRR projects. The 
Federal Caucus has not identified in its proposed regulation what FHWA 
requirements an Indian tribe would need to satisfy to demonstrate that 
it has `adequate powers' and is `suitably equipped and organized to 
discharge to the satisfaction of the Secretary [of Transportation] the 
duties required by this title' as set forth in 23 U.S.C. 302. Also, the 
Federal Caucus references 23 U.S.C. 106, 302 and 402 as giving FHWA 
authority to determine which public authorities, including tribes, are 
capable of approving PS&E packages, conducting project audits, project 
closeouts, inspections, and controls. However, sections 106 and 302 by 
their own terms only apply to state transportation departments, and do 
not apply to Indian tribes or the Federal Lands Highway Program. Also, 
section 402 addresses Highway Safety Programs only.
    The Federal Caucus' proposal would require that a tribe also 
negotiate a separate stewardship agreement with DOT, rather than 
permitting the tribe to assume such duties under its self-determination 
contract or self-governance agreement. It is unclear why

[[Page 51339]]

stewardship provisions cannot be included in a self-determination 
contract or self-governance agreement, when such agreements can be used 
to explain the roles and responsibilities of the federal and tribal 
parties to the agreement. The Federal Caucus provision would further 
require that stewardship agreements include provisions for a health and 
safety review by the Secretary of the Interior and contain provisions 
and procedures by which the facility owner may review the PS&E. These 
provisions would place far too much discretion in the hands of FHWA, 
mandate agency oversight where such oversight may not be warranted, and 
increase the regulatory burden on tribes. The Tribal Caucus solution is 
to streamline the process as Congress intended.
    The Tribal Caucus proposes the following two regulatory provisions 
to clarify this issue:

Can a Tribe Review and Approve PS&E Packages for IRR Projects?

    Yes. As a public authority, a tribe may assume review and 
approval authority of PS&E packages under a Stewardship Agreement 
pursuant to a Public Law 93-638 contract or self-governance 
agreement. The Public Law 93-638 contract or self-governance 
agreement may serve as the Stewardship Agreement. Alternatively, a 
tribe without a Stewardship Agreement may assume responsibility to 
review and approve PS&E packages under a self-determination contract 
or self-governance agreement so long as the Indian tribe or tribal 
organization has: (1) Provided assurances in the contract or 
agreement that the construction will meet or exceed proper health 
and safety standards; (2) obtained the advance review of the plans 
and specifications from a licensed professional engineer who has 
certified that the plans and specifications meet or exceed the 
proper health and safety standards; and (3) provided a copy of the 
certification to BIA.

Must All PS&E Packages Be Approved?

    Yes. All PS&E packages must be signed and/or sealed by the 
appropriate licensed professional engineer, and by the appropriate 
official as follows:
    (a) Absent an approved Stewardship Agreement, FHWA approves all 
PS&E packages submitted by BIA;
    (b) Where an approved Stewardship Agreement exists between FHWA 
and the BIA Regional Office, PS&E packages are approved by an 
official in the BIA Regional Office;
    (c) Where an Indian tribe has assumed the responsibility to 
approve PS&E packages for IRR projects, in accordance with the 
question and answer above, the PS&E packages are approved by the 
tribe;
    (d) Where an Indian tribe has not assumed the responsibility to 
approve PS&E packages under paragraph (c) above, PS&E packages are 
approved under paragraph (a) or (b) above, as applicable.
Federal View
    Under 23 U.S.C. 106, 302 and 402 certain activities can be 
delegated to public authorities which have adequate powers and are 
suitably equipped and organized to carry out, to the satisfaction of 
the Secretary, the duties of Title 23. These include Plans, 
Specifications, and Estimate (PS&E) approval, conducting project 
audits, project closeouts, inspections, materials testing, and quality 
control. Moreover, since Public Law 93-638 requires the Secretary to 
assure health and safety, the Secretary must still review the PS&E, 
even if PS&E approval has been delegated to the public authority. It 
follows that the facility owner/maintainer must concur with the 
proposed construction activities. Finally, inclusion of PS&E approval 
and other stewardship provisions in a recent pilot self-governance 
agreement has created a situation where changes to the stewardship 
provisions are requested on a yearly basis. While tribes can enter into 
a stewardship agreement with the Secretary of Transportation, such 
stewardship provisions cannot be included in a self-determination 
contract or self-governance agreement.
    The Federal proposal is as follows:

Can a Tribe Review and Approve PS&E Packages for IRR Projects?

    Yes, a tribe can review and approve PS&E packages for IRR 
projects if the tribe meets the requirements of a state as defined 
in 23 U.S.C. 302 (a) and enters into a tribal IRR Program 
stewardship agreement with the Secretary of Transportation or 
designee.

Who Must Approve all PS&E Packages?

    All PS&E packages must be signed and/or sealed by the 
appropriate licensed professional engineer and by the appropriate 
official as follows:
    (a) Absent an approved IRR Program stewardship agreement, FHWA 
approves all PS&E packages submitted by BIA;
    (b) When an approved BIA regional IRR Program stewardship 
agreement exists, PS&E packages are approved by an official in the 
BIA regional office;
    (c) When a tribe has assumed the responsibility to approve PS&E 
packages for tribal, state, and locally owned IRR facilities through 
a tribal IRR Program stewardship agreement, the tribe approves PS&E 
packages with the consent of the facility owner after a health and 
safety review by the Secretary;
    (d) When a tribe has not assumed the responsibility to approve 
PS&E packages under paragraph (c) above, BIA or FHWA approves PS&E 
packages under paragraph (a) or (b) above, as applicable.

E. IRR Construction Project Reports--Subpart D

    The issue is how to regulate IRR construction project closeouts. 
The Federal text is inserted at Secs. 170.485-489.
Tribal View
    Detailed program oversight regulations have been developed by the 
Committee, with a number of provisions devoted to preparation of the 
IRR construction project close out report. The Federal and Tribal 
Caucuses did not reach consensus on a number of regulatory provisions 
governing the closeout of an IRR construction project. The Tribal and 
Federal Caucuses agreed to revise some regulatory provisions to 
substitute ``IRR construction project report'' in place of ``IRR 
construction project audit'' as the focus of the question and to delete 
regulations addressing an IRR project audit. It was the view of the 
Tribal Caucus that project audits were adequately addressed in existing 
Title I and Title IV regulations implementing the ISDEAA (See 25 CFR 
parts 900 and 1000). In some instances, the proposed regulations were 
corrected to reflect this intent. One regulatory provision, however, 
does not appear to have been modified as the Tribal Caucus believes 
should have been done. As a result, the proposed regulation contains a 
provision relating to an IRR construction project audit. The Tribal 
Caucus believes that the IRR regulations should only address IRR 
construction project closeout reports and omit any discussion of IRR 
project audits. Substitution of the phrase ``construction project 
report'' for the phrase ``project audit'' will accomplish this goal.
    Accordingly, the Tribal Caucus proposes the following regulatory 
provision and requests public comment:

Who Has Final Acceptance of the IRR Construction Project Report?

    (a) With regard to IRR construction projects performed by BIA, 
the Secretary has final acceptance and approval of the IRR 
construction project report.
    (b) With regard to IRR construction projects performed by tribes 
under Public Law 93-638, the signatory authority has final 
acceptance and approval of the IRR construction project report.

    The Tribal Caucus differed with the Federal Caucus on the 
requirement that, as part of an IRR construction project closeout, the 
facility owner must accept the IRR project. It is the Tribal Caucus' 
view that closeout of an IRR construction project, which the 
regulations define as the final accounting of all IRR construction 
project expenditures and closing of the financial books of the Federal 
Government for the project, occurs once the final inspection has been 
completed and the IRR construction project has

[[Page 51340]]

been accepted by the signatory authority for the project, which is the 
entity with final authority to sign the PS&E package.
    Therefore, the Tribal Caucus recommends and requests public comment 
on the following regulatory provision:

When Does a Project Closeout Occur?

    A project closeout occurs after the final project inspection is 
concluded and the IRR project is accepted by the signatory authority 
(the entity with final authority to sign the PS&E package).

    It is the Tribal Caucus position that no regulation is required to 
identify the entity which must conduct the project closeout and prepare 
the IRR construction project closeout report. When an IRR construction 
project is performed by an Indian tribe under a self-determination 
contract or self-governance agreement, Title I and Title IV regulations 
implementing the ISDEAA adequately address the issue of who must 
conduct the project closeout and develop the IRR construction project 
closeout report. For example, 25 CFR 900.130(d) states: ``Upon 
completion of the project, the Indian tribe or tribal organization 
shall provide to the Secretary a reproducible copy of the record plans 
and a contract closeout report.'' The Tribal and Federal Caucuses agree 
on this point. The Tribal Caucus, however, does not believe that the 
Federal Caucus has appropriately described the circumstances under 
which BIA performs the IRR construction project on behalf of a tribe. 
The Federal Caucus supports regulatory text which states that: ``When 
the activity and/or project is conducted using BIA force account, [the] 
Regional Engineer or designee is responsible for closing out the 
project and preparing the report.'' BIA force account is only one of 
several methods available to BIA when it performs the IRR construction 
projects on behalf of tribes. As a result, it is the Tribal Caucus' 
position that no IRR regulatory provision is preferable to the 
incomplete provision proposed by the Federal Caucus.
    The Tribal Caucus believes that the Title I Self-Determination 
regulations (25 CFR part 900) and Title IV Self-Governance regulations 
(25 CFR part 1000) adequately cover the project closeout reporting 
obligations of Indian tribes performing IRR activities under the 
ISDEAA. While it is appropriate for these proposed IRR regulations to 
identify the content of the project closeout report when BIA 
administers the IRR Program for a particular tribe, the regulations 
should leave the content of the IRR construction project closeout 
report to the negotiations between BIA and a tribe when a tribe assumes 
the obligation to prepare the closeout report under an ISDEAA 
agreement. The Tribal Caucus disagrees with the Federal Caucus' 
proposed regulation which mandates that ``all project information must 
be made accessible for the IRR construction project closeout'' when a 
project closeout and preparation of the closeout report is undertaken 
by a tribe under a self-determination contract or self-governance 
agreement.
    It is the Tribal Caucus position that the proposed regulation be 
limited to BIA's preparation of the closeout report and leave the scope 
of project information to be made accessible for the IRR construction 
project closeout, when a tribe assumes such duties under the 
authorities of the ISDEAA, to the negotiation of BIA and the tribe.
    The Tribal Caucus therefore requests public comment on the 
following recommended regulatory provision:

What Information Is Made Available for the Project Closeout?

    If the project closeout and development of project closeout 
report is not contracted or compacted then all project information 
must be made accessible for the IRR construction project closeout. 
Such information may include, but is not limited to: Daily diaries, 
weekly progress reports, sub-contracts, subcontract expenditures, 
salaries, equipment expenditures, etc.

    The Tribal Caucus believes that it is not necessary to identify in 
these regulations the entities which must receive a copy of the IRR 
construction project closeout report. As drafted, however, the proposed 
regulation is incomplete as it only addresses the entities to receive 
the closeout report for IRR construction projects when such projects 
are assumed under a self-determination contract or self-governance 
agreement. The proposed regulation fails to address the obligation of 
BIA to provide the closeout report to the Indian tribal government 
served by the construction project and to appropriate BIA officials, 
such as BIA Regional Engineer, BIA Agency Superintendent or Field 
Officer. The proposed regulation would read as follows:

Who Is Provided a Copy of the IRR Construction Project Closeout Report?

    Projects negotiated under Public Law 93-638, as amended, shall 
specify who will be provided a copy of the closeout report.
    Unless the proposed regulation is corrected in the final regulation 
to identify the recipients of the IRR construction project closeout 
report, regardless of which entity prepares the report, the Tribal 
Caucus position is to delete the provision entirely.
Federal View
    The issue appears to be whether these regulations need to address 
project closeouts and audit. 25 CFR 900.131(b)(10) states that ``The 
Secretary retains the right to conduct final projects inspections 
jointly with the Indian tribe or tribal organization and to accept the 
building or facility.'' A similar provision for self-governance tribes 
is provided in 25 CFR 1000.249(e). While 25 CFR 900.130(d) does contain 
project closeout requirements for self-determination contracts there is 
no similar provision for self-governance tribes in 25 CFR part 1000.
    The Federal proposal is as follows:

Who Has Final Acceptance of the IRR Project Audit?

    The Secretary has final acceptance and approval of the project 
including the IRR project audit.

When Does a Project Closeout Occur?

    A project closeout occurs after the final project inspection is 
concluded and the IRR project is accepted by the facility owner and 
the Secretary.

Who Must Conduct the Project Closeout and Develop the Report?

    (a) The self-determination contract or self-governance agreement 
must specify who is responsible for project closeout and development 
of a final report.
    (b) The Secretary is responsible for closing out the project and 
preparing the report when the project is conducted by the Secretary.

What Information Must Be Made Available for the Project Closeout?

    (a) When the Secretary conducts the project, all project 
information must be made accessible for the IRR construction project 
closeout. Such information may include, but is not limited to: Daily 
diaries, weekly progress reports, subcontracts, subcontract 
expenditures, salaries, equipment expenditures, etc.
    (b) When a tribe conducts the project under a self-determination 
contract or self-governance agreement, all project information must 
be made accessible for the IRR construction project closeout. Such 
information may include but is not limited to: Daily diaries, weekly 
progress reports, subcontracts, subcontract expenditures, salaries, 
equipment expenditures, etc.

Who Is Provided a Copy of the IRR Construction Project Closeout 
Report?

    (a) When the Secretary conducts the project, copies of the IRR 
construction project closeout reports are provided to the affected 
tribes and the Secretary of Transportation.
    (b) When a tribe conducts the project under a self-determination 
contract or self-governance agreement, the contract or agreement 
must specify who will be provided a copy of the closeout report.

[[Page 51341]]

F. Content of Rights-of-Way Documents--Subpart D

    The issue is on use of 25 CFR 169 in these regulations for IRR's as 
authority for rights-of-way over Indian Lands. The Federal text is 
inserted at Secs. 170.501-502.
Tribal View
    The Tribal Caucus is in general agreement with the Federal Caucus 
on the minimum content of a right-of-way document. The Tribal Caucus, 
however, disagrees that the status of the land dictates the content of 
the right-of-way document and strongly disagrees with the Federal 
Caucus' reliance upon and reference to 25 CFR 169 (Rights-of-Way Over 
Indian Lands) in these proposed regulations without appropriate 
qualifications. This is especially so in cases where it is the Indian 
tribe itself which seeks to construct a road across its own trust or 
restricted fee lands.
    Part 169 primarily sets out procedures by which third parties, such 
as railroads, utilities, and state or local governments, obtain rights-
of-ways over reservation lands. Many of the requirements of part 169 
are not applicable to Indian tribes securing rights-of-way for roads on 
their own reservations. For example, 25 CFR 169.4 requires that an 
applicant for a right-of-way apply for permission to survey the land, 
and in connection with the application, must demonstrate to BIA's 
satisfaction its good faith and financial responsibility. Part 169 also 
requires that applicants must also agree to indemnify the United 
States, the owners and occupants of the land against liability for loss 
of life, personal injury and property damage occurring because of 
survey activities caused by the applicant. 25 CFR 169.14 requires an 
applicant for a right-of-way to make a deposit to cover damages and 
consideration for acquiring right-of-way at the time of making the 
application.
    By cross-referencing 25 CFR part 169, the proposed regulations do 
not set out a clear response to the questions posed, but instead 
generate a series of questions about the extent to which part 169 
should apply to the IRR Program. The Tribal Caucus recommends that the 
content of right-of-way documents be uniform and that no distinction be 
made in the right-of-way document regardless of whether the right-of-
way sought is over trust, restricted fee, or fee simple lands.
    Another concern of the Tribal Caucus is that some tribes have 
federal statutory authority to grant rights-of-way across their 
reservations without Secretarial approval under part 169. See, e.g., 64 
Stat. 442, as amended, 75 Stat. 499 Sec. 2. The Tribal Caucus has 
proposed edits to a number of questions which acknowledge that some 
tribes have this authority, without otherwise altering the 
applicability of part 169 where part 169 is appropriate. The Tribal 
Caucus recommends that a provision be added to the regulation which 
makes clear that ``nothing in this part is intended to supersede 25 CFR 
part 169 where part 169 is applicable to the right-of-way at issue.''
    The Tribal Caucus therefore requests public comment on the 
following regulatory provisions:

What Must the Rights-of-way Easement Documents Contain at a 
Minimum?

    (a) All rights-of-way documents shall include the following:
    (1) Identification of the grantor and grantee;
    (2) Legal description of the property acquired for the right-of-
way;
    (3) Right-of-way plat/map of definite location;
    (4) A statement of the term of the right-of-way, whether for a 
specific term of years, whether it includes a right of renewal, or 
whether the grant is in perpetuity;
    (5) Terms and conditions on the grant of the right-of-way, 
including but not limited to, other permissible uses of the right-
of-way, or specific restrictions on the rights-of-way easements;
    (6) Identification of whether the rights-of-way includes the 
right to construct, and/or re-construct the facility; and
    (7) A statement on whether the right-of-way may be transferred 
or assigned, and the terms and conditions under which a transfer or 
assignment may occur.
    (b) Nothing in this part is intended to supersede the 
requirements of 25 CFR part 169 where part 169 is applicable to the 
right-of-way at issue.
    (c) A right-of-way document, if covering maintenance, may 
include an identification of maintenance responsibilities assumed by 
the grantee or retained by the grantor, and whether such rights 
convey with any transfer of the rights-of-way.

    It is the Tribal Caucus' view that procedures for acquiring rights-
of-way over Indian trust lands and Indian lands subject to a restraint 
against alienation (restricted fee lands) should be the same, and 
separate regulatory provisions should address procedures to acquire 
right-of-way interests which traverse fee simple lands which are not 
subject of a federal restraint against alienation. The Tribal Caucus 
further believes that the party who must consent to the granting of a 
right-of-way will also depend upon the status of the land in question. 
In cases where an Indian tribe has granted a use right on its 
reservation to an individual Indian by virtue of a land use assignment, 
the Tribal Caucus believes that acquiring the individual Indian's 
interest for purposes of a right-of-way must be done in accordance with 
applicable tribal law and require the written consent of the tribe. The 
Tribal Caucus believes that this course of action is entirely 
consistent with applicable tribal law regarding such arrangements. The 
Tribal and Federal Caucuses also disagree on the applicability of part 
169 to all rights-of-way over Indian allotted lands. It is the Tribal 
Caucus' view that other federal laws may apply and that the regulation 
should simply reflect that part 169 ``or such other federal law'' as 
may apply to the allotment at issue. As noted above, part 169 primarily 
addresses the procedures which third parties acquire right-of-way 
interests over Indian lands. If the regulations are to govern a tribe's 
administration of the IRR Program, the regulation must be drafted to 
accommodate both BIA and tribal administration of the program, and not 
be focused solely on BIA.
    The Tribal Caucus recommends and requests public comment on the 
following regulatory provisions:

Who Grants a Right-of-way on Indian Trust or Restricted Fee Lands?

    The tribe must consent in writing to the granting of a right-of-
way on any land title to which is held by the tribe or in which the 
tribe holds a beneficial interest. Where an individual Indian has an 
interest in tribal land by virtue of a land use assignment, 
acquisition of the individual Indian's interest for purposes of a 
right-of-way shall be done in accord with applicable tribal law, and 
require the written consent of the tribe. Where an individual Indian 
holds an allotment in trust or subject to a restraint against 
alienation, acquisition of a right-of-way over such allotment must 
be made in accordance with 25 CFR 169, or such other federal law as 
may apply to the allotment at issue.
Federal View
    With respect to questions affecting rights-of-way over Indian 
lands, the existing regulations covered in 25 CFR 169 are adequate. It 
is the Federal view that any issues beyond the scope of the existing 25 
CFR 169 are properly dealt with in a future revision of part 169 and 
are inappropriate for inclusion in this rule or for public comment.
    The Federal proposal is for two additional questions that reference 
25 CFR 169 and reflect the minimum information an easement document 
must contain. They are as follows:

What Must a Right-of-way Easement Document Contain at a Minimum?

    (a) For rights-of-way across Indian trust and restricted lands, 
those documents required by 25 CFR 169 must be submitted; and

[[Page 51342]]

    (b) For lands other than trust or restricted, the following 
information must be submitted:
    (1) Identification of the grantor and grantee;
    (2) A legal description of the property acquired for the right-
of-way;
    (3) A right-of-way plat/map of definite location;
    (4) A statement of the term of the right-of-way, whether for a 
specific term of years, whether it includes a right of renewal, or 
whether the grant is in perpetuity;
    (5) Terms and conditions on the grant of the right-of-way, 
including but not limited to, other permissible uses of the right-
of-way, or specific restrictions on the rights-of-way easements;
    (6) Identification of whether the rights-of-way includes the 
right to construct, and/or re-construct the facility; and
    (7) A statement on whether the right-of-way may be transferred 
or assigned and the terms and conditions under which a transfer or 
assignment may occur.
    (c) If a rights-of-way document covers maintenance it may 
include an identification of maintenance responsibilities assumed by 
the grantee or retained by the grantor and whether such rights 
convey with any transfer of the rights-of-way.

How Are Rights-of-Way Granted on Indian Trust or Restricted Fee 
Lands?

    Grants of right-of-way must be made under the provisions of 25 
CFR 169.

G. Self-Governance Compacts--Subpart E

    This issue is whether under the ISDEAA tribes may assume only 
individual IRR projects or all IRR projects that are not inherently 
Federal functions. The Federal text is inserted at Secs. 170.633-
170.634.
Tribal View
    The Federal Caucus approach appears to be that Indian tribes may 
only assume individual IRR projects. It is the Tribal Caucus' position 
that this approach is inconsistent with TEA-21 or Public Law 93-638, as 
amended, and limits the opportunity for tribes to administer entire IRR 
construction programs under a self-governance agreement.
    TEA-21 specifically includes language that accommodates the ability 
of an Indian tribe to assume under a self-governance agreement all IRR 
Program activities that are not inherently federal functions:

    (3) Contracts and Agreements with Indian tribes--
    (A) In General.--Notwithstanding any other provision of law or 
interagency agreement, program guideline, manual, or policy 
directive, all funds made available under this title for Indian 
reservation roads and for highway bridges located on Indian 
reservation roads to pay for the cost of programs, services, 
functions, and activities, or portions thereof, that are 
specifically or functionally related to the cost of planning, 
research, engineering, and construction of any highway, road, 
bridge, parkway, or transit facility that provides access to or is 
located within the reservation or community of an Indian tribe shall 
be made available, upon request of the Indian tribal government, to 
the Indian tribal government for contracts and agreements for such 
planning, research, engineering, and construction in accordance with 
the Indian Self-Determination and Education Assistance Act.
    (B) Exclusion of Agency Participation.--Funds for programs, 
services, functions, and activities, or portions thereof, including 
supportive administrative functions that are otherwise contractible 
to which subparagraph (A) applies, shall be paid in accordance with 
subparagraph (A) without regard to the organizational level at which 
the Department of the Interior that has previously carried out such 
programs, services, functions, or activities. 23 U.S.C. 202(d)(3). 
[Emphasis added.]

    The Tribal Caucus position is that these part 170 regulations 
should contain provisions that both recognize and appropriately 
accommodate the ability of Indian tribes to assume under a self-
governance agreement all IRR Program activities that are not inherently 
federal functions.
Federal View
    Section 1000.240 of 25 CFR specifies that the IRR construction 
program including projects and activities are subject to 25 CFR 1000, 
subpart K and that these regulations should reference subpart K. 
Sections 1000.87 and 1000.243 require that the agreement specify in 
writing the services, functions, and responsibilities to be assumed by 
the tribe/consortium and those retained by the Secretary. Since an 
FHWA-approved IRR TIP is the document approving the use of IRR Program 
funds for projects and activities, it is appropriate that each project, 
by activity performed by the tribe/consortium, be listed separately in 
the agreement in sufficient detail to adequately describe the work or 
through attachment of the IRR TIP and Control Schedule.
    The Federal proposal is as follows:

What IRR Programs, Functions, Services, and Activities Are Subject 
to the Construction Regulations Set Forth in Subpart K of 25 CFR 
Part 1000?

    All IRR design and construction projects and activities, whether 
included separately or under a program in the agreement, are subject 
to the construction regulations set forth in subpart K of 25 CFR 
part 1000.

How Are IRR Program Projects and Activities Included in the Self-
governance Agreement?

    IRR Program projects and activities are included in the self-
governance agreement as specific line items for each project or 
activity with sufficient detail to adequately describe the work as 
included in FHWA-approved IRR TIP and Control Schedule. Also, each 
agreement must include all other information required under 25 CFR 
1000, subpart K.

H. Content of Stewardship Agreements--Subpart F

    The issues are whether a tribe may enter into a Stewardship 
Agreement with FHWA directly and what a Stewardship Agreement must 
contain. The Federal text is inserted at Secs. 170.701-170.705.
Tribal View
    The Tribal Caucus agrees with the Federal Caucus that a Stewardship 
Agreement is an agreement between FHWA and the BIA Regional Office for 
assumption of FHWA's responsibilities for approval of Plans, 
Specifications & Estimates (PS&E). It was not the intent of the Tribal 
Caucus, however, that by agreeing to this definition, an Indian tribe 
would be precluded from entering into a Stewardship Agreement directly 
with FHWA and incorporate such agreement into its self-determination 
contract or self-governance agreement. Alternatively, a tribe without a 
Stewardship Agreement can assume authority to review and approve PS&E 
packages under a self-determination contract or self-governance 
agreement. There was no consensus on the mechanism by which an Indian 
tribe could assume PS&E approval when such authority had been delegated 
by FHWA to BIA. The Tribal Caucus recognizes the authority of Indian 
tribes to develop their own policies and procedures provided that such 
policies and procedures are consistent with applicable Federal 
requirements.
    The tribal recommendation is to revise the proposed regulation to 
simply list the content of the Stewardship Agreement without 
identifying whether a particular activity is performed by BIA or a 
tribe and to require that the work to be performed will comply with 
``applicable requirements'' (Federal or tribal) rather than stating 
that the work must meet ``prescribed policies and procedures of BIA and 
FHWA.'' To achieve this result, the Tribal Caucus recommends revising 
the proposed regulation to read as follows:

What Must Be Included in an IRR Program Stewardship Agreement?

    An IRR Program Stewardship Agreement must include:
    (a) Description of the planning, design, construction, and 
maintenance activities developed to ensure work meets applicable 
requirements;
    (b) Assumption of review and approval of PS&Es developed for 
Indian Reservation Road (IRR) construction projects and project 
monitoring; and

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    (c) The standards which will be implemented in accordance with 
these regulations.
    Nothing in the Stewardship Agreement shall be construed to 
diminish or effect the rights, privileges and responsibilities of 
Indian tribes or tribal organizations to administer IRR programs 
under a self-determination contract or self-governance agreement, or 
to incorporate these IRR Program activities into such a contract or 
agreement.
Federal View
    23 U.S.C. 204(j) provides that projects selected by tribes from the 
TIP shall be subject to the approval of both the Secretary and the 
Secretary of Transportation. This includes approval of the plans, 
specifications, and estimates. 23 U.S.C. 106 allows the Secretary of 
Transportation to enter into agreements with public authorities that 
address assumption of some of the Secretary's responsibilities. 23 
U.S.C. 302 requires public authorities that participate in the highway 
program have adequate powers and be suitably equipped and organized to 
carry out, to the satisfaction of the Secretary, the duties required in 
Title 23. Prior to TEA-21, this assumption was covered in 23 U.S.C. 
117, certification acceptance. Certification acceptance agreements 
included:
    (1) Identification of which project approvals were delegated to 
BIA;
    (2) Identification of Federal requirements that had to be adhered 
to in BIA's administration of these project authorities and handling of 
exceptions; and,
    (3) BIA processes for providing the internal management of these 
authorities in lieu of Federal involvement.
    FHWA has developed policy on stewardship and program oversight 
instead of issuing regulations. Any such agreements must be consistent 
with this policy. Hence, all such agreements will require FHWA review 
and approval because they deal with FHWA responsibilities.
    The Federal proposal is as follows:

What Is a IRR Program Stewardship Agreement?

    It is an agreement between FHWA and BIA Division of 
Transportation for assuming FHWA's responsibilities for planning, 
design, and construction within the IRR Program.

What Is a BIA Regional IRR Program Stewardship Agreement?

    It is an agreement between FHWA, BIA Division of Transportation 
and a BIA regional office for assuming FHWA's responsibilities of 
the planning, design, and construction within the IRR Program.

Can a Self-Determination Contract or Self-Governance Agreement 
Serve as an IRR Program Stewardship Agreement?

    No. A tribe must use a tribal IRR Program stewardship agreement. 
It is a separate agreement which details the tribe's assuming a 
portion of FHWA's and/or BIA's responsibilities for planning, 
design, and construction within the IRR Program.

What Must Be Included in a BIA Regional or Tribal IRR Program 
Stewardship Agreement?

    At a minimum, these agreements must include:
    (a) BIA regional roads or tribal transportation department 
organization chart;
    (b) An IRR project development and construction flow chart;
    (c) Description of the transportation planning, design, 
procurement, project administration, and construction processes to 
be followed;
    (d) IRR design and construction standards to be used in 
accordance with this part;
    (e) List of roles and responsibilities to be assumed;
    (f) Provisions and process for obtaining the Secretary's health 
and safety reviews of the PS&E and
    (g) Provisions and processes for obtaining the facility owner's 
review of the PS&E.

What Is the Process for Obtaining the Facility Owner's Review of 
the PS&E?

    The process is as follows:
    (a) BIA region or tribe prepares and submits an IRR Program 
stewardship agreement to BIA Division of Transportation. BIA 
Division of Transportation forwards a copy to FHWA;
    (b) BIA and FHWA visit the tribe or BIA region and evaluate the 
capabilities to assume the proposed IRR Program responsibilities;
    (c) FHWA, in writing, advises the tribe or BIA region of any 
applicable changes to the proposed stewardship agreement; and
    (d) After all changes are made, the revised agreement is 
approved by FHWA or its designee.

I. Arbitration Provisions--Subpart H

    The disagreement in this section is about what alternative dispute 
resolution methods are available to the Federal government and tribes 
and how alternative dispute resolution options may be used. The Federal 
question and answer is inserted at Secs. 170.941 through 170.952.
Tribal View
    The ADR approach chosen must be ``appropriate'' for the situation 
and must not derogate the principals and authorities of the ISDEAA and 
its implementing regulations, and recognizes that ADR may be 
appropriate and is authorized in the construction context under the ADR 
Act; 25 U.S.C. 450j(a)(3), 450j(m)(3)(E), 450l (model contract section 
(b)(12)), 450m-1(d), 458cc(e)(1), 458cc(l); 41 U.S.C. 605(d)-(e); 25 
CFR 900.122(b)(5), 900.131(b)(11)(iv), 900.217; 25 CFR 1000.84, 
1000.252, 1000.422, 1000.424; and 48 CFR 33.214.
    The Tribal Caucus would support clarification of this matter as 
follows:

Are Alternative Dispute Resolution Procedures Available to Self-
Determination and Self-Governance Tribes and the Secretary to 
Resolve Disputes Between Them in Performing IRR Public Law 93-638 
Activities?

    Indian tribes and tribal organizations are entitled, at their 
option, to use the appropriate dispute resolution techniques or 
procedures set out in:
    (a) The ADR Act, 5 U.S.C. 571-583;
    (b) The Contract Disputes Act, 41 U.S.C. 601-613; and
    (c) The Indian Self-Determination and Education Assistance Act 
(including the mediation and alternative dispute resolution options 
listed in 25 U.S.C. 450l (model contract section (b)(12)) and the 
implementing regulations.
Federal View
    This issue is about what alternative dispute resolution methods are 
available and how alternative dispute resolution options may be used. 
The Federal view allows arbitration as a different dispute resolution 
option as long as it does not conflict with existing regulations. The 
ADR Act requires the consent of both parties for any ADR technique to 
be used. In addition, it is the Federal Caucus' view that the Contract 
Disputes Act of 1978, 41 U.S.C. 601, as amended, Public Law 95-563, 
applies to Titles I and IV construction activities. The proposed 
regulation drafted by the Committee would improperly change those 
regulations. The Federal Caucus adds ``for non-construction 
activities'' to (c) to make clear that the model contract section is 
inapplicable to construction activities. The Federal Caucus' proposed 
question and answer is as follows:

Are Alternative Dispute Resolution Procedures Available to Self-
Determination and Self-Governance Tribes and the Secretary to 
Resolve Disputes Between Them in Performing IRR Public Law 93-638 
Activities?

    Yes. Except as required in 25 CFR part 900 and part 1000, tribes 
and tribal organizations are entitled to use the appropriate dispute 
resolution techniques or procedures set out in:
    (a) The ADR Act, 5 U.S.C. 571-583;
    (b) The Contract Disputes Act, 41 U.S.C. 601-613; and
    (c) The Indian Self-Determination and Education Assistance Act 
(including the mediation and alternative dispute resolution options 
listed in 25 U.S.C. 450l (model contract section (b)(12)) and the 
implementing regulations for non-construction activities.

    The Department considers the following issues to be outside the 
scope

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of this rulemaking. However, because the Committee discussed these 
issues and attempted to come to consensus on them, they are presented 
to give a full picture of the Committee's deliberations.

J. Advance Funding--Subpart E

    The issue is under what circumstances advance funding is available 
under self-determination contracts and self-governance agreements to 
tribes performing IRR construction and construction-engineering 
activities under these contracts and agreements. The Federal text is 
inserted at Secs. 170.614-618.
Tribal View
    The full Committee reached agreement regarding the advance payment 
of IRR funds to Indian tribal governments performing IRR non-
construction activities under self-determination contracts and self-
governance agreements. However, the Tribal Caucus and the Federal 
Caucus disagreed over the wording of proposed regulations for the 
advance payment of IRR funds to tribal governments performing IRR 
construction and construction-engineering activities under these 
contracts and agreements.
    In the Tribal Caucus' view, the Federal Caucus' proposed advance 
funding provisions would impose restrictions on the awarding of advance 
payments that are unnecessary as a matter of law and unwise as a matter 
of policy. For the reasons explained below, the Tribal Caucus proposes 
that the following two ``advance funding'' provisions also be adopted 
when the full Committee develops the final rule:

May an Indian Tribe or Consortia Receive Advance Payment of IRR 
Funds Under a Self-Determination Contract for Construction 
Activities?

    Yes. BIA and the tribes must negotiate a schedule of advance 
payments as part of the terms of a self-determination contract that 
includes construction or constructing engineering activities. Tribes 
may receive advance payments of IRR funds in annual, semiannual or 
quarterly installments in accordance with 25 CFR 900.132. Indian 
tribes may not expend funds advanced under this section for 
construction and construction engineering on an IRR project prior to 
approval of a PS&E for the project.

May an Indian Tribe or Consortia Receive Advance Payments of IRR 
Funds Under a Self-Governance Agreement?

    Yes. Advance payments must be made to an Indian tribe in annual 
or semi-annual installments at the discretion of the tribe. Advance 
payments shall be made to the tribe in the amount established by the 
IRR funding formula. Within 21 days after apportionment, BIA shall 
transfer all IRR funds advanced under this section to the Office of 
Self-Governance for prompt payment to the tribe or consortia. Indian 
tribes may not expend funds advanced under this section for IRR 
activities that are not included on an approved IRR TIP.

    At a minimum, the advance payment of IRR funds to Indian tribal 
governments must conform to the strict mandates of TEA-21 and the 
ISDEAA and its implementing regulations. Title I of the ISDEAA 
generally provides that ``[u]pon the approval of the self-determination 
contract, the Secretary shall add to the contract the full amount of 
funds to which the contractor is entitled.'' 25 U.S.C. 450j-1(f); see 
also 25 CFR 900.19. Title IV of the ISDEAA requires that self-
governance compacts and annual funding agreements ``shall provide for 
advance payments to the tribes in the form of annual or semiannual 
installments at the discretion of the tribes.'' 25 U.S.C. 458cc(g)(2).
    However, the Title I self-determination regulations contain a 
special advance funding provision for construction contracts which 
requires that BIA provide advance funding to tribes performing 
construction contracts on at least a quarterly basis. See 25 CFR 
900.132. In other words, quarterly advance payments are the minimum 
amounts authorized by law for self-determination construction 
contracts, but BIA and contracting tribes may negotiate an advance 
payment schedule on terms even more favorable to the tribes, based on 
the factors listed in the regulation.
    It makes sense to transfer scarce IRR funds into an Indian tribe's 
IRR Program account as soon as possible so that the money can begin 
drawing interest and the tribe can better manage IRR planning, design, 
construction, and maintenance activities. These IRR regulations should 
promote sensible economic practices and, wherever possible, maximize 
the benefits of scarce IRR funding for the Indian people the IRR 
Program is intended to serve. There are many statutory and accounting 
protections in place, up to and including the threat of criminal 
prosecution, which act to prevent tribes from misusing advance 
payments. Self-determination and self-governance tribes have been 
receiving lump sum advance payments for years to do everything from 
running hospitals to operating housing programs. There is nothing 
special or different about the IRR Program which suggests tribes cannot 
be trusted to behave appropriately when building or maintaining their 
IRR road systems.
    Throughout these negotiations, the Tribal Caucus has sought to 
clarify that BIA is authorized--and, in the case of self-governance 
agreements, required--to make advance payments of IRR funds to Indian 
tribal governments in annual, semiannual or quarterly installments, at 
the discretion of the tribe. Therefore, the Tribal Caucus believes that 
the IRR regulations should authorize, in clear and simple language, the 
advance payment of IRR funds to Indian tribes on the terms that the 
tribes themselves propose. These regulations should also clarify that 
advanced IRR funds must be paid to tribes as soon as possible after the 
start of the fiscal year.
Federal View
    The Federal representatives are aware of the different payment 
provisions contained in Titles I, II, IV, V, and section 108 of the 
Indian Self-Determination and Education Assistance Act, as amended. 
Thus, how and when advance payments are made is based on which type of 
document (contract, grant, agreement) is used. The Committee reached 
agreement on an advance payments provision for section 108.
    For Title I, the Secretary is given discretion to advance funds for 
self-determination contracts under 25 CFR 900.132. It is the Federal 
view that this regulation adequately addresses advance payments for 
construction and construction engineering activities included in a 
self-determination contract. In a design/construct self-determination 
contract, the Federal view is that advance payments for construction 
and construction engineering are based on progress and need as well as 
the negotiated payment schedule. Advancing funds beyond that permitted 
in 25 CFR 900.132 is neither required nor a prudent administration of 
IRR Program funds. Advancing funds for construction and construction 
engineering prior to PS&E approval would create problems if the design 
of the project is never completed and construction does not begin.
    Congress, in Title V provisions (which applies only to the Indian 
Health Service), now authorizes advance payments for construction not 
only based on need, but also based on expenditures.
    For Title IV, the Federal view is to use the statutory language to 
address advance payments and use a separate provision for adjusting for 
additional funds. In addition, the Federal proposal is consistent with 
23 U.S.C. 204(j). Also, 25 CFR 1000.104 already contains procedures for 
adjusting funding amounts negotiated in an agreement

[[Page 51345]]

during the year it is in effect. The Federal representatives see no 
reason to develop an alternative process.
    The Federal proposal is as follows:

May the Secretary Advance Payments of IRR Funds to a Tribe Under a 
Self-Determination Contract for Construction Activities?

    Yes. The Secretary and the tribe must negotiate a schedule of 
advance payments as part of the term of a self-determination 
contract in accordance with 25 CFR 900.132.

What Is a Design/Construct IRR Self-Determination Contract?

    It is a self-determination contract which includes both the 
design and construction of one or more IRR projects.

May the Secretary Advance Payments of IRR Funds to a Tribe Under a 
Self-Determination Design/Construct Contract for Construction 
Activities?

    Yes. When making at least quarterly advance payments for 
construction and construction engineering, the Secretary includes 
IRR Program funds based on progress, need, and the payment schedule 
negotiated under 25 CFR 900.132.

May the Secretary Advance Payments of IRR Funds to a Tribe or 
Consortia Under a Self-Governance Agreement?

    Yes. Advance payments must be made to the tribes/consortia in 
the form of annual or semiannual installments as indicated in the 
agreement.

How Are Advance Payments Made When Additional IRR Funds Are Made 
Available After Execution of the Self-Governance Agreement?

    When additional IRR funds are available, following the 
procedures set forth in 25 CFR 1000.104, tribes can request to use 
the additional funds for approved IRR activities or projects 
contained in a subsequent year of FHWA-approved IRR TIP, and 
immediately have those funds added to the agreement.

K. Contractibility and Compactibility of TEA-21 Programs--Subpart E

    The disagreements under contractibility and compactibility involve 
use of the ``up to 6%'' management funds. The Federal questions and 
answers are inserted at Secs. 170.600 through 170.636.
Tribal View
    The Tribal and Federal Caucuses strongly disagree on several issues 
related to the contractibility/compactibility of TEA-21 programs and 
funds: (1) Exactly what functions are contractible/compactible by 
tribes, and, generally, how is contractibility/compactibility under the 
ISDEAA to be determined? (2) Are programs and funds associated with the 
``6 percent funds'' contractible/compactible under the ISDEAA? (3) May 
BIA reserve, up front, 6 percent of the Federal Highway Trust Fund for 
``non-contractible'' administrative functions and activities, thereby 
rendering such funds automatically unavailable to the tribes? (4) May 
the 6 percent administrative funds be utilized to fund IRR Program 
Management Systems and public hearings for IRR planning and projects?
    In connection with the first three of these questions the tribal 
team proposed a series of nine questions-and-answers as follows:

What IRR Program Functions May Be Assumed by an Indian Tribe in a 
Self-Determination or Self-Governance Agreement?

    At the option of a tribe, all IRR functions, including those 
associated with BIA's 6 percent administrative funds, other than 
inherent federal functions, may be included in a self-determination 
contract or self-governance agreement.

What Is an Inherently Federal Function?

    An inherently Federal function is a Federal function that cannot 
legally be transferred to a self-determination and self-governance 
tribe.

How Will BIA and a Tribe Determine Which IRR Program Functions May 
Be Included in a Self-Determination or Self-Governance Agreement?

    (a) At the request of a tribe, BIA and the tribe will jointly 
identify all of the IRR Program functions that are part of or 
support the program, function, service or activity, or portion 
thereof, which a tribe might wish to assume. BIA shall also identify 
an estimated cost to accompany each of the identified functions.
    (b) BIA shall provide the requested information to the tribe in 
writing no later than 30 days after receipt of the request.
    (c) BIA shall also identify which of these functions it believes 
are inherently federal functions, with the rationale to support its 
conclusion.
    (d) BIA will meet with and negotiate with the tribe the cost of 
the identified assumable functions. BIA and the tribe shall also 
seek to reach agreement about which functions are appropriately 
considered inherently federal.
    (e) BIA shall maintain and update a list of all IRR Program 
functions which Indian tribes assume under Title I or IV of Public 
Law 93-638, as amended. BIA shall distribute this list to each of 
the BIA Regional Offices and it shall be available for review by an 
interested tribe.

What Happens if a Tribe Disagrees With BIA That a Specific Function 
Is Inherently Federal?

    Disagreement over what is an inherent federal function shall be 
dealt with in accordance with the dispute resolution processes set 
out in 25 CFR 900.150 et seq. or self-determination contracts and 25 
CFR 1000.95 and 1000.420 et seq. for self-governance agreements.

What IRR Funds Must Be Transferred to a Tribe Under a Self-
Determination Contract or Self-Governance Agreement?

    At the option of the tribe, the Secretary must provide a tribe 
all funds, including an appropriate portion of the up to 6 percent 
administrative funds that BIA is authorized to retain under TEA-21, 
that are specifically or functionally related to BIA providing IRR 
functions to the tribe without regard to the organizational level 
within BIA where such functions are carried out. The only funds that 
the Secretary is not obligated to transfer to a tribe are residual 
funds.

What Are BIA Residual Funds?

    BIA residual funds are the funds necessary to carry out BIA's 
inherent Federal functions.

How Is BIA's Residual Determined?

    (a) Generally, residuals will be determined through a process 
that is consistent with the overall process used by BIA and in 
consultation with tribes. Residual information will consist of 
residual functions performed by BIA, a brief justification why the 
function is not contractible or compactible, and the estimated 
funding level for each residual function. Each Regional Office and 
the Central Office will compile a single document for distribution 
each year that contains all the residual information of that 
respective office. The development of the residual information will 
be based on the following principles. BIA will:
    (1) Develop uniform residual information to be used to negotiate 
residuals;
    (2) Ensure functional consistency throughout BIA in the 
determination of residuals;
    (3) Make the determination of residuals based upon the functions 
actually being performed by BIA without regard to the organizational 
level to which the functions are being performed;
    (4) Annually consult with tribes on a region-by-region basis as 
requested by tribes/consortia; and
    (5) Notify tribal leaders each year by March 1 of the 
availability of residual information.
    (b) BIA shall use the residual information determined under 
subparagraph (a) as the basis for negotiating with individual 
tribes.
    (c) If BIA and a participating tribe/consortium disagree over 
the content of residual functions or amounts, a participating tribe/
consortium may request the Deputy Commissioner to reconsider 
residual levels for particular programs.
    (1) The Deputy Commissioner must make a written determination on 
the request within 30 days of receiving it;
    (2) The tribe/consortium may appeal the Deputy Commissioner's 
determination to the Assistant Secretary--Indian Affairs;
    (3) The decision by the Assistant Secretary Indian Affairs is 
final for the Department.
    (d) Information on residual functions may be amended if IRR 
Program functions are added or deleted, if statutory or final 
judicial determinations mandate, or if the Deputy Commissioner makes 
a determination that would alter the residual information or funding 
amounts.

[[Page 51346]]

May a Tribe/Consortium Finalize Negotiation of a Self-Determination 
Contract and Self-Governance Agreement Pending an Appeal of 
Residual Functions or Amounts?

    Yes. Pending appeal of a residual function or amount, any tribe 
may decide to include funds in a contract or agreement using the 
residual information that is being appealed. The residual 
information will be subject to later adjustment based on the final 
determination of a tribe's appeal.

What Happens if a Tribe Disagrees With BIA About the Funding It Is 
Entitled To Be Paid?

    Unless otherwise provided above, disagreements over the amount 
of funds that must be included in a contract or agreement shall be 
dealt with in accordance with the dispute resolution processes set 
out in 25 CFR 900.150 et seq. for self-determination contracts and 
25 CFR 1000.95 and 1000.420 et seq. for self-governance agreements.

    The Fiscal Year 1999 Omnibus Consolidated Appropriations Act 
provides that ``not to exceed 6 percent of contract authority available 
to the Bureau of Indian Affairs from the Federal Highway Trust Fund may 
be used to cover the road program management costs of the Bureau * * 
*.'' (Emphasis added.) The argument that this language permits BIA to 
automatically withhold 6 percent of these funds from tribes is flawed. 
First, the phrase ``not to exceed 6 percent'' makes it clear that 
Congress did not intend to grant BIA 6 percent of the funding for its 
administrative activities. Rather, Congress intended to grant the 
Bureau the funds that it needed for such activities, up to 6 percent. 
``Not to exceed 6 percent'' implies not a grant of funds to BIA but 
rather a ceiling on the amount of funds that the agency is permitted to 
use for road program management costs. In light of the goals and 
purposes of the ISDEAA, it is logical that Congress would choose to 
impose a ceiling upon BIA's use of funds, intending that as much 
funding as possible be available to go directly to the tribes. Finally, 
the word ``may'' confirms that Congress had no intention of setting 
aside these funds exclusively for road program management costs.
    Even to the extent that these funds are used for administrative 
costs, the statute does not even hint at the notion of ``non-
contractibility.'' While the Federal Caucus contends that the 6 percent 
funds are reserved for and by BIA for non-contractible functions, the 
Omnibus Act imposes and the ISDEAA and TEA-21 permit no such priority. 
``Road program management costs'' are not non-contractible by 
definition. In light of the fact that 23 U.S.C. 202(d)(3)(B) exists to 
clarify the fact that BIA administrative costs may be contracted or 
compacted by tribes, there is no reason to believe that Congress 
intended to earmark these ``up-to-6 percent'' funds for non-
contractible activities at all, and it certainly could not have 
intended to earmark them exclusively for non-contractible activities.
    In the end, the most powerful testament to Congress' intent that 
the ``up-to-6 percent'' administrative funds be available to tribes on 
the same basis as all other funds is the statement of Senator John 
McCain, who worked on both the ISDEAA and on TEA-21. On March 10, 1998, 
Senator McCain testified regarding an amendment to ``ISTEA'' (the 
former name for TEA-21) that was almost identical to the current Act's 
modified section 202(d)(3)(A). The purpose of Senator McCain's 
testimony was to speak out against the possibility that ``up to 6 
percent of the Indian ISTEA funds will continue to be diverted to pay 
for a BIA bureaucracy * * * Congress has been trying to curb BIA 
bureaucracy and support tribal autonomy ever since 1975 when it first 
enacted the Indian Self-Determination Act, known as Public Law 93-
638.'' Senator McCain further testified as follows:

    In the 1994 amendments to Public Law 93-638, the Congress 
intended to apply these authorities to all funds administered by 
BIA, including ISTEA funds transferred to BIA from the Department of 
Transportation for the benefit of Indian roads and bridges. 
[However, d]espite our clear references in Committee report and 
floor language that this was our intent, BIA has refused tribal 
efforts to fully subject all ISTEA funds to Public Law 93-638. This 
issue has consumed hundreds of hours of federal-tribal negotiations 
since 1994 * * *. ISTEA is the last major BIA account which BIA 
continues to protect as immune from the reach of tribal requests 
under Public Law 93-638 to obtain a direct transfer of the full 
tribal share of these funds * * *. [W]e in Congress intended the 
1994 amendments to Public Law 93-638 to apply to ISTEA funds 
transferred to BIA from the Department of Transportation. They were 
to be treated like all other funds administered by BIA--if a tribe 
wanted to obtain its full share of funds directly, in a flexible and 
accountable contract or compact, it could do so. [Emphasis added.]

    Can the ``up-to-6 percent'' administrative funds be used to fund 
IRR Program Management Systems and public hearings for IRR planning and 
projects? Two points of contention that have arisen serve to underscore 
the disagreement on these issues. Specifically, the Tribal and Federal 
Caucuses disagree as to whether the 6 percent funds may be used to fund 
IRR Program Management Systems and public hearings for IRR planning and 
projects. It is the tribal position that both of these activities are 
the types of administrative functions for which the use of 6 percent 
administrative funds by a contracting or compacting tribe is perfectly 
appropriate.
    In order to implement its views on these issues the Tribal Caucus 
proposed the following provisions:

How Are Public Hearings for IRR Planning and Projects Funded?

    Transportation planning public hearings are funded by 2 percent 
planning or 6 percent administrative funds. Project public hearings 
are funded by construction funds.

How Are IRR Program Management Systems Funded?

    IRR Program management systems shall be funded out of BIA's 6 
percent.

How Will The IRR Management Systems Be Implemented?

    A nationwide management system will be maintained and 
implemented by BIA Division of Transportation using IRR Program 
management funds. BIA Regional Offices will provide the database 
information for this nationwide system. Tribes may collect and 
provide this information in accordance with the terms of a self-
determination contract or self-governance agreement.

    23 U.S.C. 202(d)(3)(A), as modified by TEA-21, explicitly 
authorizes contracting and compacting tribes to receive funding for, 
and carry out, programs ``specifically or functionally related to the 
cost of planning, research, engineering, and construction'' that would 
otherwise be carried out by the Federal Government. Both IRR management 
systems and public hearings to plan for the implementation of IRR 
projects are clearly ``related to the cost of planning, research, 
engineering, and construction'' under TEA-21.
    Section 202(d)(3)(B) specifically clarifies the fact that such 
funds
    are to include those necessary for the carrying-out of 
administrative functions: ``Funds for programs, functions, services, 
and activities, or portions thereof, including supportive 
administrative functions that are otherwise contractible * * *. shall 
be paid in accordance with subparagraph (A) * * *.'' Both public 
hearings and management systems are ``supportive administrative 
functions'' within the purview of this section.
    Neither management systems nor public hearings are precluded from 
being contracted under the above-noted provisions, which reserve funds 
for functions that are ``otherwise contractible.'' The regulations for 
Title I of the ISDEAA define a non-contractible function as one that 
``includes activities that cannot be lawfully carried out by the 
contractor.'' (25 CFR 900.22(e)). Other than illegal activities, such 
functions are limited to those that are

[[Page 51347]]

``inherently Federal''--i.e., either constitutionally non-delegable or 
necessarily vested in federal employees per the DOI Solicitor's 
Opinion. Because neither management systems nor public hearings are 
``inherently Federal,'' neither activity is inherently non-
contractible.
    Neither management systems nor public hearings may be defined up 
front in these regulations as ``non-contractible.'' Rather, their 
contractibility must be determined on a case-by-case basis. The 
regulations for Title IV of the ISDEAA definitively institute this 
requirement:
    The Department will decide what functions are * * * inherently 
Federal on a case-by-case basis after consultation with the Office of 
the Solicitor. The Solicitor has ruled that inherently Federal 
functions cannot be defined and must be determined on a case-by-case 
basis * * *. (65 FR 78690, Dec. 15, 2000).
    Finally, so long as these activities are contractible/compactible 
to tribes, the 6 percent administrative funds are available to tribes 
for carrying them out. It is clear from the legislative history that 
Congress intended the ``up-to-6 percent administrative funds'' 
transferred from the Department of Transportation to BIA to be wholly 
available to contracting and compacting tribes. Thus, because neither 
of the activities in dispute may be defined as ``inherently Federal,'' 
and because both are legally contractible, tribes are not only legally 
entitled to pay for them out of the 6 percent administrative funds, but 
both the ISDEAA and TEA-21 actually mandate that these funds be made 
available to tribes for that very purpose.
Federal View
    The Federal Caucus believes that the issue of program management 
financing is a policy matter between BIA and FHWA. BIA is an agency 
within DOI. Unlike other program areas within BIA, BIA's Division of 
Transportation (BIA DOT) has no general appropriations through DOI for 
administering the IRR Program. All of BIA DOT's funding for 
administration of the IRR Program comes from the Highway Trust Fund. 
BIA DOT's only source of funds to carry out its responsibilities is the 
``not to exceed 6 percent'' of the total funds transferred from FHWA to 
BIA DOT for program management and oversight. The Federal list of IRR 
Program management activities is set forth in this section. All of this 
work is performed by BIA DOT central or regional offices. Costs for 
this work comes from the ``not to exceed 6 percent'' funds FHWA 
transfers to BIA DOT.
    By way of background, since fiscal year 1990, BIA annual 
construction appropriation has provided that ``not to exceed 6 percent 
of the contract authority available to BIA from the Federal Highway 
Trust Fund may be used to cover the road program management costs of 
the Bureau.'' (Emphasis added.) On December 28, 1999, in written 
response to questions presented by the Senate Committee on Indian 
Affairs, the Assistant Secretary--Indian Affairs stated that this 6 
percent limitation applies only to the management and oversight 
activities associated with non-project functions and that the 6 percent 
limitation does not apply to project-related costs of the IRR Program. 
This statement affirmed the longstanding BIA policy to use the 6 
percent management and oversight funds to carry out the Federal 
Government's oversight and trust responsibilities associated with the 
IRR Program.
    Congress has not further defined the term ``road program management 
costs'' in the Department of Interior Annual Appropriation Acts. 
However, in a 1997 survey of state non-project expenditures, FHWA 
determined that States spent approximately 5.5 percent of their general 
funds for non project-related program management costs to administer 
the Federal-aid construction program. Accordingly, BIA has used the 6 
percent for non-project related costs in a manner consistent with the 
states' expenditures. BIA determined that because the States did not 
charge non-project expenditures to a specific project, the 6 percent 
road program management costs should similarly be limited to non-
project related program management expenditures.
    In an opinion to the General Accounting Office dated July 12, 2000, 
the former Department of the Interior Solicitor concluded that FHWA's 
and BIA's administrative use of the term ``road program management 
funds'' is reasonable. The General Accounting Office concurred in this 
opinion in a report dated August 14, 2000.
    There is also statutory support for this interpretation. Title 23 
U.S.C. 202 (d)(3)(B) states that only funds for programs, functions, 
services or activities or portions thereof, including supportive 
administrative functions that are otherwise contractible, shall be paid 
to tribes. The Federal Government has interpreted this provision to 
mean that all noncontractible activities in the IRR Program have to be 
funded using either the 6 percent program management funds or project 
funds. In short, Congress has directed the Secretary to use a 
percentage of the IRR funds to carry out these program management 
activities.
    It is also important for the integrity and effective administration 
of the IRR Program that the use of program management funds be 
consistent throughout the twelve BIA regions. To negotiate a new list 
administrative responsibilities for each self-determination contract or 
self-governance agreement is inefficient and generates unnecessary 
costs to both tribes and
    BIA. Moreover, to have a list of noncontractible items is 
consistent with 25 CFR 1000.243 under which the agreement must specify 
the services to be provided, the work to be performed, and the 
responsibilities of the tribe and the Secretary.
    BIA has never viewed the 6 percent program management costs as a 
ceiling to use the entirety of these funds. Clearly, since the DOI 
Appropriations Act establishes an upper limit of 6 percent, BIA is 
obligated to make the remaining funds available for construction. It 
has been the Secretary of Interior's and the Secretary of 
Transportation's longstanding practice to maximize the amount of IRR 
funding for construction activities by redistributing the unused 
portion of the 6 percent funds to projects at the regional level.

Project-Related Management Costs

    BIA receives funds for project-related management expenses from the 
Highway Trust Fund rather than from BIA's annual appropriations for 
operating Indian programs or for construction. FHWA funds projects 
based on its approval of a Transportation Improvement Program (TIP). 
See 23 U.S.C. 204(a)(3). Based on FHWA-approved TIPS, FHWA allocates 
funds to BIA for IRR Program activities. The applicable statute, 23 
U.S.C. 204(b), states that project-related costs are eligible for IRR 
funding. ``Funds available for * * *. Indian reservation roads shall be 
used by the Secretary * * * to pay for the cost of transportation 
planning, research, engineering, and construction of the highways, 
roads, and parkways * * *.''
    Neither BIA annual road maintenance appropriation nor BIA 
construction appropriation account may be used for IRR construction. 
Therefore, BIA has no discretion to use these funds to manage the IRR 
(Highway Trust Fund) construction program. See Principles of Federal 
Appropriations, Second Edition, Chapter Two, Part B, 1991 WL 645709, 
``If a specific appropriation

[[Page 51348]]

exists for a particular item, then that appropriation must be used and 
it is improper to charge the more general appropriation.''
    Finally, the Secretary remains responsible for ensuring that health 
and safety standards are met on all IRR construction projects. For 
example, those projects administered by self-governance tribes are 
subject to the requirements of section 403 (e)(2) of Public Law 93-638, 
which provides ``[i]n all construction projects performed pursuant to 
this part, the Secretary shall ensure that proper health and safety 
standards are provided for in the funding agreements.'' Since the only 
funds available for IRR projects come from the IRR Program, 25 CFR 
1000.256 directs that the Secretary must retain project funds to ensure 
proper health and safety standards in construction projects.
    In addition, 25 CFR 900.131 and 1000.256 outlines additional 
requirements that the Secretary must perform in order to ensure health 
and safety, such as approving construction standards and monitoring 
design and construction. This includes the Secretary's monitoring for 
health and safety not only during the design phase, but also during 
actual construction and the review of the construction plans and 
specifications.
    The Federal proposal is as follows:

What IRR Program Functions May Be Assumed by a Tribe in a Self-
determination Contract or Self-Governance Agreement?

    All IRR functions and activities that are otherwise contractible 
may be included in a self-determination contract or self-governance 
agreement. (23 U.S.C. 202(d)(3)(B)).

What IRR Project and Program Functions Are Not Otherwise 
Contractible?

    The following IRR functions or activities are non-contractible:
    (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 (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 169;
    (4) Responding to information requests;
    (5) Filing Affidavit of Completion Forms; and
    (6) Performing custodial functions related to storing right-of-
way documents.
    (f) Conducting project development and design under 25 U.S.C. 
900.131:
    (1) Participating in the plan-in-hand reviews as facility owner;
    (2) Reviewing and/or approving plans, specifications, and cost 
estimates (PS&E's) for health and safety assurance as facility 
owner;
    (3) Reviewing PS&E's to assure compliance with all other 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) 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, part 900 and part 1000; and
    (2) Other Title 23 non-project-related management activities.
    (i) BIA Division of Transportation 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 stewardship agreements in 
conjunction with FHWA;
    (8) Developing annual IRR obligation and IRR Program 
accomplishments reports;
    (9) Developing reports on IRR 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, Tribal 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 such as the Intertribal Transportation 
Association regional and national meetings;
    (16) Coordinating with and monitor Tribal 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 transportation organizations, 
such as the Western Association of State Highway and Transportation 
Officials, American Association of State Highway and Transportation 
Officials, National Association of County Engineers, and 
Transportation Research Board;
    (21) Participating in and supporting FHWA Coordinated Technology 
Improvement 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 approve 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; and

[[Page 51349]]

    (31) Performing any other non-contractible IRR Program activity 
included in this part.
    (j) BIA DOT 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 
and Atlas mapping funds to BIA regions;
    (11) Reprogramming unused IRR transportation planning and Atlas 
mapping funds at the end of the fiscal year;
    (12) Monitoring the nationwide obligation of IRR transportation 
planning and Atlas mapping 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) BIA DOT 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 criteria for pavement and congestion 
management systems.
    (l) BIA DOT 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 and
    (5) Developing criteria for bridge management systems.
    (m) BIA DOT 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 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 stewardship agreements;
    (12) Developing quarterly/annual IRR 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 
such as Intertribal Transportation Association regional and national 
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 (tribal members and BIA region/
agency personnel);
    (19) Participating in national transportation organizations 
meetings and workshops;
    (20) Reviewing Coordinated Technology Improvement 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 and approving 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 the application for ERFO 
funds, administration, and oversight of such funds; and
    (27) Participating in IRR Program, process, and product reviews.
    (o) BIA DOT 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 DOT 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 DOT 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 DOT regional offices other responsibilities for 
performing other non-contractible required IRR Program activities 
contained in this part.

How Are the IRR Non-Contractible Program and Project Functions 
Funded?

    (a) All non-contractible program functions are funded by IRR 
Program management and oversight funds; and
    (b) All non-contractible project functions are funded by the IRR 
project construction funds.

May Tribes Include the Cost for Contractible Supportive 
Administrative Functions in Their Budgets?

    Yes. Tribes may use IRR project funds contained in their 
contracts or annual funding agreements for contractible supportive 
administrative functions.

How Does BIA Determine the Amount of Funds Needed for Non-
Contractible Non-Project Related Functions?

    Each fiscal year the Secretary will develop a national and 
regional BIA IRR Program budgets. Within the first quarter of each 
fiscal year the Secretary will send a copy of the national IRR 
budget and BIA regional IRR budget to all tribes.

Are the Unused IRR Program Management Funds Reserved by the 
Secretary Considered Residual Funds?

    No. The unused IRR Program management funds reserved by the 
Secretary are not considered residual funds.

What Happens to the Unused Portion of IRR Program Management Funds 
Reserved by the Secretary?

    Any unused IRR Program management funds are distributed to BIA 
regions using the IRR Relative Need Formula and are used for 
additional construction activities.

Management Systems

    It is appropriate for BIA to use IRR Program management funds for 
developing nationwide management systems because all tribes benefit. 
Using these funds for developing individual tribal management systems 
is not appropriate since only one tribe benefits. Data collection for 
management systems is basically a transportation planning activity and 
thus should be funded using either the 2 percent IRR tribal 
transportation planning or IRR construction funds.
    The Federal proposal is as follows:

How Are IRR Program Management Systems Funded?

    BIA funds IRR Program management systems to develop the 
nationwide IRR

[[Page 51350]]

 Program management systems. If a tribe elects not to use the 
nationwide system, it may develop a tribal management system using 
the 2 percent IRR tribal transportation planning or IRR construction 
funds.

How Will the IRR Management Systems Be Implemented?

    BIA Division of Transportation (BIA DOT) implements and 
maintains nationwide IRR management systems using IRR Program 
management funds. For direct service tribes that chose not to 
contract, BIA regional offices will provide the database information 
for these nationwide systems using IRR construction funds. A tribe 
may collect and must provide this information to the BIA regional 
office using IRR construction funds or 2 percent IRR tribal 
transportation planning funds under a self-determination contract or 
self-governance annual funding agreement.

Public Hearings

    Funding for public hearings during project planning processes 
differs for tribes and for BIA. It is appropriate for tribes to use 
the 2 percent IRR tribal transportation planning funds or IRR 
construction funds for public hearings during the project planning 
process since conducting public hearings for approval of a long-
range plan or TIP is part of the transportation planning process. 
BIA cannot use the 2 percent IRR tribal transportation planning 
funds, so IRR construction funds are the only funds available for it 
to use to conduct public hearings. Conducting public hearings during 
design of construction projects is a project related activity; 
therefore IRR construction funds should be used to pay for these 
hearings.
    The Federal proposal is as follows:

How Are Public Hearings for IRR Planning and Projects Funded?

    Public hearings for IRR planning and projects are funded as 
follows:
    (a) Public hearings for IRR planning:
    (1) Public hearings for TIPS and long-range transportation plans 
conducted by tribes are funded using the 2 percent IRR 
transportation planning or IRR construction funds; and
    (2) Public hearings for the IRR TIP and long-range 
transportation plans conducted by BIA are funded using IRR 
construction funds.
    (b) Public hearings for IRR projects conducted by either tribes 
or BIA are funded using IRR construction funds.

L. Availability of Contract Support Funding--Subpart E

    The issue is how contract support funds are made available to 
tribes under self-determination contracts and self-governance 
agreements. The Federal text is inserted at Sec. 170.635-636.
Tribal View
    The Tribal Caucus believes that contract support funding should be 
made available under self-determination contracts and self-governance 
agreements in a manner consistent with the ISDEAA. Currently, the 
Interior Department is required to make contract support funding 
available for such contracts and agreements in accordance with sections 
106(a) and 403 of the ISDEAA. However, the Interior Department has not 
extended this requirement to IRR Program activities assumed under such 
contracts and agreements.
    The Tribal Caucus proposes the following regulatory provision to 
clarify that contract support costs funds are to be included for IRR 
Program activities assumed under self-determination contracts and self-
governance agreements.

Are Contract Support Funds Available for IRR Program Activities 
Performed Under Public Law 93-638 Contracts?

    Yes, in accordance with sections 106(a)(3) and 403 of Public Law 
93-638 contract support funds are available.
Federal View
    It is the position of the Federal Caucus that the issue of contract 
support funding is not appropriate for inclusion in this rule or for 
public comment since this is a matter in litigation.
    The Federal view is that contract support costs are an eligible 
item for IRR Program funding and need to be included in the cost 
estimates submitted by tribes. Thus, contract support costs may be paid 
from IRR Program funds. Contract support funds are also provided in the 
Secretary's appropriations. The Secretary's appropriations are not 
available for DOT's IRR Program, which is a separate appropriation.
    The Federal proposal is as follows:

Are Contract Support Funds Provided in Addition to the 2 Percent 
(2%) IRR Transportation Planning Funds?

    Contract support costs are an eligible item out of the tribes' 
IRR Program funds allocation and need to be included in a tribe's 
budget.

May Contract Support Costs for IRR Construction Projects Be Paid 
Out of Department of the Interior or BIA Appropriations?

    No.

M. Savings--Subpart E

    The issue is whether tribes performing under self-determination 
contracts or self-governance agreements may keep savings. The Federal 
text is inserted at Sec. 170.620.
Federal View
    The Federal Caucus believes this issue has been resolved by 
legislation and is therefore not an appropriate area for public comment 
or inclusion in this rule.
    Congress changed the provision in Public Law 93-638 regarding 
savings in 1998 to read as follows:
    ``Beginning in fiscal year 1998, and thereafter, where the actual 
costs of construction projects under self-determination contracts, 
compacts, or grants, pursuant to Public Law 93-638, 103-413, or 100-
297, are less than the estimated costs thereof, use of the resulting 
excess funds shall be determined by the appropriate Secretary after 
consultation with the tribes.''
    Thus, the Federal proposal is as follows:

Can Indian Tribes and Tribal Organizations Performing Under Self-
determination Contracts of Self-governance Agreements Keep Savings 
That Result From Their Administration of IRR Projects or an Entire 
Tribal IRR Program?

    Pursuant to 25 U.S.C. 450e-2, where the actual costs of the 
contracts or agreements for construction projects are less than the 
estimated costs, use of the resulting excess funds shall be 
determined by the Secretary after consultation with the tribes.
Tribal View
    The Tribal Caucus' view is that this question and answer improperly 
limit a tribe's discretion to use savings associated with IRR projects 
or programs. The Federal Caucus' question and answer are narrowly 
drafted based on 25 U.S.C. 450e-2, which provides that, for 
construction projects whose actual costs are less than the estimated 
costs, the Secretary is to determine how to use the excess funds after 
consulting with the tribes. There are several problems with the Federal 
proposal to use this statutory language as the basis for a question-
and-answer limiting a tribe's or tribal organization's ability to use 
savings.
    First, this statutory language is focused on construction projects 
and does not address non-construction IRR activities. Thus, savings 
from non-construction activities are not subject to the Secretary's 
discretion as to how they can be used.
    Second, this statutory provision was included as a rider to an 
Interior and Related Agencies Appropriation Act in 1998 and thus 
applies only to funds appropriated under that Act, not to funds 
appropriated under TEA-21 or under the Department of Transportation's 
appropriations.
    Third, the legislative history discussing this provision clarifies 
that it was intended to apply to funds appropriated by Congress for 
school construction activities, all of which are

[[Page 51351]]

appropriated under the Department of the Interior's appropriations.
    Fourth, Title I and Title IV of the ISDEAA contain provisions that 
provide tribes and tribal organizations with considerably more 
flexibility and control over decisions associated with savings 
resulting from those agreements than over the reading of 25 U.S.C. 
450e-2 that the Federal Caucus has incorporated into its proposed 
question and answer. (See, for example, 25 U.S.C. 450j(a)(4); 
450l(c)(Sec. 1(d)(9)). With respect to Title IV self-governance 
agreements, tribes may opt, in accordance with 25 U.S.C. 458cc(l), to 
incorporate any provision of Title I in a self-governance agreement, 
including provisions that allow flexibility associated with savings.
    Finally, and most importantly, in the recently published 
regulations implementing Title IV of the ISDEAA (25 CFR part 1000), the 
Department of the Interior enacted the following regulation regarding 
savings:

Section 1000.400  Can a Tribe/Consortium Retain Savings From Programs?

    Yes. For BIA programs, the tribe/consortium may retain savings for 
each fiscal year during which an AFA is in effect. A tribe/consortium 
must use any savings that it realizes under an AFA, including a 
construction contract:
    (a) To provide additional services or benefits under the AFA; or
    (b) As carryover; and
    (c) For purposes of this subpart only, programs administered by BIA 
using appropriations made to other Federal agencies, such as the 
Department of Transportation, will be treated in accordance with 
paragraph (b) of this section.
    The Tribal Caucus believes that the Department must implement a 
similarly flexible provision relating to savings in these regulations. 
Accordingly, the Tribal Caucus has proposed the following two 
provisions to address this issue:

Can an Indian Tribe or Tribal Organization Performing Under a Self-
determination Contract or Self-governance Agreement Keep Savings 
That Result From its Administration of IRR Project(s) or an IRR 
Program?

    Yes. An Indian tribe or tribal organization may retain savings 
for each fiscal year for which a contract or agreement is in effect. 
A tribe or tribal organization must use any savings that it realizes 
under a contract or agreement, including a construction contract or 
agreement:
    (a) To provide additional services or benefits under the 
contract or
    agreement; or
    (b) As carryover.

Can an Indian Tribe or Tribal Organization Performing Under a Self-
determination Contract or Self-governance Agreement Keep Profits 
Resulting From the Administration of IRR Project(s) or an Entire 
Tribal IRR Program?

    Yes. Indian tribes and tribal organizations may use without 
restriction profits resulting from an IRR project or program 
performed under a fixed-price self-determination contract or a self-
governance agreement.

IV. Procedural Requirements

A. Regulatory Planning and Review (Executive Order 12866)

    This proposed rule is a significant regulatory action because it 
will have an annual effect of $100 million or more on the economy. 
Funding for the IRR Program in fiscal year 2001 is $275 million and is 
expected to increase in future years. The Department of Transportation, 
FHWA, allocates funds to the Department of the Interior, Bureau of 
Indian Affairs. The Bureau of Indian Affairs distributes the funds to 
each of its 12 regions based on the existing funding formula for the 
benefit of tribes in each region. The Office of Management and Budget 
has reviewed this proposed rule under Executive Order 12866.
    This proposed 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 rule sets forth policies and guidelines under which 
Federal Lands Highway Administration, Bureau of Indian Affairs, and 
tribes that contract with the Bureau of Indian Affairs conduct the IRR 
Program. It also proposes 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 proposed rule does not alter the budgetary effects or 
entitlement, grants, user fees, or loan programs or the rights or 
obligations of their recipients.
    This proposed 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, Public Law 93-638, and under the 
Transportation Equity Act for the 21st Century, Public Law 105-178, as 
they relate to the IRR Program which has been in effect since 1983.

B. Regulatory Flexibility Act

    The Department of the Interior 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 proposed 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 funds is approximately $275 million.
    This proposed 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 proposed 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 proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Public Law 104-4, March 22, 
1995, 109 Stat. 48). This proposed 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 proposed rule does not have significant ``takings'' 
implications. This proposed rule does not pertain to ``taking'' of 
private property interests, nor does it impact private property.

F. Federalism (Executive Order 12612)

    This proposed 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 proposed 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.

[[Page 51352]]

H. Paperwork Reduction Act

    This proposed regulation requires an information collection from 10 
or more parties and a submission under the Paperwork Reduction Act of 
1995, Public Law 104-13, is required. An OMB form 83-I has been 
reviewed by the Department and sent to the Office of Management and 
Budget (OMB) for approval. As part of the Department's ongoing effort 
to reduce paperwork burdens, the Department invites the general public 
to take this opportunity to comment to OMB on the information 
collections contained in this proposed rulemaking, as required by the 
Paperwork Reduction Act. Such comments should be sent to the following 
address: Attention--Desk Officer for the Interior Department, Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 27th Street, NW., Washington, DC 20503. Please also send a copy of 
your comments to the Department at the location noted under the heading 
ADDRESSES. OMB has up to 60 days to approve or disapprove the 
information collections but may respond after 30 days; therefore, 
public comments to OMB should be submitted within 30 days in order to 
assure their maximum consideration. Comments should address: (1) 
Whether the proposed collection of information is necessary for the 
proper performance of the functions of the BIA, including whether the 
information shall have practical utility; (2) the accuracy of the BIA's 
burden estimates; (3) ways to enhance the quality, utility, and clarity 
of the information collected; and (4) ways to minimize the burden of 
the collection of information on the respondents, including the use of 
automated collection techniques or other forms of information 
technology. The information collection will be used to enable the BIA 
to better administer the Indian Reservation Roads Program. In all 
instances, the Department has strived to lessen the burden on the 
constituent public and ask for only that information that is absolutely 
essential to the appropriate administration of the programs affected 
and in keeping with the Department's fiduciary responsibility to 
federally-recognized tribes.
    A synopsis of the information collection burdens for regulatory 
revision are provided below. The explanatory summary of each 
information collection section identified will indicate what measurable 
standard has been used as a baseline for further calculations of burden 
hours and operations and maintenance costs to the government. Burden is 
defined as the total time, effort, or financial resources expended by 
persons to generate, maintain, retain, or disclose or provide 
information to or for a Federal agency.

                                             Estimated Burden Hours
----------------------------------------------------------------------------------------------------------------
                                                                                    Burden per
                   CFR section                       Number of     Responses per     response      Total annual
                                                    respondents     respondent        (hours)     burden (hours)
----------------------------------------------------------------------------------------------------------------
170.252  Provide application....................             557               1               4           2,228
170.285  Provide request........................             557               1               2           1,114
170.296  Record review..........................             557               1               1             557
170.302  Form requirement.......................             557               1               4           2,228
170.413  Reporting requirement..................             557               1               2           1,114
170.418  Reporting requirement..................             557               1               1             557
170.428  Form requirement.......................             557               1              40          22,280
170.441  Posting requirement....................             557               1           \1/2\             278
170.442(b)  Recordkeeping req...................             557               1               1             557
170.467  Provide info. for exception............             557               1               1            557
----------------------------------------------------------------------------------------------------------------
[Note: For purposes of this part only, we have used the number 557 as the number of federally-recognized
  respondent tribes that could possibly file for benefits under the Indian Reservation Roads program. The cost
  of reporting and recordkeeping by the public is estimated to be approximately $10/. We have used this figure
  as a medium figure that would indicate the cost of a tribal official or his/her representative in typing a
  form, submitting information for BIA review, compiling reports from information gathered from outside sources,
  and other miscellaneous costs that may be associated with obtaining the information needed to fulfill this
  part's information collection requirements. Only federally-recognized tribes and their employees would be
  involved in this information collection activity.]

Summary

170.252  What Must an Application for an IRRHPP Include?

    This section describes what information must be included in an 
IRRHPP application. While much of this information resides within the 
Bureau of Indian Affairs, some tribal effort will be expended in 
formulating its grant justification in addressing ranking criteria. We 
estimate that it would take tribal officials 4 hours to compile this 
information for BIA review, including the time required to have the 
action documented by an authorized tribal official through letter, 
resolution or similar facility.
    Burden hours = 4  x  557 = 2,228 hours at a cost of $22,280 to the 
public.

170.285  May a Tribe Challenge the Cost-to-Construct, Vehicle Miles 
Traveled, and Population Data BIA Uses in the Relative Need 
Distribution Factor?

    This section allows the tribe to request that the Regional Director 
revise the data that the BIA uses in the Relative Need Distribution 
Factor. This entails tribal submission of a request which includes 
relevant data that would allow the Regional Director to revise such 
data. Supporting data included in this request could take up to 2 hours 
to compile and format into a formal request.
    Burden hours = 557  x  2 = 1,114 hours at a cost of $11,140 to the 
public.

170.296  How Is the IRR Inventory Kept Accurate and Correct?

    This section details the effort expended to update the IRR 
Inventory data on an annual basis. While this is largely a BIA 
function, the tribes may review this data and submit a request to 
provide for errors or omissions to the IRR Inventory. We estimate that 
this tribal review and submission would take approximately 1 hour.
    Burden hours = 557  x  1 = 557 hours and a cost of $5,570 to the 
public.

170.302  What Are the Minimum Requirements for a Tribe's LRTPs?

    This section illustrates the items needed to support a 
transportation plan. While no form exists, the requirements for 
supporting the transportation plan are ennumerated. The compilation of

[[Page 51353]]

this information involves tribal review of its existing records, 
inventory data, strategies for meeting its transportation need, 
coordination efforts with other agencies as appropriate, and official 
endorsement from the designated tribal official. We estimate that this 
review and compilation of documents to complete a LRTP would take 
approximately 4 hours.
    Burden hours = 557  x  4 = 2,228 hours at a cost of $22,280 to the 
public.

170.413  What Is the Tribal Transportation Improvement Program (TTIP)?

    This section requires the tribe to submit a Tribal Transportation 
Improvement Program to the BIA by tribal resolution or tribally 
authorized government action for inclusion into the IRR TIP. The tribal 
official tasked with submitting this report must ensure that the TTIP 
is consistent with the tribal long-range transportation plan and must 
contain all Indian Reservation Roads funded projects. We estimate that 
it would take the responsible tribal official approximately 2 hours to 
complete this task, including the time needed to submit the TTIP to the 
Bureau of Indian Affairs.
    Burden hours = 557  x  2 = 1,114 hours at a cost of $11,140 to the 
public.

170.418  What Is the Tribal Priority List?

    This section describes the tribal priority list as a list of 
transportation projects which the tribe or tribal organization wants 
funded. The list is not financially constrained. The tribal government 
submits this listing to the BIA by official tribal action which we 
estimate would take 1 hour, including the time needed to identify 
tribal projects for inclusion.
    Burden hours = 557  x  1 = 557 hours at a cost of $5,570 to the 
public.

170.428  What May a Long-Range Transportation Plan Include?

    This section illustrates what items may be included in a tribal 
long-range transportation plan. While there is no official form for 
this submission, the section describes how various documents may be 
included. This task includes compiling information on transportation 
modes and routes, trip generation studies, social and economic planning 
documents, measures that address health and safety, review of existing 
transportation systems, cultural preservation planning documents, 
scenic byways and tourism plans, measures that address energy 
conservation considerations, a prioritized list of short-term 
transportation needs, and an analysis of funding alternatives to 
implement plan recommendations. This is the most comprehensive of the 
information collection requirements in this part and we estimate that 
the tribe would spend an average of 40 hours (or 5 working days) to 
complete this task.
    Burden hours = 557  x  40 = 22,280 hours and a cost of $222,800 to 
the public.

170.441  How Must BIA or a Tribe Inform the Public When a Hearing Is 
Held?

    This section describes the minimum standards for posting a public 
notice for hearings concerning the IRR. Since the tribes are already 
familiar with posting requirements for any number of meetings and 
public consultations, we estimate that the burden would not exceed \1/
2\ hour for each posting.
    Burden hours = 557  x  \1/2\ = 278 hours at a cost of $2,780 to the 
public.

170.442  How Is a Public Hearing Conducted?

    Paragraph (b) of this section requires a 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 will be added to the record as appropriate. As the tribes are 
already familiar with record of hearing requirements for other public 
meetings and consultations, we estimate that the burden would not 
exceed 1 hour for each hearing.
    Burden hours = 557  x  1 = 557 hours at a cost of $5,570 to the 
public.

170.467  When Can a Tribe Request an Exception From the Design 
Standards?

    This section describes what the engineer of record must submit to 
request an exception from the design standards in Appendix B of this 
subpart. The documentation required would include appropriate 
supporting data, sketches, details, and a justification based on 
engineering analysis. We estimate that an experienced engineer could 
compile the necessary documents and make a justification for an 
exemption within 1 hour.
    Burden hours = 557  x  1 = 557 hours at a cost of $5,570 to the 
public.

I. National Environmental Policy Act

    The Department 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 negotiated 
rulemaking process of developing this rule. 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 newsletter and other 
mailings, provided updates at other transportation related meetings, 
and sent periodic letters to tribal leaders. We have evaluated any 
potential effects on federally recognized Indian tribes and have 
determined that there are no potential adverse effects. The proposed 
rule expands tribal participation in and responsibilities for various 
transportation-related activities of the IRR program. We are continuing 
to consult with tribal governments and tribal organizations as part of 
the negotiated rulemaking process throughout the comment period after 
publication of this proposed rule.

K. Clarity of This Rule

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. In addition to the comments requested 
above, we invite your comments on how to make this proposed rule easier 
to understand, including answers to questions such as the following:
    (1) Are the requirements in the rule clearly stated?
    (2) Does the rule contain technical language or jargon that 
interferes with its clarity?
    (3) Does the format of the rule (grouping and order of sections, 
use of headings, paragraphing, etc.) aid or reduce its clarity?
    (4) Is the description of the rule in the SUPPLEMENTARY INFORMATION 
section of the preamble helpful in understanding the rule?
    (5) What else could we do to make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 `C' Street, NW., Washington, DC 20240. 
You may

[[Page 51354]]

also e-mail comments concerning the Department's handling of Executive 
Order 12866 in this rulemaking to this address: [email protected].

Rulemaking Analysis and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in docket and will be 
considered to the extent practicable. In addition to the late comments, 
we will also continue to file relevant information in the docket as it 
becomes available after the comment closing date. Interested persons 
should continue to examine the docket for new material.

List of Subjects in 25 CFR Part 170

    Highways and roads, Indians-lands.

    Dated: July 18, 2002.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.

    For the reasons stated in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, proposes to revise 25 CFR part 170 
as follows:

PART 170--INDIAN RESERVATION ROADS PROGRAM

Subpart A--General Provisions and Definitions

Sec.
170.1   What is the authority for this part?
170.2   What is the purpose and scope of this part?
170.3   What is the Federal Government's Indian Reservation Roads 
policy?
170.4   Do other requirements apply to the IRR Program?
170.5   What is the effect of these regulations on existing tribal 
rights?
170.6   What are definitions used in this part?

Subpart B--Indian Reservation Roads Program Policy and Eligibility

Consultation, Collaboration, Coordination

170.100  What does ``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   Does the Secretary of the Interior consult with tribal 
governments during the formulation of the annual BIA budget process?
170.105   Must the Secretary consult with tribal governments before 
spending IRR funds?
170.106   What funds are available for consultation, collaboration, 
and coordination activities?
170.107   When must State governments consult with tribes and tribal 
organizations?
170.108   Should planning organizations and local governments 
consult with tribal governments when conducting planning for 
transportation projects?
170.109   How do the Secretaries prevent discrimination or adverse 
impact?
170.110   How can State and local governments prevent discrimination 
or adverse impact?
170.111   What can a tribe do if discrimination or adverse impacts 
occur?
170.112   How can tribes and State and government agencies enhance 
consultation, collaboration, and coordination?

Eligibility for IRR Funding

170.114  What activities may be funded with IRR funds?
170.115   What activities are not eligible for IRR Program funding?
170.116   How can a tribe determine whether a new proposed use of 
IRR funds is allowable?

Use of IRR and Cultural Access Roads

170.120   What restrictions apply to the use of an Indian 
Reservation Road (IRR's)?
170.121   What is a cultural access road?
170.122   Who may designate a road as a cultural access road?
170.123   May cultural access roads be included in the IRR 
Inventory?
170.124   What is the significance of designating a road as a 
cultural access road?
170.125   Can a tribe close a cultural access road?
170.126   Can a tribe designate a non-tribal road a cultural access 
road?

Seasonal Transportation Routes

170.130  What are seasonal transportation routes?
170.135   Can IRR Program funds be used to build seasonal 
transportation routes?
170.136   Can seasonal transportation routes be included in the IRR 
system inventory?
170.137   Are there standards for seasonal transportation routes?
170.138   Does construction of a seasonal transportation route 
require rights-of-way or use permits?

IRR Housing Access Roads and Toll Roads

170.140   What is the definition of an IRR housing access road?
170.141   What is the definition of an IRR housing street?
170.142   Are IRR housing access roads and housing streets eligible 
for IRR Program funding?
170.143   How are IRR housing access roads and housing street 
projects funded?
170.144   Can tribes use Federal-aid highway funds, including IRR 
funds, for toll and ferry facilities?
170.145   How does a tribe initiate construction of a toll highway, 
bridge or tunnel?
170.146   What is the Federal share of a toll highway, bridge or 
tunnel project?
170.147   How does a tribe initiate construction of ferry boats and 
ferry terminal facilities?
170.148   How can tribes find out more information about designing 
and operating a toll highway, bridge or tunnel?

Recreation, Tourism, Trails

170.150  Are Federal funds available for a tribe's recreation, 
tourism, and trails programs?
170.151   How can tribes access non-IRR Federal funds for their 
recreation, tourism, and trails programs?
170.152   Can IRR Program funds be used for recreation, tourism, and 
trails programs?
170.153   What types of activities may tribes perform under a 
recreation, tourism, and trails program?
170.154   Can roads be built in roadless and wild areas?

Highway Safety Functions

170.155  What Federal funds are available for a tribe's highway 
safety activities?
170.156   How can tribes obtain funds to perform highway safety 
projects?
170.157   How can IRR funds be used for highway safety and impaired 
driver initiatives?
170.158   What types of activities are eligible as highway safety 
projects?
170.159   Are other funds available for a tribe's highway safety 
efforts?

Non-Road Transportation

170.160  Can IRR Program funds be used for construction of runways, 
airports, and heliports?
170.161   Can IRR Program funds be used for construction of airport 
and heliport access roads?
170.162   Are funds available to construct airports, heliports, and 
runways?

Transit Facilities

170.163  What is transit?
170.164   What is a tribal transit program?
170.165   Are IRR Program funds available for tribal transit 
programs?
170.166   How do tribes identify transit needs?
170.167   What Federal funds are available for a tribe's transit 
program?
170.168   May tribes or tribal organizations use IRR funds as 
matching funds for other transit grants or programs?
170.169   What transit facilities and related activities that 
support tribal transit programs are eligible for IRR funding?
170.170   May BIA use IRR funds as matching funds for other transit 
grants or programs?

IRR Program Coordinating Committee

170.171  What is the IRR Program Coordinating Committee?

[[Page 51355]]

170.172   Who are members of the IRR Program Coordinating Committee?
170.173   What are the responsibilities of the IRR Program 
Coordinating Committee?
170.174   How often will the IRR Program Coordinating Committee 
meet?
170.175   How does the IRR Program Coordinating Committee conduct 
business at its meetings?
170.176   How will the IRR Program Coordinating Committee be funded?
170.177   How must the Committee keep the Secretary and the tribes 
informed of the Committee's accomplishments?

Indian Local Technical Assistance Program (LTAP)

170.178   What is the Indian Local Technical Assistance Program?
170.179   How does the Indian LTAP work?
170.180   How is the Indian LTAP funded?
170.181   How do tribes receive information about opportunities 
under the Indian LTAP?
170.182   How are Indian LTAP grant, cooperative agreement, and 
contracting recipients selected?
170.183   Can tribes or tribal organizations enter into a contract 
or agreement for Indian LTAP funds under the ISDEAA?
170.184   What services do Indian LTAP centers provide?
170.185   How does a tribe obtain services from an Indian LTAP 
center?
170.186   Do Indian LTAP centers offer similar services provided by 
State LTAPs?
170.187   What can tribes do if LTAP services are unsatisfactory?
170.188   How are Indian LTAP centers managed?
170.189   What does the Indian LTAP center advisory committee do?
170.190   How are tribal advisory committee members selected?
170.191   How are tribal representatives nominated and selected?
170.192   Who reviews the performance of Indian LTAP centers?

LTAP-Sponsored Education and Training Opportunities

170.193  What LTAP-sponsored transportation training and educational 
opportunities exist?
170.194  Where can tribes get scholarships and tuition for 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

170.225  How are IRR Program funds allocated?
170.226   What is the process to allocate IRR Program funds?
170.232   How does BIADOT allocate and distribute 2% Transportation 
Planning funds?

Tribal Transportation Allocation Methodology for IRR Construction

170.235  How does BIA allocate IRR construction program funds to the 
tribes?
170.236   Does the Relative Need Distribution Factor allocate 
funding among the individual tribes, or only to the Regions?

IRR High Priority Project (IRRHPP) Program

170.245   What is the IRR High Priority Project (IRRHPP) Program?
170.246   How is an emergency/disaster defined?
170.247   What funding levels are available to the IRRHPP Program?
170.248   How will BIA and FHWA rank and fund IRRHPP project 
applications?
170.249   Is there a limit on the amount of IRRHPP funding available 
for a project?
170.250   May an IRRHPP project be phased over several years?
170.251   How do tribes apply for IRRHPP?
170.252   What must an application for an IRRHPP include?
170.253   Are there any transportation activities for which IRRHPP 
funds cannot be used?
170.254   Who ranks the IRRHPP projects?
170.255   What is the IRRHPP Award list?
170.256   What is the timeline for the IRRHPP, other than emergency/
disaster projects, for any given fiscal year?
170.257   How does the award of an emergency/disaster project 
application affect projects on the IRRHPP Award List?

Population Adjustment Factor (PAF)

170.263   What is the PAF?
170.264   What is the distribution factor?
170.265   What funding levels are available for distribution based 
on the PAF?
170.266   What is the Minimum Base Allocation (MBA)?
170.267   What population data is used to determine the PAF?

Relative Need Distribution Factor

170.270   What is the Relative Need Distribution Factor?
170.271   What is the Cost-to-Construct component in the Relative 
Need Distribution Factor?
170.272   What is the Cost-to-Construct for an individual tribe?
170.273   What is the BIA methodology of estimating construction 
costs for transportation facilities?
170.274   How may BIA and FHWA revise the method for calculating the 
Cost-to-Construct component of the Relative Need Distribution 
Factor?
170.275   What is the source of the construction cost used to 
generate the CTC?
170.276   Do all IRR facilities identified in the IRR Inventory 
count in the Relative Need Distribution Factor at 100% of their CTC 
and VMT?
170.278   What is the VMT component of the Relative Need 
Distribution Factor and how is it calculated?
170.279   What IRR route segments are used to calculate VMT?
170.282   What is the Population component of the Relative Need 
Distribution Factor and how is it determined?

General Data Appeals

170.285  May a tribe challenge the Cost-to-Construct, Vehicle Miles 
Traveled, and Population data BIA uses in the Relative Need 
Distribution Factor?
170.286   When may a tribe submit a Relative Need Distribution 
Factor data correction request?
170.287   When must a data correction request be approved?
170.288   How does a tribe appeal a disapproval from the Regional 
Director?

IRR Inventory and Long-Range Transportation Planning (LRTP)

170.290   How is the IRR Inventory used in the Relative Need 
Distribution Factor?
170.291   How is the IRR inventory developed?
170.292   Are all facilities included in the IRR Inventory used to 
calculate CTC?
170.294   Is there a difference for funding purposes between the old 
BIA Roads Inventory and the IRR Inventory?
170.295   Who is responsible for maintaining the National IRR 
Inventory Database?
170.296   How is the IRR Inventory kept accurate and current?
170.297   Is transportation planning included in the IRR Inventory 
and IRR Transportation Improvement Program (TIP)?
170.298   Why exclude transportation planning from the TIP and the 
IRR Inventory?
170.299   What are the responsibilities of the IRR Program 
Coordinating Committee for funding issues?

Long-Range Transportation Planning

170.300  How does the LRTP process relate to the Relative Need 
Distribution Factor?
170.301   Are there cost constraints in the transportation needs 
identified in the LRTP?
170.302   What are the minimum requirements for a tribe's LRTPs?
170.303   Are all transportation projects identified on the tribe's 
LRTP used to calculate the tribe's allocation of the national 
allocation?

Flexible Financing

170.350  May tribes use flexible financing to finance IRR 
transportation projects?
170.351   How may tribes finance IRR transportation projects that 
secure payment with IRR funds?
170.352   Can the Secretary of Transportation execute a federal 
credit instrument to finance IRR projects?
170.353   Can a tribe use IRR funds as collateral?
170.354   Can a tribe use IRR funds to leverage other funds?
170.355   Can BIA regional offices borrow IRR funds from each other 
to assist in the financing and completion of an eligible IRR 
project?

[[Page 51356]]

170.356   Can a tribe use IRR funds to pay back loans?
170.357   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--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 transportation planning functions and activities must 
BIA perform for the IRR Program?
170.402   What transportation planning functions and activities must 
tribes perform under a self-determination contract or self-
governance agreement?
170.403   Who performs transportation planning for the IRR Program?
170.404   What IRR funds can be used for transportation planning?
170.405   How must tribes use planning funds?
170.406   Can IRR construction funds be used for transportation 
planning activities?
170.407   Can IRR 2 percent planning funds be used for road 
construction and other projects?
170.408   What happens to 2 percent planning funds unobligated after 
August 15?
170.409   What is pre-project planning?
170.410   How is the IRR Program transportation planning funded?
170.411   What is the State Transportation Improvement Program 
(STIP)?
170.412   What is the Indian Reservation Roads Transportation 
Improvement Program (IRR TIP)?
170.413   What is the Tribal Transportation Improvement Program 
(TTIP)?
170.414   Must the eligible projects on the tribal TIP be included 
in the IRR TIP?
170.415   What happens to the tribal TIP after eligible projects are 
included in the IRR TIP?
170.416   What are the responsibilities of the BIA prior to the IRR 
TIP being included in the STIP?
170.417   How are projects placed on the TTIP and IRR TIP?
170.418   What is the tribal priority list?
170.419   What is the IRR TIP annual update?
170.420   How is the IRR TIP updated?
170.421   Should the IRR TIP be coordinated within the STIP time 
frames?
170.422   When may the Secretary amend the IRR TIP?
170.423   How is the IRR TIP amended?
170.424   Is public involvement required in the development of the 
IRR TIP?
170.425   How does public involvement occur in the development of 
the IRR TIP?
170.426   What happens after the IRR TIP is approved?
170.427   What is a long-range transportation plan?
170.428   What may a long-range transportation plan include?
170.429   What is the purpose of long-range transportation planning?
170.430   How does BIA or a tribe involve the public in developing 
the IRR long-range transportation plan?
170.431   How is the IRR long-range plan developed and approved?
170.432   How is the tribal long-range transportation plan used and 
updated?
170.433   When does BIA update the IRR TIP?
170.434   When may the Secretary amend the IRR TIP?
170.435   How does BIA or a tribe solicit public participation 
during the development of the IRR TIP?
170.436   What happens after the IRR TIP is approved?

Public Hearings

170.437  What are the purposes and objectives of public hearings for 
the IRR TIP, long range transportation plan, and IRR projects?
170.438   When is a public hearing for IRR TIP, long-range 
transportation plan or project held?
170.439   How are public hearings for IRR planning and projects 
funded?
170.440   How does BIA or the tribe determine the need for a public 
hearing?
170.441   How is the public informed when no public hearing is 
scheduled?
170.442   How must BIA or a tribe inform the public when a hearing 
is held?
170.443   How is a public hearing conducted?
170.444   How are the results of a public hearing obtained?
170.445   Can a decision be appealed?

IRR Inventory

170.446   What is the IRR inventory?
170.447   How is the IRR inventory used?
170.448   How is the IRR inventory database amended?
170.449   How are transportation facilities added to or deleted from 
the IRR inventory?
170.450   What facilities can be included in the IRR inventory?
170.451   How accurate must the IRR road inventory database be?
170.452   What are the standards for IRR atlas maps?
170.453   What is a strip map?
170.454   How are strip maps used?
170.455   What standards must IRR inventory strip maps meet?
170.456   What is functional classification?
170.457   What are the functional classifications of the IRR 
Program?
170.458   How are functional classifications used in the IRR 
Program?
170.459   How is the surface type determined for an IRR road 
project?
170.460   What is a proposed IRR transportation facility?

Environment and Archeology

170.461  What are the archeological and environmental requirements 
for the IRR Program?
170.462   Can IRR funds be used for required archeological and 
environmental compliance work?

Design

170.464  What design standards are used in the IRR Program?
170.465   May BIA use FHWA-approved State or tribal design 
standards?
170.466   How are these standards used in the design of IRR 
projects?
170.467   When can a tribe request an exception from the design 
standards?
170.468   If BIA or FHWA denies a design exception, can that 
decision be appealed?
170.469   How long does BIA or FHWA have to approve or decline a 
design exception request by a tribe?

Construction and Construction Monitoring and Rights-of-Way

170.472  What road and bridge construction standards are used in the 
IRR Program?
170.473   What standards must be used for intermodal projects?
170.474   May BIA use FHWA-approved State or tribal road and bridge 
construction standards?
170.475   How will BIA monitor the IRR project during construction?
170.476   Is tribal consultation required in order to change a 
construction project?
170.477   Who conducts inspections of IRR construction projects 
under a self-determination contract or self-governance agreement?
170.478   What is quality control and who performs it?
170.479   What IRR construction records must tribes and BIA keep?
170.480   Can a tribe review and approve plans, specification and 
estimate (PS&E) packages for IRR projects?
170.481   Who must approve all PS&E packages?
170.482   How can the plans, specifications, and estimates of an IRR 
project be changed during construction?
170.483   What is the final inspection procedure for an IRR 
construction project?
170.484   How is construction project closeout conducted?
170.485   Who has final acceptance of the IRR project audit?
170.486   When does a project closeout occur?
170.487   Who must conduct the project closeout and develop the 
report?
170.488   What information must be made available for the project 
closeout?
170.489   Who is provided a copy of the IRR construction project 
closeout report?
170.490   Will projects negotiated under Public Law 93-638 specify 
who will be provided a copy of the closeout report?
170.491   Who prepares the IRR construction project closeout report?
170.500   What provisions apply to acquiring IRR Program rights-of-
way over trust or restricted lands?

[[Page 51357]]

170.501   What must a right-of-way easement document contain at a 
minimum?
170.502   How are rights-of-way granted on Indian trust or 
restricted fee lands?

Program Reviews and Management Systems

170.510  What are BIA IRR Program reviews?
170.511   What is an IRR process review of a BIA regional office?
170.512   What happens with the information gathered from the IRR 
process review?
170.513   What happens when the review process identifies areas for 
improvement?
170.514   Are management systems required for the IRR Program?
170.515   How are IRR Program management systems funded?
170.516   How will the IRR management systems be implemented?

Appendix A to Subpart D--Archeological 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

170.600  What IRR Program functions may be assumed by a tribe in a 
self-determination contract or self-governance agreement?
170.601   What IRR project and program functions are not otherwise 
contractible?
170.602   How are the IRR non-contractible program and project 
functions funded?
170.603   May tribes include the cost for contractible supportive 
administrative functions in their budgets?
170.604   How does BIA determine the amount of funds needed for non-
contractible non-project related functions?
170.605   Are the unused IRR Program management funds reserved by 
the Secretary considered residual funds?
170.606   What happens to the unused portion of IRR Program 
management funds reserved by the Secretary?
170.608   May IRR Programs be contracted under the ISDEAA?
170.609   What are consortium contracts/agreements?
170.610   What must BIA include in the notice of availability of 
funds?
170.611   Can the Secretary transfer funds to tribal governments 
before issuing a notice of funding availability?
170.612   Can a tribe enter into a self-determination contract or 
self-governance agreement that exceeds one year?
170.613   May a tribe receive advance payments of IRR funds for non-
construction activities?
170.614   May the Secretary advance payments of IRR funds to a tribe 
under a self-determination contract for construction activities?
170.615   What is a design/construct IRR self-determination 
contract?
170.616   May the Secretary advance payments of IRR funds to a tribe 
under a self-determination design/construct contract for 
construction activities?
170.617   May the Secretary advance payments of IRR funds to a tribe 
or consortia under a self-governance agreement?
170.618   How are advance payments made when additional IRR funds 
are made available after execution of the self-governance agreement?
170.619   May a self-determination or self-governance tribe include 
a contingency in its proposal budget?
170.620   Can Indian tribes and tribal organizations performing 
under self-determination contracts of self-governance agreements 
keep savings that result from their administration of IRR projects 
or an entire tribal IRR Program?
170.621   How do the ISDEAA's Indian preference provisions apply?
170.622   Do tribal preference and Indian preference apply to IRR 
funding?
170.623   What protections does the government have if a tribe fails 
to perform?
170.624   What activities may the Secretary review and monitor?
170.625   If a tribe incurs unforeseen construction costs, can it 
get additional funds?
170.626   When may BIA use force account methods in the IRR Program?
170.627   What regulations apply to BIA force account project 
activities?
170.628   How do legislation and procurement requirements affect the 
IRR program?
170.630   What regulations apply to waivers?
170.631   How does a tribe request a waiver of a Department of 
Transportation regulation?
170.632   Is technical assistance available for self-determination 
contracts and self-governance agreements under the ISDEAA?
170.633   What IRR programs, functions, services, and activities are 
subject to the construction regulations set forth in subpart K of 25 
CFR part 1000?
170.634   How are IRR program projects and activities included in 
the self-governance agreement?
170.635   Are contract support funds provided in addition to the 2 
percent (2%) IRR transportation planning funds?
170.636   May contract support costs for IRR construction projects 
be paid out of Department of the Interior or BIA appropriations?

Subpart F--Program Oversight and Accountability

170.700   What is the IRR Program stewardship plan?
170.701   What is an IRR Program stewardship agreement?
170.702   What is a BIA regional IRR Program stewardship agreement?
170.703   Can a self-determination contract or self-governance 
agreement serve as an IRR program stewardship agreement?
170.704   What must be included in a BIA regional or tribal IRR 
Program stewardship agreement?
170.705   What is the process for obtaining the facility owner's 
review of the PS&E?
170.706   Can a direct service tribe and BIA region sign a 
Memorandum of Understanding?
170.707   Are there licensing requirements to ensure standards are 
met under the IRR Program?
170.708   Must an IRR PS&E be approved before proceeding to 
construction?

Subpart G--BIA Road Maintenance

170.800   What Is IRR Transportation Facility Maintenance?
170.801   Who owns IRR Transportation Facilities?
170.802   How is BIA Road Maintenance Program related to the IRR 
Program?
170.803   How is road maintenance funded?
170.804   What is the BIA Road Maintenance Program?
170.805   What facilities are eligible for maintenance and operation 
under the BIA Road Maintenance Program?
170.806   Is maintenance required on facilities built with federal 
funds?
170.807   Do BIA or the tribes have to perform all of the IRR 
facility maintenance?
170.808   What activities are eligible for funding under the BIA 
Road Maintenance Program?
170.809   What is an IRR TFMMS?
170.810   What must an effective IRR TFMMS include at a minimum?
170.811   Can Maintenance Program funds be used to upgrade IRR 
facilities?
170.812   Can tribes enter into a self-determination contract or 
self-governance agreement for the BIA Road Maintenance Program?
170.813   To what standards must an IRR transportation facility be 
maintained?
170.814   Can BIA Road Maintenance funds be used for heliport 
facilities?
170.815   What happens if a facility is not being maintained due to 
lack of funds?
170.816   Must IRR bridge inspections be coordinated with tribal and 
local authorities?
170.817   What are the minimum qualifications for certified bridge 
inspectors?
170.818   Must bridge inspection reports be reviewed?
170.819   How often are IRR bridge inspections performed?
170.820   What standards are used for bridge inspections?
170.821   What is emergency maintenance?
170.822   What is a Declared State of Emergency?
170.823   When can access to IRR transportation facilities be 
restricted?

[[Page 51358]]

Appendix A to Subpart G--List of Activities Eligible for Funding 
Under The BIA Transportation Facility Maintenance Program

Subpart H--Miscellaneous

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 transport activities do State, tribal, and local 
governments perform?
170.903   How is a tribe notified of the transport of radioactive 
waste?
170.904   Who responds to an accident involving a radioactive or 
hazardous materials shipment?
170.905   Can tribes use IRR Program funds for training in handling 
radioactive and hazardous material?
170.906   Can tribes obtain training in transporting hazardous 
material?
170.907   How are radioactive and hazardous material spills 
addressed?

Reporting Requirements and Indian Preference

170.910   What information on the IRR Program or projects must BIA 
provide to tribes?
170.915   Are Indians entitled to employment and training 
preferences?
170.916   Are Indian organizations and Indian-owned businesses 
entitled to a contracting preference?
170.918   Is Indian preference permitted for federally funded non-
IRR transportation projects?
170.919   May tribal-specific employment rights and contract 
preference laws apply to IRR projects?
170.920   What is the difference between tribal preference and 
Indian preference?
170.921   May the cost of tribal employment taxes or fees be 
included in the budget for an IRR project?
170.922   May tribes impose taxes or fees on those performing IRR 
Program services?
170.923   Can tribes receive direct payment of tribal employment 
taxes or fees?

Emergency Relief

170.924   What is the purpose of the provisions relating to 
emergency relief?
170.925   What emergency or disaster assistance programs are 
available?
170.926   How can States get Emergency Relief Program funds to 
repair IRR System damage?
170.927   What qualifies for ERFO funding?
170.928   What does not qualify for ERFO funding?
170.929   What happens if an ERFO claim is denied?
170.930   Is ERFO funding supplemental to IRR Program funding?
170.931   Can a tribe administer ERFO repairs under a self-
determination contract or a self-governance agreement?
170.932   How can FEMA Program funds be accessed to repair damage to 
the IRR System?

Tribal Transportation Departments

170.936
Can a tribe establish a Tribal Transportation Department?
170.937   How can tribes find out information about staffing and 
organization of tribal transportation departments?
170.938   Are there any other funding sources available to operate 
tribal transportation departments?
170.939   Can tribes use IRR Program funds to pay for costs to 
operate a tribal transportation department?
170.940   Can tribes regulate oversize or overweight vehicles?

Arbitration Provisions

170.941   Are alternative dispute resolution procedures available to 
self-determination and self-governance tribes and the Secretary to 
resolve disputes between them in performing IRR Public Law 93-638 
activities?
170.942   Are alternative dispute resolution procedures available to 
resolve IRR program disputes?
170.943   How does a direct service tribe begin the alternative 
dispute resolution process?

Other Miscellaneous Provisions

170.950   How can a tribe or tribal organization find out if the 
ISDEAA has superseded an IRR provision?
170.951   Can tribes become involved in transportation research?
170.952   Are federal funds available for coordinated 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), 208, 308; 25 U.S.C. 47.

Subpart A--General Provisions and Definitions


Sec. 170.1  What is the authority for this part?

    This part is prepared and issued by the Secretary of the Interior 
with the active participation and agreement of the designated 
representatives of the Secretary of Transportation and with the active 
participation and representation of Indian tribes, tribal 
organizations, and individual tribal members under the Transportation 
Equity Act for the 21st Century (TEA-21), Section 1115(b), Title 23 
Chapter 2, and the negotiated rulemaking procedures in 5 U.S.C. 565.


Sec. 170.2  What is the purpose and scope of this part?

    (a) The purpose of this part is to provide uniform and consistent 
rules as well as a funding formula for the Department of Interior (DOI) 
in implementing the Indian Reservation Roads Program.
    (b) 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 
(ISDEAA).


Sec. 170.3  What is the Federal Government's Indian Reservation Roads 
policy?

    (a) It is the policy of the Secretary of Interior and Secretary of 
Transportation to:
    (1) Provide a uniform and consistent set of rules for the Indian 
Reservation Roads and BIA Road Maintenance programs;
    (2) Encourage Indian tribes and tribal organizations to become more 
knowledgeable about these programs by providing information on the 
programs and the opportunities Indian tribes have regarding them;
    (3) Facilitate the efforts of Indian tribes and tribal 
organizations to plan, conduct and administer these programs and to 
remove any obstacles to administering these programs;
    (4) Encourage including these programs under self-determination 
contracts or self-governance agreements;
    (5) Make available to Indian tribes and tribal organizations all 
administrative functions of these programs that are otherwise 
contractible under self determination contracts or self-governance 
agreements; and
    (6) Implement policies, procedures, and practices at the 
Departments to ensure the letter, spirit, and goals of TEA-21 are fully 
and successfully implemented.
    (b) This part is designed to facilitate and encourage Indian tribes 
to participate in the planning, design, construction, maintenance, 
conduct and administration of these programs. The Secretary shall 
afford Indian tribes and tribal organizations the flexibility, 
information and discretion necessary to design these programs under 
self-determination contracts and self-governance agreements to meet the 
needs of their communities consistent with these regulations and their 
diverse needs.
    (c) The Secretary of Interior and Secretary of Transportation 
recognize that contracting, compacting, or continuing to allow federal 
administration of these programs is an exercise of Indian tribes' self-
determination and self-governance.
    (1) The tribal contractor is responsible for managing the day-to-
day operation of the contracted Federal programs, functions, services, 
and activities.
    (2) The tribe accepts responsibility and accountability to the 
beneficiaries

[[Page 51359]]

under self-determination contracts and self-governance agreements for:
    (i) Use of the funds; and
    (ii) Satisfactory performance of the program, functions, services, 
and 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 Indian 
tribes and the trust resources of individual Indians.
    (d) The Secretary should interpret Federal laws and regulations in 
a manner that facilitates including programs covered by this part in 
the government-to-government agreements authorized under the ISDEAA.
    (e) The administrative functions referenced in paragraph (a)(5) of 
this section are contractible without regard to the organizational 
level within the Department that carries out these functions.
    (1) Including IRR administrative functions under self-determination 
contracts and self-governance agreements does not limit or reduce in 
any way the funding for any program, function, service or activity 
serving any other Indian tribe.
    (2) The Secretary is not required to reduce funding for these 
programs serving a tribe to make funds available to another Indian 
tribe or tribal organization. This part must be liberally construed for 
the benefit of Indian tribes and tribal organizations to implement the 
Federal policy of self-determination and self-governance. Any 
ambiguities in this part must be construed in favor of the Indian 
tribes or tribal organization so as to facilitate and enable the 
transfer of programs, authorized by 23 U.S.C. 202 and Title 25 U.S.C.


Sec. 170.4  Do other requirements apply to the IRR Program?

    Yes, IRR Program policy and guidance manuals and directives must be 
consistent with the regulations in this part and 25 CFR parts 900 and 
1000.


Sec. 170.5  What is the effect of these regulations on existing tribal 
rights?

    This part does not:
    (a) Affect, modify, diminish, or otherwise impair the sovereign 
immunity from suit enjoyed by Indian tribes;
    (b) Terminate, waive, modify, or reduce the trust responsibility of 
the United States to the Indian tribe(s) or individual Indians;
    (c) Require an Indian tribe to assume a program relating to the 
Indian Reservation Roads program; or
    (d) Impede awards by other Departments and agencies of the United 
States or a State to Indian tribes to administer programs under any 
other applicable law.


Sec. 170.6  What are definitions used in this part?

    AASHTO means the American Association of State Highways and 
Transportation Officials.
    Act means the Indian Self-Determination and Education Assistance 
Act of 1975, Public Law 93-638, as amended.
    Annual Funding Agreement means a document that represents the 
negotiated agreement of the Secretary to fund, on an annual basis, the 
programs, services, activities and functions transferred to an Indian 
tribe or tribal organization under the Indian Self-Determination and 
Education Assistance Act, as amended.
    Appeal means a request by a tribe, tribal organization or 
consortium for an administrative review of an adverse Agency decision.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    BIA DOT means the Bureau of Indian Affairs, Division of 
Transportation.
    BIA force account means the performance of work done by BIA 
employees.
    BIA Road Maintenance Program means the program that covers the 
distribution and use of the funds provided by Congress in the annual 
Department of Interior appropriations acts for maintaining 
transportation facilities.
    BIA Regional Director means the BIA official in charge of a 
Regional Office.
    CFR means the United States Code of Federal Regulations.
    Compact means an executed document which affirms the government-to-
government relationship between a self-governance tribe and the United 
States. The compact differs from an annual funding agreement in that 
parts of the compact apply to all bureaus of the Department of the 
Interior rather than to a single bureau.
    Construction means the supervising, inspecting, actual building, 
and incurrence of all costs incidental to the construction or 
reconstruction of a highway. This includes bond costs and other costs 
relating to the issuance in accordance with section 122 of bonds or 
other debt financing instruments and costs incurred by the State in 
performing Federal-aid project related audits that directly benefits 
the Federal-aid highway program. The term includes--
    (1) Locating, surveying, and mapping (including the establishment 
of temporary and permanent geodetic markets in accordance with 
specifications of the National Oceanic and Atmospheric Administration 
of the Department of Commerce);
    (2) Resurfacing, restoration, and rehabilitation;
    (3) Acquiring rights-of-way;
    (4) Providing relocation assistance, acquisition of replacement 
housing sites, and acquisition and rehabilitation, relocation and 
construction of replacement housing;
    (5) Eliminating hazards of railway grade crossings;
    (6) Eliminating roadside obstacles;
    (7) Making improvements that directly facilitate and control 
traffic flow, such as grade separation of intersections, widening of 
lanes, channelization of traffic, traffic control systems, and 
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 or 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 Bureau of Indian Affairs 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.
    Construction management services (CMS) means activities limited to 
administrative support services, coordination, and monitoring oversight 
of the planning, design, and construction process. Typical CMS 
activities are defined in 25 CFR 900.113.
    Construction programs means, when used in a self-determination 
contract, those programs as defined under 25 CFR 900.113(c); and, when 
used in a self-governance agreement, those programs as defined under 25 
CFR part 240.
    Construction project management means direct responsibility for the 
construction project through day-to-day on-site management and 
administration of the project. Activities may include cost management, 
project budgeting, project scheduling, and procurement services.
    Consultation means government-to-government communication in a 
timely manner by all parties about a proposed or contemplated decision 
in order to:

[[Page 51360]]

    (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 the Act.
    Days means calendar days, except where the last day of any time 
period specified in these regulations falls on a Saturday, Sunday, or a 
Federal holiday, the period shall carry over to the next business day 
unless otherwise prohibited by law.
    Departments means the Department of the Interior and the Department 
of Transportation.
    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.
    FHWA means the Federal Highway Administration in the Department of 
Transportation.
    Funding year means either fiscal year or calendar year, as may be 
appropriate.
    Indian means a person who is a member of an Indian tribe or as 
otherwise defined in 25 U.S.C. 250b.
    Indian tribe means any Indian 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 which 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.
    IRR means Indian Reservation Roads.
    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 
bridges.
    IRR inventory means a comprehensive list of information for all 
transportation facilities eligible for IRR funding by a tribe or 
reservation, in order by 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, 
ownership, and other information as required in subpart C.
    IRR Program means a part of the Federal Lands Highway Program 
established in 23 U.S.C. 204 to address transportation needs of Indian 
tribes.
    IRR Program Funds means the funds covered in chapter 2 of Title 23 
for the cost of transportation planning, research, engineering, and 
construction of highways, roads, parkways, or transit facilities within 
or providing access to Indian lands, communities and Alaska Native 
villages and includes associated program management costs.
    IRR transportation facilities means public roads, bridges, drainage 
structures, including culverts, ferry routes, marine terminals, transit 
facilities, boardwalks, pedestrian paths, trails, and their 
appurtenances, and other transportation facilities such as bus 
terminals, airports, heliports, road maintenance yards, adjacent 
parking areas, and public parking. It may also include other 
transportation facilities as designated by the tribe and the Secretary.
    IRR transportation planning funds means the funds made available 
(up to 2%) for Indian reservation roads for each fiscal year under 23 
U.S.C. 204(j) as may be allocated to such tribes for purposes of 
planning Indian reservation roads funding proposals.
    ISDEAA means the Indian Self-Determination and Education Assistance 
Act of 1975, Public Law 93-638, as amended.
    Maintenance means the performance of activities to keep an IRR 
transportation facility at its as constructed condition and to insure 
the health, safety, and economical use of the traveling public. 
Maintenance includes the preservation of IRR transportation facilities 
including surfaces, shoulders, roadsides, structures, and such traffic 
control devices as are necessary for safe and efficient utilization of 
the facility.
    NBI means the national inventory of structural and appraisal data 
collected to fulfill the requirements of the National Bridge Inspection 
Standards, as defined in 23 CFR 650, subpart C. Each State is required 
to prepare and maintain an inventory of all bridges within that State 
that are subject to these NBI standards and to provide the collected 
data to the Federal Highway Administration as needed. The NBI is 
maintained and monitored by the FHWA Bridge Division in Washington, DC.
    Office of Self-Governance (OSG) means the office within the Office 
of the Assistant Secretary-Indian Affairs, Department of the Interior, 
which is responsible for the implementation and development of tribal 
self-governance programs.
    Program means a policy, plan, project, program or activity covered 
by this part.
    Project Planning means those project related activities which 
precede the design phase of a transportation project. These activities 
include, but are not limited to, collection of detailed traffic data, 
accident information, functional, safety or structural deficiencies; 
corridor studies; conceptual studies, environmental studies; 
geotechnical studies; archaeological studies; project scoping; public 
hearings; location analysis; preparation of application for permits and 
clearances, and meetings with facility owners and transportation 
officials.
    Public road means any road or street under the jurisdiction of and 
maintained by a public authority and open to public travel. An Indian 
Reservation Road is a public road. Indian tribal governments and BIA 
are public authorities.
    Real Property means any interest in land together with the 
improvements, structures, and fixtures and appurtenances.
    Regionally significant project means a project that is on a 
facility which serves regional transportation needs (such as 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) and would normally 
be included in the modeling of a metropolitan area's transportation 
network, including, at a minimum, all principal arterial highways and 
all fixed guideway transit facilities that offer a significant 
alternative to regional highway travel.
    Rehabilitation means the major work required to restore the 
structural integrity of a bridge as well as work necessary to correct 
major safety defects.
    Relocation means the adjustment of utility facilities required by 
the 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.
    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.

[[Page 51361]]

    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.
    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.
    TEA-21 means the Transportation Equity Act for the 21st Century, 
Public Law 105-178, as amended by Title IX of Public Law 105-206.
    Transportation Improvement Program (TIP) means a staged, multi-year 
intermodal program of transportation projects which is consistent with 
the metropolitan transportation plan.
    Transportation planning means developing land use, economic 
development, traffic demand, public safety, health and social 
strategies to meet transportation current and future needs.
    U.S.C. means the United States Code.

Subpart B--Indian Reservation Roads Program Policy and Eligibility

Consultation, Collaboration, Coordination


Sec. 170.100  What does ``consultation, collaboration, and 
coordination'' mean?

    For purposes of this part:
    (a) Consultation means government-to-government communication in a 
timely manner by all parties about a proposed or contemplated decision 
in order to secure meaningful tribal input and involvement in the 
decision-making process, and to advise the tribe of the final decision 
and provide an explanation;
    (b) Collaboration means that all parties involved in carrying out 
the planning and/or project development processes actively work 
together in a timely manner to achieve a common goal or objective; and
    (c) Coordination means sharing and comparing by all parties in a 
timely manner of transportation plans, programs, projects, and 
schedules of one agency to related plans, programs, projects, and 
schedules of other agencies and adjustment of 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?

    The IRR Program 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:
    (a) Identifying high accident locations and locations for improving 
both vehicle and pedestrian safety;
    (b) Developing state, metropolitan, regional, IRR, and tribal 
transportation improvement programs that impact tribal lands, 
communities, and members;
    (c) Developing short- and long-range transportation plans;
    (d) Developing IRR transportation projects;
    (e) Developing environmental mitigation measures necessary to 
protect and/or enhance Indian lands and the environment, and counteract 
the impacts of the projects;
    (f) Developing plans or projects to replace or rehabilitate IRR 
deficient bridges;
    (g) Developing plans or projects for disaster and emergency relief 
response and the repair of eligible damaged IRR facilities;
    (h) Assisting in the development of state and tribal agreements 
related to the IRR Program;
    (i) Developing and improving transit systems serving Indian lands 
and communities; and
    (j) Assisting in the submission of discretionary grant applications 
for state and Federal funding for IRR facilities.


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, programs on tribal rights and interests to ensure that 
these rights and concerns are appropriately considered during the 
development of all programs.


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 in tribal transportation matters;
    (c) Promote the rights of tribal governments to continue receiving 
direct transportation services from the Federal Government, or to enter 
into self-determination and self-governance 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) Take appropriate steps to reduce the imposition of unfunded 
mandates upon tribal governments to the extent permitted by law;
    (f) Encourage flexibility and innovation in the implementation of 
the IRR Program;
    (g) Reduce, streamline, and eliminate unnecessarily restrictive 
transportation policies, guidelines or procedures; and
    (h) Ensure that the IRR Program is implemented consistent with 
tribal sovereignty and the government-to-government relationship.


Sec. 170.104  Does the Secretary of the Interior consult with tribal 
governments during the formulation of the annual BIA budget process?

    It is the policy of the Secretary to consult with, and solicit the 
participation of, tribes and tribal organizations in the development of 
budget proposals for the IRR Program.


Sec. 170.105  Must the Secretary consult with tribal governments before 
spending IRR funds?

    Yes, before spending IRR funds for any project, the Secretary must 
consult with any affected tribe or tribal organization to determine 
tribal preferences to the greatest extent feasible concerning all 
aspects of the project.
    (a) Within 30 days after the Secretary's allocation of funds for 
any phase of an IRR project, the Secretary must notify affected tribes 
or tribal organizations by registered mail with return receipt.
    (b) The Secretary's notice must offer technical assistance in 
preparing a self-determination contract or self-governance agreement 
proposal.


Sec. 170.106  What funds are available for consultation, collaboration, 
and coordination activities?

    To fund consultation, collaboration, and coordination of IRR 
activities, tribes or tribal organizations may use:

[[Page 51362]]

    (a) IRR funds;
    (b) Tribal Priority Allocation (TPA) funds;
    (c) Administration for Native Americans (ANA) funds;
    (d) Economic Development Administration (EDA) funds;
    (e) Community Development Administration (CDA) 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, Federal Highway 
Administration (FHWA) transportation planning grants; and
    (i) Any other funds available for the purpose of consultation, 
collaboration, and coordination activities.


Sec. 170.107  When must State governments consult with tribes and 
tribal organizations?

    Each State must develop the State transportation improvement 
program in consultation with tribal organizations and BIA in those 
areas under Indian tribal jurisdiction. This includes providing for a 
fully coordinated transportation planning process which, among other 
things, coordinates transportation planning efforts carried out by the 
State with transportation planning efforts carried out by tribes and 
tribal organizations. 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. 170.108  Should planning organizations and local governments 
consult with tribal governments when conducting planning for 
transportation projects?

    Yes, it is the policy of the Department to foster and improve 
communication, cooperation, and coordination among Metropolitan 
Planning Organizations (MPOs), Rural Planning Organizations (RPOs), 
local governments, and municipal governments on transportation matters 
of common concern. Accordingly, planning organizations and local 
governments will consult with tribal governments when planning for 
transportation projects.


Sec. 170.109  How do the Secretaries prevent discrimination or adverse 
impact?

    In administering the IRR Program, the Secretaries actively monitor 
these programs to ensure that nondiscrimination and environmental 
justice principles are integral parts of their programs, policies, and 
activities. The Secretaries consult with tribes early in the 
development of these programs, policies, or activities, to identify 
potential discrimination and to recommend positive 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 impact?

    (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 positive 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 impacting 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 Federal Transit Authority (FTA) officials 
to report the problem and seek assistance in resolving the problem 
through negotiation or other informal means; and
    (c) If efforts under paragraphs (a) and (b) of this section are 
unsuccessful, request that BIA, FHWA or FTA invoke legal remedies to 
correct the problem.


Sec. 170.112  How can tribes and state and government agencies enhance 
consultation, collaboration, and coordination?

    Tribes and state and Federal Government agencies may enter into 
intergovernmental Memoranda of Agreement (MOA) to streamline and 
facilitate consultation, collaboration, and coordination.

Eligibility for IRR Funding


Sec. 170.114  What activities may be funded with IRR funds?

    Notwithstanding any prior guidance, IRR funds may be used:
    (a) For all of the items listed in Appendix A to this subpart;
    (b) For other purposes identified in this part; or
    (c) For other purposes identified in guidance issued by the IRR 
Program Coordinating Committee under the procedures in Appendix A to 
this subpart, item (35) and Sec. 170.173.
    (d) Each of the items listed in the appendix must be interpreted in 
a manner that permits, rather than prohibits, a proposed use of funds.


Sec. 170.115  What activities are not eligible for IRR Program funding?

    IRR Program funds cannot be used for any of the following:
    (a) Cyclical maintenance work, including patching or marking 
pavement; grading shoulders and ditches; cleaning culverts; snow 
removal, roadside mowing, normal sign repair and replacement, painting 
roadway structures, and maintaining, cleaning, and repairing bridge 
joints, drainage, and other bridge appurtenances;
    (b) Structures and erosion protection unrelated to transportation 
and roadways;
    (c) General reservation planning not involving transportation;
    (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
    (g) Trail development and related activities prohibited by 23 
U.S.C. 206(g).


Sec. 170.116  How can a tribe determine whether a new proposed use of 
IRR funds is allowable?

    (a) A tribe that proposes a new use of IRR program funds must 
submit a written inquiry to BIA and FHWA concerning whether the 
proposed use is eligible under Titles 23 and 25 of the United States 
Code and other applicable provisions of Federal law.
    (b) For eligibility questions that refer to self-determination and 
self-governance contracting and road maintenance, BIA must provide a 
written response to the requesting tribe within 60 days of receipt of 
the written inquiry. For eligibility questions that refer to IRR 
Program, FHWA must provide a written response to the requesting tribe 
within 60 days of receipt of the written inquiry. BIA must

[[Page 51363]]

approve the proposed use if it is authorized under title 25 of the 
United States Code and is related to transportation. FHWA must approve 
the proposed use if it listed as an eligible item in title 23 of the 
United States Code. To the extent practicable and before denying the 
request, BIA or FHWA consults with the IRR Program Coordinating 
Committee.
    (c) If either BIA or FHWA fails to issue the requesting tribe a 
timely written response to the eligibility inquiry, the proposed use 
will be deemed to be allowable until a determination has been made and 
the written response is provided to the tribe.
    (d) BIA and FHWA will send copies of all eligibility determinations 
to the IRR Program Coordinating Committee and BIA regional offices.
    (e) Tribes may appeal denials of a proposed use pursuant to 25 CFR 
part 2.

Use of IRR and Cultural Access Roads


Sec. 170.120  What restrictions apply to the use of an Indian 
Reservation Road (IRR)?

    IRR's must generally 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 to public use when 
required for public safety, fire prevention or suppression, fish or 
game protection, low load capacity bridges, or prevention of damage to 
unstable roadbeds;
    (b) Conduct engineering and traffic analysis under established 
traffic engineering practices 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 the needed 
regulatory signs and pavement markings.


Sec. 170.121  What is a cultural access road?

    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:
    (a) Sacred and medicinal sites;
    (b) Gathering medicines or materials such as grasses for basket 
weaving; or
    (c) Other traditional activities, including, but not limited to, 
subsistence hunting, fishing and gathering.


Sec. 170.122  Who may designate a road as a cultural access road?

    Indian tribal governments and other local public authorities may 
designate a road as a cultural access road.


Sec. 170.123  May cultural access roads be included in the IRR 
Inventory?

    Yes, cultural access roads may be included in the IRR Inventory if 
they meet the definition of an IRR Road.


Sec. 170.124  What is the significance of designating a 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.


Sec. 170.125  Can a tribe close a cultural access road?

    Yes, a tribe with jurisdiction over a cultural access road can 
close it. The tribe can do this:
    (a) During periods when the tribe or tribal members are involved in 
cultural activities; and
    (b) In order to protect the health and safety of the tribal members 
or the general public.


Sec. 170.126  Can a tribe designate a non-tribal road a cultural access 
road?

    Yes, tribes and a public authority having jurisdiction over a road 
may enter into agreements that recognize the tribal designation of a 
cultural access road and cooperate to protect cultural resources.

Seasonal Transportation Routes


Sec. 170.130  What are seasonal transportation routes?

    Seasonal transportation routes are non-recreational transportation 
routes in the IRR inventory which are used for access to Indian 
communities or villages and may not be open for year-round use. These 
include snowmobile trails, ice roads, and overland winter roads.


Sec. 170.135  Can IRR Program funds be used to build seasonal 
transportation routes?

    Yes, IRR Program funds can be used to build seasonal transportation 
routes.


Sec. 170.136  Can seasonal transportation routes be included in the IRR 
system inventory?

    Yes, by official tribal authorization, a tribe may request that 
seasonal transportation routes be included in an IRR system inventory.


Sec. 170.137  Are there standards for seasonal transportation routes?

    Yes, in addition, a tribe can develop and/or adopt standards, which 
are equal to, or exceed, state, Federal, or national standards.


Sec. 170.138  Does construction of a seasonal transportation route 
require rights-of-way or use permits?

    Yes, use of IRR funds requires rights-of-way or use permits.

IRR Housing Access Roads and Toll Roads


Sec. 170.140  What is the definition of an IRR housing access road?

    An IRR housing access road is a public road on the IRR system that 
provides access to a housing cluster or Indian community.


Sec. 170.141  What is the definition of an IRR housing street?

    An IRR housing street is a public road on the IRR system that 
provides access to adjacent homes within a housing cluster or Indian 
community.


Sec. 170.142  Are IRR housing access roads and housing streets eligible 
for IRR Program funding?

    Yes, IRR housing access roads and housing streets are eligible for 
construction, reconstruction, and rehabilitation funding under the IRR 
Program.


Sec. 170.143  How are IRR housing access roads and housing street 
projects funded?

    Tribes, following the transportation planning process as required 
in subpart D, include housing access roads and housing street projects 
on the Tribal Transportation Improvement Program (TTIP). IRR funds are 
available after the projects are on the FHWA-approved IRR TIP.


Sec. 170.144  Can tribes use Federal-aid highway funds, including IRR 
funds, for toll and ferry facilities?

    Yes, Tribes can use Federal-aid highway funds, including IRR funds, 
to study, design, construct, and operate toll highways, bridges, 
tunnels, ferry boats and ferry terminal facilities. Tribes are 
authorized to study, design, construct, and operate these facilities 
because tribes are public authorities.


Sec. 170.145  How does a tribe initiate construction of a toll highway, 
bridge or tunnel?

    To initiate construction of a toll highway, bridge, or tunnel, a 
tribe must:
    (a) Enter into a toll revenue agreement with the Secretary of 
Transportation under 23 U.S.C. 129; and
    (b) If IRR funds are used, enter into a self-governance agreement 
or self-determination contract with the Secretary of the Interior.


Sec. 170.146  What is the Federal share of a toll highway, bridge or 
tunnel project?

    The Federal share is a maximum of 80 percent for conversion of an 
existing

[[Page 51364]]

toll-free highway, bridge or tunnel to a toll facility or 80 percent 
for construction of a new toll facility.


Sec. 170.147  How does a tribe initiate construction of ferry boats and 
ferry terminal facilities?

    To initiate construction of ferry boats and ferry terminal 
facilities, a tribe must follow the procedures defined in 23 U.S.C. 
129(c).


Sec. 170.148  How can tribes find out more information about designing 
and operating a toll highway, bridge or tunnel?

    Information on designing and operating a toll highway, bridge or 
tunnel is available from the International Bridge, Tunnel and Turnpike 
Association. This is a Washington, DC-based organization that maintains 
an address directory of its membership and serves as an information 
clearinghouse and research center. It also conducts surveys and studies 
and publishes a variety of reports, statistics, and analyses. Their web 
site is located at http://www.ibtta.org. Information is also available 
from FHWA.

Recreation, Tourism, Trails


Sec. 170.150  Are Federal funds available for a tribe's recreation, 
tourism, and trails programs?

    Yes, Tribes may access funding from the following Federal programs 
for recreation, tourism, and trails:
    (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, 205, 214); 
and
    (g) Other funding from other Federal departments.


Sec. 170.151  How can tribes access non-IRR federal funds for their 
recreation, tourism, and trails programs?

    In order to use non-IRR federal funds for their recreation, 
tourism, and trails programs, tribes must have a current TIP in place.
    (a) To increase opportunities to receive funding for programs that 
serve tribes' recreation, tourism, and trails goals, it is advisable 
thattribes:
    (1) Have programs identified and scoped for development;
    (2) Have viable projects ready for construction, including 
necessary permits;
    (3) Have several projects ready for improvement or construction in 
any given year.
    (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. Tribes may request:
    (1) To administer these programs under the State's locally 
administered project program;
    (2) That the funds be transferred to BIA for tribal self-
determination contracts or self-governance agreements under the ISDEAA; 
and
    (3) To contract directly with FHWA.
    (c) Congress provides funds under 23 U.S.C. 205 and 214 for 
activities for Federal agencies such as the Bureau of Land Management, 
National Park Service, Forest Service, Bureau of Reclamation, and the 
Department of Defense. In accordance with Federal policy these agencies 
must work with tribal governments to identify and include tribal 
priority improvement projects on their TIP.
    (1) Tribes can contract with all agencies within the Department of 
the Interior under the ISDEAA for this work.
    (2) For agencies outside the Department of the Interior, funds are 
transferred to BIA for tribal self-determination contracts or self-
governance agreements under the ISDEAA.
    (d) In order to use National Scenic Byway funds, the project must 
be on a road designated as a state or Federal scenic byway.


Sec. 170.152  Can IRR Program funds be used for recreation, tourism, 
and trails programs?

    Yes, a tribe, tribal organization, tribal consortium or BIA may 
fund activities for recreation, tourism, and trails programs if they 
are included in the IRR TIP.


Sec. 170.153  What types of activities may tribes perform under a 
recreation, tourism, and trails program?

    (a) The following are some examples of activities that tribes 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 23 U.S.C. 319;
    (13) Bicycle Transportation and pedestrian walkways 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 non-IRR programs.
    (c) Tribes may use IRR funds for any activity that is eligible for 
Federal funding under any provision of title 23 of the United States 
Code.


Sec. 170.154  Can roads be built in roadless and wild areas?

    Under 25 CFR part 265 no roads can be built in roadless and wild 
areas.

Highway Safety Functions


Sec. 170.155  What Federal funds are available for a tribe's highway 
safety activities?

    The following Federal funds are available for a tribe's highway 
safety activities:
    (a) IRR funds, highway safety program funds under 23 U.S.C. 402;
    (b) Occupant protection program funds under 23 U.S.C. 405;
    (c) Alcohol traffic safety program funds under 23 U.S.C. 408;
    (d) Alcohol-impaired driving countermeasures; and
    (e) Funding for highway safety activities from the U.S. Department 
of Health and Human Services (HHS) under 23 U.S.C. 410.


Sec. 170.156  How can tribes obtain funds to perform highway safety 
projects?

    There are two methods to access 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

[[Page 51365]]

administer these funds under the ISDEAA.
    (b) FHWA provides funds to the states under 23 U.S.C. 402, 405, 
408, 410, and 412. States annually solicit proposals from tribes and 
local governments. Tribes may request that state DOTs agree to allow 
FHWA safety funds to be transferred to DOI so that they can be 
administered by the tribe under the ISDEAA. Alternatively, tribes can 
enter into contracts directly with FHWA.


Sec. 170.157  How can IRR funds be used for highway safety and impaired 
driver initiatives?

    A tribe, tribal organization, tribal consortium, or BIA may fund 
projects to improve highway safety. Those projects that are not fully 
funded by BIA-administered Indian highway safety program must be 
incorporated into the FHWA-approved IRR TIP if IRR funds are used to 
complete funding of the project.


Sec. 170.158  What types of activities are eligible as highway safety 
projects?

    The following are several examples of some of the 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 IRR roads, 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. 170.159  Are other funds available for a tribe's highway safety 
efforts?

    Yes, Tribes should seek grant and program funding for highway 
safety activities from appropriate Federal, state, and local agencies 
and private grant organizations.

Non-Road Transportation Facilities


Sec. 170.160  Can IRR Program funds be used for construction of 
runways, airports, and heliports?

    No, IRR Program funds cannot be used to construct or improve 
runways, airports or heliports which provide service to Indian 
reservations.


Sec. 170.161  Can IRR Program funds be used for construction of airport 
and heliport access roads?

    Yes, IRR Program funds can be used for construction of airport and 
heliport access roads if the access roads are open to the public.


Sec. 170.162  Are funds available to construct airports, heliports, and 
runways?

    Yes, the Federal Aviation Administration (FAA), DOT, funds projects 
under the Airport Improvement Program (AIP). (See FAA Advisory Circular 
No. 150/5370-10A.)

Transit Facilities


Sec. 170.163  What is transit?

    For purposes of this part, transit includes those services, 
equipment, and functions associated with the public movement of people 
served within a community or network of communities.


Sec. 170.164  What is a tribal transit program?

    A tribal transit program includes the planning, administration, 
acquisition of vehicles, and the operation and maintenance of a mass 
transit 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. 170.165  Are IRR Program funds available for tribal transit 
programs?

    Yes, title 23 of the United States Code authorizes the use of IRR 
Program funds for transit facilities as defined in these regulations.


Sec. 170.166  How do tribes identify transit needs?

    Tribes identify transit needs during the tribal transportation 
planning process. (See Subpart D.) Transit projects using IRR funds 
must be included in the FHWA-approved IRR TIP.


Sec. 170.167  What Federal funds are available for a tribe's transit 
program?

    There are many sources of Federal funds that may help support 
tribal transit programs. These include, but are not limited to, the 
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, 1-800-527-
8279 or 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, 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, 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. 170.168  May tribes or tribal organizations use IRR funds as 
matching funds for other transit grants or programs?

    Yes, a tribe or tribal organization may use IRR 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.


Sec. 170.169  What transit facilities and related activities that 
support tribal transit programs are eligible for IRR funding?

    Facilities and activities eligible for IRR funding include, but are 
not limited to:
    (a) Acquiring, constructing, supervising or inspecting new, used or 
re-furbished equipment, buildings, facilities, buses, vans, water 
craft, and other vehicles for use in mass transportation;
    (b) Transit-related intelligent transportation systems;
    (c) Rehabilitating, re-manufacturing, 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;

[[Page 51366]]

    (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;
    (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).


Sec. 170.170  May BIA use IRR funds as matching funds for other transit 
grants or programs?

    Yes, BIA may use IRR funds to pay local matching funds for transit 
facilities and activities funded under 23 U.S.C. 104.

IRR Program Coordinating Committee


Sec. 170.171  What is the IRR Program Coordinating Committee?

    Consistent with the government-to-government relationship the 
United States has with tribes and with the Federal policy of promoting 
tribal self-determination, the Secretaries established an IRR Program 
Coordinating Committee. The Committee provides input and 
recommendations to BIA and FHWA in developing policies and procedures 
for the IRR Program. The IRR Program Coordinating Committee supplements 
government-to-government consultation by coordinating with and 
obtaining input from tribes, BIA personnel, and FHWA personnel.


Sec. 170.172  Who are members of the IRR Program Coordinating 
Committee?

    (a) The Committee consists of 12 tribal member representatives (one 
from each BIA Region) and three non-voting Federal representatives 
(FHWA, BIA, DOT and DOI-OSG).
    (b) The Secretary 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 selected by the region's tribes by tribal 
resolution or other official action. 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. 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.


Sec. 170.173  What are the responsibilities of the IRR Program 
Coordinating Committee?

    (a) Committee responsibilities are to provide input and 
recommendations to BIA and FHWA during the development or revision of:
    (1) BIA/FHWA IRR Stewardship Plan;
    (2) IRR Program policy and procedures;
    (3) IRR eligible activities determination;
    (4) IRR transit policy;
    (5) IRR regulations;
    (6) IRR management systems policy and procedures; and
    (7) National tribal transportation needs.
    (b) The Committee may establish work groups to carry out their 
responsibilities; and
    (c) The Committee also reviews IRR program national concerns 
(including the implementation of these regulations) brought to the 
attention of the Committee and provides recommendations.


Sec. 170.174  How often will the IRR Program Coordinating Committee 
meet?

    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.


Sec. 170.175  How does the IRR Program Coordinating Committee conduct 
business at its meetings?

    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 
Chairperson.
    (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 Chairperson, a Vice Chairperson, and other officers. These 
officers will be responsible for preparing for and conducting Committee 
meetings and summarizing meeting results. These officers will also have 
such duties as the Committee may prescribe.


Sec. 170.176  How will the IRR Program Coordinating Committee be 
funded?

    The budget will be funded through the IRR Program management funds, 
not to exceed $150,000 annually.


Sec. 170.177  How must the Committee keep the Secretary and the tribes 
informed of the Committee's accomplishments?

    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.

Indian Local Technical Assistance Program (LTAP)


Sec. 170.178  What is the Indian Local Technical Assistance Program?

    The Indian LTAP program is authorized under 23 U.S.C. 504(b) and 
Secs. 170.178-192 are provided for information only. The Indian Local 
Technical Assistance Program (LTAP) assists tribal governments and 
other IRR Program participants in extending their technical 
capabilities by providing them greater access to surface transportation 
technology and transportation training and research opportunities.


Sec. 170.179  How does the Indian LTAP work?

    The Indian LTAP provides funds to Indian technical centers (also 
known as Tribal Technical Assistance Program Centers (TTAPs)) to 
provide transportation technology transfer services to tribal 
governments and IRR Program participants. FHWA can also make grants and 
enter into cooperative agreements and contracts with tribal governments 
or a consortium of tribal governments or state transportation 
departments or universities to provide education, training, technical 
assistance and related support services to do the following:
    (a) Develop and expand tribal expertise in road and transportation 
areas;
    (b) Improve IRR road and bridge performance;
    (c) Enhance tribal intergovernmental transportation planning and 
project selection programs and tribal transit and freight programs;
    (d) Develop transportation training courses, manuals, guidelines, 
and technical resource materials;
    (e) Improve tribal programs for tourism and recreational travel;

[[Page 51367]]

    (f) Develop and share tribal transportation technology and traffic 
safety information with other government transportation agencies so 
that they can deal more effectively with transportation-related 
problems affecting tribal governments;
    (g) Operate Indian technical centers in cooperation with state 
transportation departments and universities;
    (h) Enhance new technology implementation in cooperation with the 
private sector; and
    (i) Develop educational programs to encourage and motivate interest 
in transportation careers among Native American students.


Sec. 170.180  How is the Indian LTAP funded?

    FHWA uses Highway Trust Funds to fund the Indian LTAP program. BIA 
may only use IRR administrative funding 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 are encouraged to apply for supplemental funding from other 
sources to accommodate their needs.


Sec. 170.181  How do tribes receive information about opportunities 
under the Indian LTAP?

    (a) FHWA announces Indian LTAP grant, cooperative agreement, and 
contracting opportunities in the Federal Register. The announcements 
state that tribal governments and consortia are eligible for these 
awards, indicate the amount of funds available and provide any 
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) FHWA notifies tribal governments and consortia if they receive 
grant awards.


Sec. 170.182  How are Indian LTAP grant, cooperative agreement, and 
contracting recipients selected?

    A selection committee of Federal and tribal representatives from 
the region's Indian LTAP advisory committee (see Sec. 170.189) reviews 
the proposals of eligible applicants and recommends the award 
recipient(s). FHWA selects recipients consistent with applicable law.


Sec. 170.183  Can tribes or tribal organizations enter into a contract 
or agreement for Indian LTAP funds under the ISDEAA?

    Yes, if selected for award, a tribe or tribal organization may 
request that FHWA allocate the available funds to BIA and a tribe or 
tribal organization may enter into a self-determination contract or 
self-governance agreement for the activities under the ISDEAA.


Sec. 170.184  What services do Indian LTAP centers provide?

    (a) The Indian LTAP centers:
    (1) Provide training materials and present workshops to tribal 
personnel and IRR Program participants;
    (2) Act as information clearinghouses for tribal governments and 
Indian-owned businesses on transportation-related topics; and
    (3) Provide technical assistance on transportation technology and 
other transportation topics as requested by tribal staff and IRR 
Program participants.
    (b) Unless otherwise stated in an Indian LTAP agreement, an Indian 
technical assistance program center must, at a minimum:
    (1) Maintain a current mailing/contact list including, at a 
minimum, each tribe/tribal consortia and IRR Program participants 
within the service area;
    (2) Publish a quarterly newsletter and maintain a web site;
    (3) Conduct and/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, 
and Rural Technical Assistance Program (RTAP) centers, tribal 
governments or consortia and local planning and transportation agencies 
to share and exchange publications, video tapes, training material, and 
conduct joint workshops;
    (9) Consult with tribes, tribal consortia, 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. 170.185  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 Internet at the following address http://www.irr.bia.gov.


Sec. 170.186  Do Indian LTAP centers offer similar services provided by 
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. 170.187  What can tribes do if LTAP services are unsatisfactory?

    Tribal governments can make their concerns known to the Indian LTAP 
Center Director, FHWA and/or 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;
    (c) Services from other Indian LTAP centers; or
    (d) That the center's cooperative agreement not be funded in the 
subsequent year.


Sec. 170.188  How are Indian LTAP centers managed?

    Each center is managed by its Center Director and staff, with the 
advice of its advisory committee under the LTAP agreements.


Sec. 170.189  What does the Indian LTAP center advisory committee do?

    (a) The advisory committee consists of one BIA Regional Road 
Engineer, one FHWA representative, one state DOT representative, and at 
least five tribal representatives from the service area. The advisory 
committee 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.
    (b) The advisory committee must meet at least twice a year. Tribal 
representatives may request IRR funding to cover the cost of 
participating in these committee meetings.

[[Page 51368]]

Sec. 170.190  How are tribal advisory committee members selected?

    (a) The LTAP center requests nominations from tribal governments 
and consortia within the service area for tribal transportation 
representatives to serve on the advisory committee.
    (b) Tribes from the service area select tribal committee members 
from those nominated.


Sec. 170.191  How are tribal representatives nominated and selected?

    In its written notice to tribal governments and consortia 
announcing opportunities under the Indian LTAP program, FHWA requests 
nominations within each Indian LTAP's service area for representatives 
to serve on the service area advisory committee. Forty-five days after 
the request for nominations, FHWA will notify tribal governments and 
consortia of the nominees for the service area. Each tribe then has 30 
days to notify FHWA of its selection from the nominees.


Sec. 170.192  Who reviews the performance of Indian LTAP centers?

    FHWA, BIA, advisory committees, and tribes review the performance 
of the Indian LTAP centers.

LTAP-Sponsored Education and Training Opportunities


Sec. 170.193  What 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 further information on 
these programs and their use for tribal transportation education and 
training opportunities, contact the Regional Indian LTAP center or the 
BIA Regional Road Engineer. Appendix B to this subpart contains a list 
of programs and funding sources.


Sec. 170.194  Where can tribes get scholarships and tuition for LTAP-
sponsored education and training?

    Tribes can get tuition and scholarship assistance for LTAP-
sponsored education and training from the following sources:
    (a) LTAP centers;
    (b) BIA-appropriated funds (for approved training); and
    (c) IRR 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. Research for coordinated technology implementation program 
(CTIP).
    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. 170.173).

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 bridges 
including bridges and structures under 20 feet in length.
    2. Construction or re-construction of IRR roads and bridges 
necessary to accommodate other transportation modes.
    3. Construction of toll roads, 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 Secs. 170.163-170.170 for additional information).
    7. Engineered pavement overlays that add to the structural value 
and design life or increasing 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 bridges.
    12. Application of calcium magnesium acetate, sodium acetate/
formate, or other

[[Page 51369]]

environmentally acceptable, minimally corrosive anti-icing and de-
icing compositions on bridges, and approaches thereto and other 
elevated structures.
    13. Installation of scour countermeasures for 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 which 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 resulting from safety 
studies.
    18. Planning and development of rest areas, recreational trails, 
parking areas, sanitary facilities, water facilities, and other 
facilities which accommodate the traveling public.
    19. Public approach roads and interchange ramps which 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 
which 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.
    27. Handling traffic and pedestrians 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 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 when designed 
and constructed with requirements defined in Sec. 170.130.
    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 
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)(35).
    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 listed in section 108(f)(1)(A) (other 
than clause (xvi) 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 
Secs. 170.150-170.154.
    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. 170.173).

Appendix B to Subpart B

Sources of Tribal Transportation Training and Education Opportunities

    The following is a list of some of the many sources for tribal 
transportation training and education opportunities. There may be 
other sources not listed here.
    1. National Highway Institute training courses and fellowships
    2. State and local technical assistance program workshops
    3. Indian technical assistance center 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. American Association State Highway & Transportation Officials 
(AASHTO)
    9. Transportation Research Board (TRB) workshops
    10. Private sector course offerings
    11. Union apprenticeships
    12. BIA force account operations
    13. Intertribal Transportation Association (ITA)
    14. FTA RTAP
    15. State DOTs
    16. Federal-aid highway construction and technology training 
including skill improvement programs under 23 U.S.C. 140 (b)(c)
    17. Minority Business Enterprise (MBE), Women's Business 
Enterprise (WBE), Disadvantaged Business Enterprise (DBE),

[[Page 51370]]

Small Business Enterprise (SBE), Women's Disadvantaged Enterprise 
(WDBE)
    18. Other funding sources identified in Sec. 170.167 (Transit)
    19. Department of Labor work force development
    20. Indian Employment, Training, and Related Services 
Demonstration Act, Pub. L. 102-477
    21. Garrett Morgan Scholarship (FHWA)
    22. Tribal colleges
    23. NITI--National Indian Telecommunications Institute
    24. AISES--American Indian Science and Engineering Society
    25. CTAA--Community Transit Association of America
    26. NTRC--National Transit Resource Center
    27. CTER--Council for Tribal Employment Rights
    28. American Traffic Safety Association
    29. APA--American Planning Association
    30. PMI--Project Management Institute
    31. BIA Indian Highway Safety Program
    32. NRC--National Research Council
    33. CERT--Council for Energy Resource Tribes
    34. FHWA/STIPDG and NSTISS Student Internship Programs (Summer 
Transportation Internship Program for Diverse Groups and National 
Summer Transportation Institute for Secondary Students)
    35. Environmental Protection Agency (EPA)
    36. Department of Commerce (DOC)
    37. HUD Community Planning and Development

Subpart C--Indian Reservation Roads Program Funding


Sec. 170.225  How are IRR Program funds allocated?

    These regulations allocate IRR Program funds according to the 
Tribal Transportation Allocation Methodology (TTAM) by:
    (a) Continuing the 2% Transportation Planning Program;
    (b) Creating a discretionary pool for IRR High Priority Projects 
(IRRHPP);
    (c) Creating a special provision for additional authorization 
greater than $275,000,000 that includes:
    (1) Increased Funding = Authorization--$275,000,000;
    (2) Of Increased Funding, after takedowns, 12.5% added to IRRHPP 
and 12.5% to Population Adjustment Factor (PAF); and
    (3) Distributing the balance of the funds by the following Relative 
Need Distribution Factor: 50% Cost to Construct + 30% Vehicle Miles 
Traveled + 20% Population.


Sec. 170.226  What is the process to allocate IRR Program funds?

    The following diagram illustrates the process for allocating IRR 
Program funds.
[GRAPHIC] [TIFF OMITTED] TP07AU02.000

Sec. 170.232  How does BIADOT allocate and distribute 2% Transportation 
Planning funds?

    BIADOT distributes 2% Tribal Transportation Planning funds 
described in Sec. 170.404 pro rata according to the tribes' relative 
need percentage from the Relative Need Distribution Factor. The 2% 
transportation planning funds must be distributed to the Office of 
Self-Governance for self-governance tribes that negotiate 2% 
transportation planning in their AFA's and BIA Regional Offices for all 
other tribes.

Tribal Transportation Allocation Methodology for IRR Construction


Sec. 170.235  How does BIA allocate IRR construction program funds to 
the tribes?

    BIA allocates IRR construction program funds by the Tribal 
Transportation Allocation Methodology as follows:
    (a) Creating the IRRHPP funding pool;
    (b) For authorizations greater than $275 million, after takedowns, 
establishing the PAF; and
    (c) Allocating the balance of the funds according to the Relative 
NeedDistribution Factor.


Sec. 170.236  Does the Relative Need Distribution Factor allocate 
funding among the individual tribes, or only to the Regions?

    The Relative Need Distribution Factor allocates funding to the 
tribes under 23 U.S.C. Sec. 202(d)(2). The IRR construction

[[Page 51371]]

funds are allocated pro rata according to the tribes' relative need 
percentage from the Funding Formula. The IRR construction funds must be 
re-programmed to the Office of Self-Governance for Self-Governance 
tribes that negotiate IRR construction funds in their AFA, and 
distributed to BIA Regional Offices for all other tribes. However, in 
order for a tribe's IRR 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) Program


Sec. 170.245  What is the IRR High Priority Project (IRRHPP) Program?

    The IRRHPP Program is a special funding pool for tribes, or 
governmental subdivision of a tribe that is authorized to administer 
its own IRR funding, whose annual allocation is insufficient to 
complete their highest priority project. Eligible applicants may have 
only one application pending in the IRRHPP at any time. In addition, 
IRRHPP Program funds can be used in an emergency/disaster on any IRR 
system route.


Sec. 170.246  How is an emergency/disaster defined?

    An emergency/disaster is defined as damage to an IRR facility 
identified as vital to the community, such that the facility is 
rendered impassable or unusable, caused by a natural disaster over a 
widespread area or catastrophic failure from an external cause.
    (a) Examples of a natural disaster include, but are not limited to, 
floods, earthquakes, tornadoes, landslides, and avalanches or severe 
storms, such as saturated surface conditions and/or high-water table 
caused by precipitation over an extended period of time; and
    (b) An example of a catastrophic failure includes, but is not 
limited to, a bridge collapse after being struck by a barge or a truck 
or a landslide.


Sec. 170.247  What funding levels are available to the IRRHPP Program?

    The base IRRHPP Program funding level is 5% of available IRR 
Program funds, up to $275,000,000, after takedowns. If the yearly 
authorization is greater than $275,000,000, an additional amount, after 
takedowns, is available to IRRHPP. This amount is calculated as 
follows:
    Additional IRRHPP = 12.5%  x  (Authorization-$275,000,000 (after 
takedowns)).


Sec. 170.248  How will BIA and FHWA rank and fund IRRHPP project 
applications?

    (a) BIA and FHWA will fund IRRHPP project applications that are for 
emergency/disaster projects on a first-come first-serve basis, subject 
to availability of funds. Emergency/disaster awards are limited to the 
estimated cost of the emergency (necessary to restore usability of the 
facility), not to exceed $1,000,000, with certification of cost 
estimate by the Regional Engineer.
    (b) BIA and FHWA will score, rank, and fund all other IRRHPP 
project applications based upon the following criteria and availability 
of funds:
    (1) Safety hazards with documented fatality and injury accidents;
    (2) Number of years since the tribe's last IRR construction project 
completed;
    (3) Number of years that a proposed project has been in the IRRHPP 
applicant pool;
    (4) Percentage of project matched by other non IRR 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.
    (c) The Project Scoring Matrix is found in Appendix A to subpart C.


Sec. 170.249  Is there a limit on the amount of IRRHPP funding 
available for a project?

    Yes, the limit of IRRHPP funding per project is $1,000,000.


Sec. 170.250  May an IRRHPP project be phased over several years?

    Yes, IRRHPP projects may be phased over more than one year, 
provided the total amount of IRRHPP funds needed to complete the 
project does not exceed$1,000,000. For example, a tribe might receive 
$100,000 in year one for pre-construction and $900,000 in year two for 
construction. The plans, specifications, and estimates (PS&E) must be 
approved before IRRHPP funds will be provided for construction.


Sec. 170.251  How do tribes apply for IRRHPP?

    A tribe may apply for IRRHPP funds by submitting a complete 
application package to the Chief of BIADOT.


Sec. 170.252  What must an application for an IRRHPP include?

    The application must include:
    (a) Project scope of work (deliverables, budget, timeline);
    (b) Amount of IRRHPP funds requested;
    (c) Project information addressing ranking criteria identified in 
Sec. 170.248, or the nature of the emergency/disaster;
    (d) Documentation that the project is in the IRR Inventory, or in 
the case of an emergency/disaster application that it meets the 
definition of an IRR facility;
    (e) Documentation of official tribal action requesting the IRRHPP 
project; and
    (f) An FHWA-approved IRR TIP.


Sec. 170.253  Are there any transportation activities for which IRRHPP 
funds cannot be used?

    Yes, IRRHPP funds cannot be used for transportation planning or 
research.


Sec. 170.254  Who ranks the IRRHPP projects?

    BIADOT and FHWA rank IRRHPP projects.


Sec. 170.255  What is the IRRHPP Award list?

    The award list is the ranked IRRHPP projects that have been 
identified for current year IRRHPP funds, assuming that all current 
year IRRHPP funds are available for non-emergency projects.


Sec. 170.256  What is the timeline for the IRRHPP, other than 
emergency/disaster projects, for any given fiscal year?

    The timeline is as follows:
    (a) BIADOT will accept applications through March 1 of each 
year.BIADOT notifies all applicants and Regions of receipt and 
completeness of application within 30 days of receipt;
    (b) During May and June BIADOT and FHWA rank all complete 
applications;
    (c) August 1 BIADOT notifies applicants of award;
    (d) BIADOT transfers funds to respective Regions of selected IRRHPP 
projects no later than September 1;
    (e) Regions must obligate funds by September 15; and
    (f) September 16 BIADOT redistributes un-obligated funds.


Sec. 170.257  How does the award of an emergency/disaster project 
application affect projects on the IRRHPP Award List?

    Emergency/disaster projects are funded from October 1--August 31. 
Projects on the IRRHPP Award List are funded based upon order of rank 
until current year funds are allocated to IRRHPP projects. Projects not 
funded will retain order of rank and be placed at the top of the award 
list the following year, without resubmission of application. Projects 
that were not ranked high enough to be placed on the IRRHPP Award List 
must be resubmitted.

[[Page 51372]]

Population Adjustment Factor (PAF)


Sec. 170.263  What is the PAF?

    The PAF is a special distribution calculated annually that provides 
for broader participation in the IRR Program by tribes (or federally 
recognized governmental subdivision of a tribe that is authorized to 
administer its own IRR funding) based upon the following population 
ranges and distribution factors (as further explained in Appendix B to 
subpart C ):

----------------------------------------------------------------------------------------------------------------
                                          Distribution                                 Funding amount per tribe
            Population range                 factor           Number of tribes*        (minimum base allocation)
----------------------------------------------------------------------------------------------------------------
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
10,000+................................               8  N5                           MBA  x  8
----------------------------------------------------------------------------------------------------------------
* The number of tribes in a given population range may vary from year to year.

Sec. 170.264  What is the distribution factor?

    As shown in the table Sec. 170.263, the distribution factor is the 
multiplier used to determine the relative PAF funding between 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.


Sec. 170.265  What funding levels are available for distribution based 
on the PAF?

    When the yearly amount authorized and appropriated to the IRR 
program exceeds $275,000,000, then 12.5% of the increase over 
$275,000,000, after takedowns, is available for distribution.


Sec. 170.266  What is the Minimum Base Allocation (MBA)?

    The MBA is the dollar value to be multiplied by the distribution 
factor for each population range to determine the distribution of the 
PAF. The MBA calculation is as follows:
[GRAPHIC] [TIFF OMITTED] TP07AU02.001

Sec. 170.267  What population data is used to determine the PAF?

    The population data used to determine PAF is the same data as used 
for the Population component of the Relative Need Distribution Factor.

Relative Need Distribution Factor


Sec. 170.270  What is the Relative Need Distribution Factor?

    The Relative Need Distribution Factor is a mathematical formula for 
distributing the IRR construction funds using the following three 
factors: Cost-to-Construct (CTC), Vehicle Miles Traveled (VMT), and 
Population (POP). The Relative Need Distribution Factor is as follows:
A =   x  {CTC  Total C} +   x  {VMT  
Total VMT} +   x  {POP  Total POP}
Where:
A = % 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 in the IRR 
inventory
POP = Population of an individual tribe
Total POP = Total population for all tribes
, ,  = 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%

    If 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


Sec. 170.271  What is the Cost-to-Construct component in the Relative 
Need Distribution Factor?

    The Cost-to-Construct component measures the estimated cost of a 
tribe's transportation projects as a percentage of the estimated cost 
nationally of all tribes' transportation facilities. Costs are derived 
from the IRR inventory of eligible IRR transportation facilities 
developed and approved by tribal governments through Long-Range 
Transportation Plans (LRTPs).


Sec. 170.272  What is the Cost-to-Construct for an individual tribe?

    The Cost-to-Construct for an individual tribe is the sum of all 
project costs from the tribe's IRR Inventory.


Sec. 170.273  What is the BIA methodology of estimating construction 
costs for transportation facilities?

    On an interim basis, the methodology for calculating the Cost-to-
Construct is the simplified approach identified in the Cost-to-
Construct (Appendix C of this subpart).


Sec. 170.274  How may BIA and FHWA revise the method for calculating 
the Cost-to-Construct component of the Relative Need Distribution 
Factor?

    BIA and FHWA, in partnership with the IRR Program Coordinating 
Committee, will consider revising the method for calculating the Cost-
to-Construct component of the Relative Need Distribution Factor. BIA 
and FHWA may incorporate the following elements in the new methodology:
    (a) Include costs for all eligible IRR projects, including 
transportation facilities that are not roads or bridges;
    (b) Take into account regional cost differences while maintaining 
the integrity of the system by, for example, using an average of local 
tribal costs,

[[Page 51373]]

national tribal costs, and the state project costs from the tribe's 
local area to derive the underlying cost data from which estimates are 
generated;
    (c) Generate and report total costs by project and tribe;
    (d) Create templates that can be easily used at the tribal level;
    (e) Include as project costs:
    (1) Project Planning;
    (2) Project Administration;
    (3) Preliminary Engineering;
    (4) Construction;
    (5) Project Bid Items;
    (6) Construction Engineering;
    (7) Quality Control; and
    (8) Permits, fees and taxes.


Sec. 170.275  What is the source of the construction cost used to 
generate the CTC?

    The construction cost is derived from the average of the following 
three project bid tabulation sources:
    (a) Tribal bid tabulations;
    (b) State bid tabulations for the region of the State in which the 
tribe's project will be constructed;
    (c) National IRR programs bid tabulations; and
    (d) If one or more of these bid tabulation sources is unavailable, 
use the average of the available sources.


Sec. 170.276  Do all IRR facilities identified in the IRR Inventory 
count in the Relative Need Distribution Factor at 100% of their CTC and 
VMT?

    No. The CTC and VMT for any facility that is included in or added 
to the IRR Inventory and is eligible for funding for construction or 
reconstruction with Federal funds, other than IRR or Public Lands 
Highways (PLH) funds, must be computed at the non-federal share 
requirement for matching funds. If, however, the facility falls into 
one or more of the following categories, then the CTC and VMT factors 
must be computed at 100%:
    (a) All transportation facilities approved and included in the BIA 
system for funding purposes prior to these regulations; or
    (b) Any facility that is not eligible for funding for construction 
or reconstruction with Federal funds, other than IRR or PLH funding; or
    (c) The state, municipality, county, or federal agency provides 
certification of inability to provide funding for the project and 
agrees to maintain the completed project under 23 U.S.C. 116.


Sec. 170.278  What is the VMT component of the Relative Need 
Distribution Factor and how is it calculated?

    VMT is a measure of the IRR transportation system use. VMT is 
calculated using the sum of the length of IRR route segments in miles 
multiplied by the Average Daily Traffic (ADT) of the route segment.


Sec. 170.279  What IRR route segments are used to calculate VMT?

    All IRR route segments in the IRR Inventory are used to calculate 
VMT, but percentage factors are applied.


Sec. 170.282  What is the Population component of the Relative Need 
Distribution Factor and how is it determined?

    The population component is a factor used to define transportation 
need based on the number of American Indian or Alaska Native people 
served. On an interim basis, the population component will use data 
that is the on- and near-reservation service area population from the 
most recently published BIA Labor Force Report. The population data of 
the American Indian and Alaska Native Service Population developed by 
the Department of Housing and Urban Development, pursuant to the Native 
American Housing Assistance and Self-Determination Act (NAHASDA), will 
become the population component used, after the NAHASDA data is updated 
to reflect the 2000 or subsequent census data.

General Data Appeals


Sec. 170.285  May a tribe challenge the Cost-to-Construct, Vehicle 
Miles Traveled, and Population data BIA uses in the Relative Need 
Distribution Factor?

    Yes, a tribe may submit a request to the Regional Director that it 
revise the data for the tribe that BIA uses in the Relative Need 
Distribution Factor. Such a request must include any relevant data in 
the tribe's possession, together with written support for its 
contention that such data is more accurate than the data the BIA uses 
for the tribe. The Regional Director must respond within 30 days of 
receipt of a Relative Need Distribution Factor data correction request.


Sec. 170.286  When may a tribe submit a Relative Need Distribution 
Factor data correction request?

    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.


Sec. 170.287  When must a data correction request be approved?

    Unless the Regional Director determines that the existing BIA data 
is more accurate, the Regional Director must approve the tribe's data 
correction request and accept the tribe's corrected data. If the 
Regional Director disapproves the tribe's request, the Regional 
Director's decision must include a detailed written explanation of the 
reasons for the disapproval, copies of any supporting documentation the 
Regional Director relied upon in reaching the decision (other than the 
tribe's request), and notice of the tribe's right to appeal the 
decision. If the Regional Director does not approve the tribe's request 
within 30 days of receipt of the request, the request must be deemed 
disapproved.


Sec. 170.288  How does a tribe appeal a disapproval from the Regional 
Director?

    (a) Within 30 days of receipt of a disapproval, or within 30 days 
of a disapproval by operation of law, a tribe may file a written notice 
of appeal to the Deputy Commissioner of Indian Affairs, with a copy 
served upon the Regional Director; and
    (b) Within 30 days of receipt of an appeal, the Deputy Commissioner 
must issue a written decision upholding or reversing the Regional 
Director's disapproval. Such a written decision must include a detailed 
written explanation of the reasons for the disapproval, copies of any 
supporting documentation the Deputy Commissioner 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 pursuant to 25 CFR part 2.

IRR Inventory and Long-Range Transportation Planning (LRTP)


Sec. 170.290  How is the IRR Inventory used in the Relative Need 
Distribution Factor?

    The IRR Inventory as defined in Sec. 170.445 identifies the 
transportation need by providing the data used to generate the CTC and 
VMT components of the Relative Need Distribution Factor.


Sec. 170.291  How is the IRR inventory developed?

    The IRR Inventory is developed through the LRTP process, as defined 
in Sec. 170.427.


Sec. 170.292  Are all facilities included in the IRR Inventory used to 
calculate CTC?

    No, projects that have been constructed to their design standard 
are not eligible for inclusion for purposes of applying the CTC portion 
of the formula for a period of 5 years after completion of the project.

[[Page 51374]]

Sec. 170.294  Is there a difference for funding purposes between the 
old BIA Roads Inventory and the IRR Inventory?

    Yes, the IRR Inventory defined in this part expands the BIA Roads 
Inventory for funding purposes, it includes:
    (a) All roads, bridges, and other eligible transportation 
facilities that were previously approved in the BIA system inventory in 
1992 and each subsequent year thereafter;
    (b) All miles of road that have been constructed using Highway 
Trust Funds (IRR) since 1983;
    (c) All IRR routes;
    (d) Non-road facilities; and
    (e) Other IRR eligible projects.


Sec. 170.295  Who is responsible for maintaining the National IRR 
Inventory Database?

    BIA Regional offices are responsible for maintaining, certifying, 
and entering the data for their region's portion of the National IRR 
Inventory Database.


Sec. 170.296  How is the IRR Inventory kept accurate and current?

    The IRR Inventory data for a tribe is updated on an annual basis as 
follows:
    (a) The BIA Regional Offices provide the tribes in the region a 
copy (electronic and hard copy) of the IRR Inventory by November 1st of 
each year;
    (b) The tribe may review the data and advise the Regional Office of 
errors or omissions. The tribe submits additions and deletions to the 
IRR Inventory along with authorizing resolutions by May 1;
    (c) The BIA Regional Office reviews the tribes' submission for 
errors or omissions and provides the tribes with their revised 
inventories by July 1;
    (d) The tribe must correct any errors or omissions by August 1;
    (e) The BIA Regional Offices certify the data and enter the data 
into the national IRR Inventory database. Certification of the data 
must be completed by September 1 for use in the Relative Need 
Distribution Factor for the following fiscal year;
    (f) BIA provides the tribes with a copy (electronic and hard copy) 
of the Relative Need Distribution Factor distribution percentages by 
October 1; and
    (g) The BIA DOT will approve all submissions from the BIA Regional 
Offices for inclusion into the National IRR Inventory.


Sec. 170.297  Is transportation planning included in the IRR Inventory 
and IRR Transportation Improvement Program (TIP)?

    No, only project-specific transportation activities are included in 
the Inventory and TIP.


Sec. 170.298  Why exclude transportation planning from the TIP and the 
IRR Inventory?

    Including routine transportation planning creates an undue 
administrative burden on BIA and tribes. The Inventory is used to 
generate the CTC and VMT components of the Relative Need Distribution 
Factor. Excluding non-project related planning does not affect the 
integrity of the inventory.


Sec. 170.299  What are the responsibilities of the IRR Program 
Coordinating Committee for funding issues?

    Committee responsibilities are to provide input and recommendations 
to BIA and FHWA during the development or revision of:
    (a) New IRR Inventory Data Format and Form;
    (b) Simplified Cost to Construct Methodology;
    (1) Formula Calculations;
    (2) Formula Program and Design;
    (3) Bid Tab Methodology;
    (c) Cost Elements, not just roads;
    (d) Over-Design Issues;
    (e) Inflation Impacts on $1 Million Cap for IRRHPP and Emergency 
Projects;
    (1) IRRHPP Ranking System;
    (2) Emergency/disaster expenditures Report; and
    (f) Impact of including funded but non-constructed projects in CTC 
calculation.

Long-Range Transportation Planning


Sec. 170.300  How does the LRTP process relate to the Relative Need 
Distribution Factor?

    The LRTP process, as explained in subpart D (Sec. 170.427--170.432) 
is a uniform process by which the transportation needs and priorities 
of the tribes are identified. The IRR Inventory is derived from 
projects identified through the LRTP. It is also a means for 
identifying projects for the IRRHPP Program.


Sec. 170.301  Are there cost constraints in the transportation needs 
identified in the LRTP?

    No, since the purpose of the LRTP is to identify need, it is not 
constrained by costs.


Sec. 170.302  What are the minimum requirements for a tribe's LRTPs?

    At a minimum, the LRTP must:
    (a) Document the tribe's public involvement;
    (b) List the tribe's eligible IRR projects, costs estimates, and 
VMT data;
    (c) Include inventory data forms for eligible IRR projects;
    (d) Describe the tribe's strategy for meeting its transportation 
need;
    (e) Provide documentation from other agencies regarding 
coordination of projects involving the other agencies; and
    (f) Attach official tribal endorsement of LRTP.


Sec. 170.303  Are all transportation projects identified on the tribe's 
LRTP used to calculate the tribe's allocation of the national 
allocation?

    No, the tribe's LRTP may include any transportation need or project 
of the tribe, but only eligible IRR facilities are included in the IRR 
Inventory and used to calculate the tribe's allocation.

Flexible Financing


Sec. 170.350  May tribes use flexible financing to finance IRR 
transportation projects?

    Yes, Tribes are entitled to use the flexible financing provisions 
in Title 23 U.S.C. in the same manner as States to finance IRR 
transportation projects, unless otherwise prohibited by law.


Sec. 170.351  How may tribes finance IRR transportation projects that 
secure payment with IRR funds?

    Tribes may issue bonds or enter into other debt financing 
instruments under 23 U.S.C. 122 with the expectation of payment of IRR 
funds to satisfy the instruments.


170.352  Can the Secretary of Transportation execute a federal credit 
instrument to finance IRR projects?

    Yes, under 23 U.S.C. 182 and 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.


Sec. 170.353  Can a tribe use IRR funds as collateral?

    Yes, a tribe can use IRR funds as collateral for loans or bonds to 
finance IRR projects. Upon the request of a tribe, the BIA region will 
assist the tribe by providing necessary documentation to banks and 
other financial institutions.


170.354  Can a tribe use IRR funds to leverage other funds?

    Yes, a tribe can use IRR funds to leverage other funds.


170.355  Can BIA regional offices borrow IRR funds from each other to 
assist in the financing and completion of an eligible IRR project?

    Yes, Regional offices, in consultation with tribes, may enter into 
agreements to borrow IRR funds to assist another BIA regional office in 
financing the

[[Page 51375]]

completion of IRR projects. These funds must be repaid within the next 
fiscal year. No such agreements can be executed during the last year of 
a transportation authorization act unless IRR funds have been 
authorized for the next year.


Sec. 170.356  Can a tribe use IRR funds to pay back loans?

    A tribe may use IRR funds to pay back loans or other finance 
instruments for a project that:
    (a) The tribe paid for in advance of the current year using non-IRR 
Program funds; and
    (b) Was included in FHWA-approved IRR TIP.


Sec. 170.357  Can a tribe apply for loans or credit from a state 
infrastructure bank?

    Yes. Upon the request of a tribe, the 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
(a) Accident and fatality rate for  Severe...............  .....................  Moderate.............  Minimal.............  No accidents.
 proposed route \1\.
(b) Years since last IRR            Never................  Last project more      Last project 5-9       Last project within   Currently has project.
 construction project completed.                            than 10 years ago.     years ago.             last 1 to 4 years.
(c) Readiness to Proceed to         PS&E Complete........  Bridge Replacement     Bridge Rehabilitation
 Construction or IRRBP Design Need.                         PS&E development       PS&E development
                                                            project.               project.
(d) Percentage of project matched   .....................  80% or more by other   20-79% by other funds  1-19%...............  No other funds.
 by other funds.                                            funds.
(e) Amount of funds requested.....  .....................  250,000 or less......  250,001-500,000......  500,001-750,000.....  Over 750,000.
(f) Geographic isolation..........  No external access to  Substandard Primary    Substandard Secondary  Substandard access
                                     community.             access to community.   access to community.   to tribal facility.
(g) All weather access for:.......  Addresses all 6        Addresses 4 or 5       Addresses 3 elements.  Addresses 2 elements  Addresses 1 element.
(1) employment....................   elements.              elements.
(2) commerce......................
(3) health........................
(4) safety........................
(5) educational resources.........
(6) housing.......................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ National Highway Traffic Safety Board standards.
 
 Note: In the event of a tie, the IRR Program Coordinating Committee will determine which project is funded considering accident rates, no prior
  project, and no access, and available funding.

Appendix B to Subpart C--Population Adjustment Factor

    The Population Adjustment Factor allows for participation in the 
IRR Program by all tribes. This funding formula reservation allocates a 
set amount of funds each fiscal year to a tribe based on the population 
range within which the tribe is included, as follows:

                                    Example Using $350 Million Authorization
----------------------------------------------------------------------------------------------------------------
                                                   Distribution                     Funding per    Total funding
     Population range (step)       No. of tribes      factor        Step factor        tribe         per step
----------------------------------------------------------------------------------------------------------------
Less than 25....................              17               1              17          $3,216         $54,665
25-100..........................              66             3.5             231          11,255         742,797
101-1000........................             309               5            1545          16,078       4,968,059
1001-10,000.....................             137             6.5             890          20,901       2,863,467
10,000+.........................              29               8             232          25,725         746,013
                                 -------------------------------------------------------------------------------
    Total.......................  ..............  ..............    \1\ 2,915.50  ..............      9,375,000
----------------------------------------------------------------------------------------------------------------
\1\ Total step factor.

    The steps to calculate the Population Adjustment Factor are 
applied as follows:
    (a) For each population range, multiply the Distribution Factor 
by the total number of tribes identified in the population range 
(Step);
    (b) Sum the products of the multiplication in step 1 above to 
derive a Total Step Factor; Calculate the Difference between the IRR 
Authorization for the Allocation Year and the 1999 IRR Authorization 
($275 Million);
    (c) Derive an Annual Adjustment Factor by dividing 12 1/2% of 
the Difference (step 3 above) by the Total Step Factor; and
    (d) Calculate Population Adjustment Factor within each 
Population Range by multiplying the Distribution Factor for the 
Population Range by the Annual Adjustment Factor.
    The mathematical equation for the Population Adjustment Factor 
calculation is as follows:

[[Page 51376]]

[GRAPHIC] [TIFF OMITTED] TP07AU02.002

PAF = Population Adjustment Factor
DF = Distribution Factor
$A = IRR Authorization in Allocation Year
$275MM = IRR Authorization in 1999
n = The nth Population Range
1...5 = Population Ranges 1 through 5
Nn = Number of Tribes in the nth Population Range
[GRAPHIC] [TIFF OMITTED] TP07AU02.003

[GRAPHIC] [TIFF OMITTED] TP07AU02.004

    The Minimum Base calculation is as follows:
    [GRAPHIC] [TIFF OMITTED] TP07AU02.005
    
MBA = Minimum Base Allocation
Distribution Factors = 1, 3.5, 5, 6.5, and 8
$A = IRR Authorization in Allocation Year
n = The nth Population Range
1...5 = Population Ranges 1 through 5
Nn = Number of Tribes in the nth Population Range

    The Population Adjustment Factor (PAF) calculation is as follows:

PAFn = MBA  x  Dfn
PAF = Population Adjustment Factor
MBA = Minimum Base Allocation
DF = Distribution Factor
n = The nth Population Range
1...5 = Population Ranges 1 through 5

    Examples of the Population Adjustment Factor calculation for $350 
Million Authorization:
[GRAPHIC] [TIFF OMITTED] TP07AU02.006

PAFn = MBA  x  Dfn
PAF1 = $3,215.57  x  1.00 = $3,215.57 = PAF Funding per 
Tribe for Step 1
PAF2 = $3,215.57  x  3.50 = $11,254.50 = PAF Funding per 
Tribe for Step 2
PAF3 = $3,215.57  x  5.00 = $16,077.86 = PAF Funding per 
Tribe for Step 3
PAF4 = $3,215.57  x  6.50 = $20,901.22 = PAF Funding per 
Tribe for Step 4
PAF5 = $3,215.57  x  3.50 = $25,754.58 = PAF Funding per 
Tribe for Step 5

                     Population Adjustment Factor Calculated for $300 Million Authorization
           [Authorization--$300,000,000; Increase > $275MM, $25,000,000; Pop. Adj. Factor--$3,125,000]
----------------------------------------------------------------------------------------------------------------
                                                                                                   Total funding
        Population range           No. of tribes   Distribution     Step factor     Funding per   for population
                                                      factor                           tribe           range
----------------------------------------------------------------------------------------------------------------
0 to 24.........................              17            1.00            17.0       $1,071.86         $18,222
25 to 100.......................              66            3.50           231.0        3,751.50         247,599
101 to 1,000....................             309            5.00         1,545.0        5,359.29       1,656,020
1,001 to 10,000.................             137            6.50           890.5        6,967.07         954,489
10,000+.........................              29            8.00           232.0        8,574.86         248,671
                                 -------------------------------------------------------------------------------
                                             558                     \1\ 2,915.5                       3,125,000
    Pop. adj. factor: 3,125,000
----------------------------------------------------------------------------------------------------------------
\1\ Total step factor.


[[Page 51377]]

Appendix C to Subpart C--Cost-to-Construct

(Appendix C includes Tables 1-7)

    This method utilizes the basic concepts of the Bureau of Indian 
Affairs' ``Simplified Approach to Compute the Cost-to-Construct''. 
The BIA concept has been modified, under this proposed method, to 
include computing costs for High Capacity Roads (multi-lane roads), 
non-road projects (snowmobile trails, boardwalks, footpaths, etc.) 
and other eligible projects.
    This method offers a straightforward approach to calculate the 
Cost-to-Construct and is relatively easy to check. The theory behind 
this method is that the inventory and project need databases are 
used to determine, within reasonable limits, the costs of a new 
transportation facility or in the case of an existing facility, the 
existing condition of the facility and the costs that will be 
necessary to construct the facility to an adequate standard. For 
example, the Cost-to-Construct for a particular section of IRR 
system road is the cost required to improve the road's existing 
condition to a condition that would meet the Adequate Standard 
Characteristics. (see Table 1) Further, the standards for the 
geometrics and surface type for a roadway vary based on the road's 
functional classification, average daily traffic, and terrain. The 
Adequate Standard Characteristics table also includes standards for 
High Capacity roads and intermodal facilities.
    The simplified approach will use cost indexes for five 
categories of cost. Four of the categories are Grade and Drain 
Costs, Aggregate Costs, Pavement Costs, and Incidental Costs. 
Information from the inventory database must provide an indication 
of the need for construction in each of these four categories. The 
fifth category, Bridge Costs, are derived from the BIA Bridge Study. 
The simplified approach includes no systematic method for indexing 
Rights-of-Way, Bridge, other pre-construction costs, and other 
transportation facilities.
BILLING CODE 4310-LY-P

[[Page 51378]]

[GRAPHIC] [TIFF OMITTED] TP07AU02.007


[[Page 51379]]



                                                              Table 2.--Future Surface Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
           Const. need             Adequate Std. No.     BIA system class    Class No.            ADT +20                       Surface type
--------------------------------------------------------------------------------------------------------------------------------------------------------
4...............................  1, 2, 3, 4, 5, 6...  Rural Minor                    2  400-10,000                Paved.
                                                        Arterials.
4...............................  16, 17, 18.........  Rural Major                    1  > 10,000                  Paved.
                                                        Arterials.
4...............................  10, 11, 12.........  Rural Locals.......            5  51-399                    Gravel.
4...............................  13.................  Minor Arterial.....            4  400-10,000                Paved.
4...............................  14.................  Collector..........            4  251-399                   Paved.
4...............................  15.................  Local..............            3  50-250                    (Earth, Gravel, Paved)*.
1...............................  7, 8, 9............  Rural Major                    4   50                       Earth.
                                                        Collector.                       **50-250                  Gravel.
                                                                                         >250                      Paved.
1...............................  10, 11, 12.........  Rural Locals.......            5   50                       Earth.
                                                                                         **50-250                  Gravel.
                                                                                         **>250                    Paved.
1...............................  15.................  Local..............            3   50                       Earth.
                                                                                         **50-250                  Gravel.
                                                                                         **>250                    Paved*.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Local class 3 roads may be earth, gravel or paved depending on tribal customs, economics or environmental conditions.
** Use default ADT +20 where impractical to acquire ADT's or ADT is zero. Where volumes are practical to acquire, they should be acquired, and traffic
  projected at 2% per year.

A. Basic Procedures

    1. A long-range plan must be developed for those tribes without 
data or that lack inventory data and updated for those tribes that 
have existing inventory systems. The plan would identify the system, 
collect the inventory data and create cost estimates for all 
``Needs.'' Once the inventory database is current and project need 
is identified, the cost-to-construct for those projects can be 
developed. The method for determining the estimated cost to 
construct of a proposed transportation project is accomplished 
through the following step-by-step process:
    (a) Determine Future Surface Type for project (see table 2);
    (b) Calculate 20 year Projected ADT based upon tribal economic 
and transportation development planning;
    (c) Determine Class of project, e.g., local, rural local, rural 
major collector, other, utilizing projected ADT;
    (d) Identify project terrain as flat, rolling, or mountainous;
    (e) Identify Adequate Standard Characteristics (ASC) by applying 
Class, 20 year Projected ADT, and Terrain to ASC (see Table 1);
    (f) Identify the project's estimated construction cost per 
standard industry measurement (SIM) (e.g., cost per mile, cost per 
linear foot) for the following components of construction: 
Aggregate, Paving, Grade/Drain, and Incidental (see tables 3-7);
    (g) Multiply the estimated construction cost per SIM for each 
component of construction by the length of the route or proposed 
project to determine the estimated cost for each component of 
construction; and
    (h) Calculate the estimated cost for the route or proposed 
project by adding together the estimated costs for each component of 
construction.
    2. The method for determining the estimated cost to reconstruct 
or rehabilitate an existing transportation project is determined in 
the same manner as a proposed transportation project, except that 
the existing condition of the project is evaluated to determine the 
percentage to be applied to the estimated cost for each component of 
construction that will be included in the estimated cost for 
reconstruction:
    (a) Evaluate existing condition of road or reconstruction 
project in accordance with applicable management systems, guidelines 
or other requirements;
    (b) Identify percentage of allowable estimated cost for each 
component of construction by applying the Adequate Standards 
Characteristics (ASC) and existing condition to the percent cost 
requirement tables for aggregate, paving, grade/drain, incidental, 
and bridge;
    (c) Multiply estimated construction cost for each component of 
construction by the corresponding percentage of allowable estimated 
cost to determine the estimated reconstruction cost for each 
component; and
    (d) Calculate the estimated reconstruction cost by adding 
together the estimated reconstruction costs for each component of 
construction.
    3. The Average Daily Traffic (ADT) for existing and proposed 
roads is determined by measuring either actual traffic counts, 
estimated traffic counts based on industry standard modeling 
methods, or the following default values: Functional Class 2 roads 
is 100 ADT, Functional Class 4 roads is 50 ADT, Functional Class 3 
Streets-roads is 25 ADT, and Functional Class 4 motorized Trails is 
20 ADT. Functional Class 1 roads must have an actual ADT greater 
than 10,000. This traffic count data is incorporated into the IRR 
road inventory for application into the RNF Cost-to-Construct 
calculations.
    4. The 20-year projected ADT is calculated using growth rates 
established by current industry models or by a minimum default using 
a 2% growth rate, except where the default is used for ADT then the 
following values apply: Class 2 roads is 100 ADT+20, Class 4 roads 
is 50 ADT+20, Class 3 (Streets) is 25 ADT+20, and Motorized Trails 
is 20 ADT+20.
    5. Functional Classification. As a part of the IRR Inventory 
system management, all facilities included on or added to the IRR 
System must be classified according to the following functional 
classifications as follows (Ref. Sec. 170.456):
    (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: Major or 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 which 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-roads which are located within communities 
serving residential and other urban type settings.
    (d) Class 4: Section line and/or stub type roads which 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 
utilization purposes. This classification encompasses all those 
public roads not falling into either the Class 2 or 3 definitions 
above.
    (e) Class 5: This classification encompasses all non-road type 
paths, trails, walkways, or other designated types of routes for 
public use by foot traffic, bicycles, trail bikes, or other uses to 
provide for general access of non-motorized traffic.
    (f) Class 6: This classification encompasses other modes of 
transportation such as public parking facilities adjacent to IRR 
routes and scenic byways, rest areas, and other scenic pullouts, 
ferry boat terminals, and transit terminals.
    (g) Class 7: This classification encompasses airstrips which are 
within the boundaries of the IRR system grid and are open to the

[[Page 51380]]

public. These airstrips are included for inventory and maintenance 
purposes only.
    6. 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 3 presents a 
summary of the proposed method of estimating grade and drain costs 
based on the existing roadbed condition observed in the inventory 
update. To implement this proposed procedure, a one-digit data field 
in the inventory database needs to be created for roadbed condition.

             Table 3.--Percent Grade and Drain Cost Required
------------------------------------------------------------------------
                     Roadbed condition                       Percent \1\
------------------------------------------------------------------------
Proposed Road..............................................          100
Primitive Trail............................................          100
Bladed Unimproved Earth Road, Poor Drainage, Poor Alignment          100
Minimum Built-up Roadbed (Shallow cuts and fills) with               100
 inadequate drainage and alignment that generally follows
 existing ground...........................................
A designed and constructed roadbed with some drainage and            100
 alignment improvements required...........................
A roadbed constructed to the adequate standards with good              0
 horizontal and vertical alignment and proper drainage.....
A roadbed constructed to adequate standards with curb and              0
 gutter on one side........................................
A roadbed constructed to adequate standards with curb and             0
 gutter on both sides......................................
------------------------------------------------------------------------
\1\ Percent grade and drain cost required.

B. Aggregate Costs

    The costs of providing the surface or subsurface defined by the 
adequate standard will vary depending on the type of surface 
required. (see Table 1)

                                    Table 4.--Percent Aggregate Cost Required
   [Table 4 summarizes the percentage of aggregate costs for all possible scenarios of existing conditions and
                                         recommended surface conditions]
----------------------------------------------------------------------------------------------------------------
                                                                     Future surface type
                                            --------------------------------------------------------------------
           Existing surface type                                                      Gravel           Earth
                                                       Paved  (percent)              (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
         Adequate Standard Surface
 
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 condition of the surface requires reconstruction then use 100% of aggregate cost.

C. Pavement (Surface) Costs

    Table 5 summarizes the percentage of pavement (surface) costs 
for existing conditions and recommended surface types. Pavement 
overlays are calculated at 100 percent of the pavement costs.

                                   Table 5.--Percent of Surface Cost Required
----------------------------------------------------------------------------------------------------------------
                                                                     Future surface type
                                            --------------------------------------------------------------------
           Existing surface type                                                      Gravel           Earth
                                                       Paved  (percent)              (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
         Adequate Standard Surface
 
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 condition of the surface requires reconstruction then use 100% of surface cost.

D. Incidental Costs

    1. The following incidental cost items are generally required if 
a project includes construction or reconstruction of the roadbed.
    (a) Clearing and Grubbing.
    (b) Construction Surveying.
    (c) Construction Inspection.
    (d) Materials Testing.
    (e) Mobilization.
    (f) Guard Rails.
    (g) Miscellaneous Pipe.
    (h) New Traffic Control Devices.
    (i) Signage.
    (j) Other Minor Incidentals.
    (k) Concrete Barriers.
    (l) Obstruction Removal.
    (m) Pavement Removal.
    (n) Temporary Traffic Control.
    (o) Construction Inspection.
    (p) Material Testing.
    (q) Mobilization.
    (r) New Traffic Control.
    (s) Temporary Traffic Control.
    (t) Fencing.
    (u) Landscaping.

[[Page 51381]]

    (v) Structural Concrete.
    (w) Traffic Signals.
    (y) Utilities.
    2. Table 6 accounts for those incidental construction costs 
normally found on a typical project. If any of the other items are 
required as show in Table 7, the appropriate percentage should be 
added to the percentage in Table 6.

         Table 6.--Percent Incidental Construction Cost Required
------------------------------------------------------------------------
                                                          Maintenance of
                                           New alignment      traffic
            Roadbed condition              (in percent)    required  (in
                                                             percent)
------------------------------------------------------------------------
Proposed Road...........................              65             N/A
Primitive Trail.........................              65             N/A
Bladed Unimproved Earth Road, Poor                    65             N/A
 Drainage, Poor Alignment...............
Minimum Built-up Roadbed (shallow cuts               N/A              75
 and fills) with inadequate drainage and
 alignment that generally follows
 existing ground........................
A designed and constructed roadbed with              N/A              75
 some drainage and alignment
 improvements required..................
A roadbed constructed to the adequate                N/A              30
 standards with good horizontal and
 vertical alignment and proper drainage.
 Requiring surfacing....................
A roadbed constructed to adequate                    N/A              30
 standards with curb and gutter on one
 side. Requiring surfacing..............
A roadbed constructed to adequate                    N/A              30
 standards with curb and gutter on both
 sides. Requiring surfacing.............
------------------------------------------------------------------------


                           Table 7.--Percent Additional Incidental Construction Costs
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Fencing......................................  1% of Total Incidental Construction Costs.
Landscaping..................................  9% of Total Incidental Construction Costs.
Structural Concrete..........................  9% of Total Incidental Construction Costs.
Traffic Signals..............................  3% of Total Incidental Construction Costs.
Utilities....................................  3% of Total Incidental Construction Costs.
----------------------------------------------------------------------------------------------------------------

Subpart D--Planning, Design, and Construction of Indian Reservation 
Roads Program Facilities

Transportation Planning


Sec. 170.400  What is the purpose of transportation planning?

    Transportation planning develops a vision of the future which 
guides decision-making today. The transportation planning process 
results in a short- and long-range transportation plan. 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 transportation planning functions and activities 
must BIA perform for the IRR Program?

    The activities and functions that BIA must perform for the IRR 
Program are:
    (a) Preparing the regional IRR TIP and IRR Inventory data updates 
as required;
    (b) Coordinating with States and their political subdivisions, 
metropolitan planning offices (MPO's) and rural planning offices 
(RPO's) on IRR regionally significant projects;
    (c) Providing technical assistance to tribal governments and 
developing IRR budgets including transportation planning cost 
estimates;
    (d) Facilitating public involvement and participating in planning 
and other transportation-related meetings;
    (e) Performing traffic studies, preliminary project planning, and 
special transportation studies;
    (f) Developing short and long-range transportation plans;
    (g) Mapping;
    (h) Developing and maintaining management systems;
    (i) Transportation planning for operational and maintenance 
facilities; and
    (j) Researching of rights-of-way documents for project planning.


Sec. 170.402  What transportation planning functions and activities 
must tribes perform under a self-determination contract or self-
governance agreement?

    Tribes must prepare a tribal TIP (TTIP). Tribes may also perform 
other transportation planning activities such as:
    (a) Coordinating with States and their political subdivisions, 
MPO's and RPO's on IRR regionally significant projects;
    (b) Preparing IRR Inventory data updates;
    (c) Obtaining public involvement;
    (d) Performing traffic studies;
    (e) Developing short- and long-range transportation plans;
    (f) Mapping;
    (g) Developing and maintaining tribal management systems;
    (h) Participating in transportation planning and transportation-
related land use planning and other transportation related meetings;
    (i) Performing transportation planning for operational and 
maintenance facilities;
    (j) Developing IRR budget, including transportation planning cost 
estimates;
    (k) Performing special transportation studies, as appropriate;
    (l) Researching rights-of-way documents for project planning; and
    (m) Performing preliminary project planning.


170.403  Who performs transportation planning for the IRR Program?

    BIA and tribal governments perform transportation planning for the 
IRRProgram.


Sec. 170.404  What IRR funds can be used for transportation planning?

    Up to 2 percent of the IRR funds are reserved for transportation 
planning for tribal governments as provided for under section 204(j) of 
Title 23. A tribe may make a request to the BIA regional office to 
enter into a self-determination contract or self-governance agreement 
for transportation planning activities and functions under the ISDEAA, 
or it may request a travel authorization to attend transportation 
planning functions and related activities using these funds.


Sec. 170.405  How must tribes use planning funds?

    IRR 2 percent transportation planning funds are only available for 
tribal governments. These funds support the development and 
implementation of the tribal transportation planning process and 
associated strategies for identifying their intermodal transportation 
needs. This can include attending

[[Page 51382]]

transportation planning meetings, pursuing other sources of funds, 
development of the tribal priority list or any of the transportation 
functions/activities as defined in the IRR Transportation Planning 
PolicyGuide (TPPG).


Sec. 170.406  Can IRR construction funds be used for transportation 
planning activities?

    Yes, Tribes may identify transportation planning as a priority in 
their tribal priority list or TTIP. Tribes may use up to 100 percent of 
their IRR construction funds for transportation planning.


Sec. 170.407  Can IRR 2 percent planning funds be used for road 
construction and other projects?

    Yes, any tribe can request to have its planning funds transferred 
into construction funds for use on any eligible and approved IRR 
project.


Sec. 170.408  What happens to 2 percent planning funds unobligated 
after August 15?

    Once all tribal governments' requests for 2 percent funds have been 
satisfied for a given fiscal year the BIA regional office may roll the 
unobligated balances into construction funds after consultation with 
the affected tribal governments.


Sec. 170.409  What is pre-project planning?

    Pre-project planning includes the activities conducted before 
project approval on the IRR TIP. Such activities include preliminary 
project cost estimates, certification of public involvement, 
cooperation with States and/or MPO's for a regionally significant 
project, preliminary needs assessments, and preliminary environmental 
and archeological reviews for the development of the project.


Sec. 170.410  How is the IRR Program transportation planning funded?

    As provided in 23 U.S.C. 204, IRR Program funds are available for 
transportation planning.
    The Transportation Improvement Program Process Chart follows:
    [GRAPHIC] [TIFF OMITTED] TP07AU02.008
    
BILLING CODE 4310-LY-C


Sec. 170.411  What is the State Transportation Improvement Program 
(STIP)?

    The State Transportation Improvement Program 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 (FTA and FHWA) reviews and approves these 
documents for each state. Approval of the STIP gives authority to 
expend Highway Trust Funds for those projects.


Sec. 170.412  What is the Indian Reservation Roads Transportation 
Improvement Program (IRR TIP)?

    The IRR TIP is a multi-year, financially constrained list by year, 
State, and tribe of IRR-funded projects selected by tribal governments 
from tribal TIPs, or other tribal actions, that are programmed for 
construction in the next 3 to 5 years. Information from the tribal TIP 
concerning non-IRR funded projects may be attached to the IRR TIP for 
inclusion into the STIP.


Sec. 170.413  What is the Tribal Transportation Improvement Program 
(TTIP)?

    The TTIP is a multi-year, financially constrained list of proposed 
transportation projects. It may be developed from the tribal priority 
list. The TTIP should be consistent with the tribal long-range 
transportation plan and must contain all Indian Reservation Roads (IRR) 
funded projects. It is reviewed and updated as necessary. The only 
entity that can change the TTIP is the Indian tribal government. The 
TTIP is forwarded to the BIA by resolution or

[[Page 51383]]

by tribally authorized government action for inclusion into the IRR 
TIP.


Sec. 170.414  Must the eligible projects on the tribal TIP be included 
in the IRR TIP?

    Yes, eligible projects on the tribal TIP must be included in the 
IRR TIP.


Sec. 170.415  What happens to the tribal TIP after eligible projects 
are included in the IRR TIP?

    The Secretary and the Secretary of Transportation review and 
approve the IRR TIP. The IRR TIP, as approved by the Secretaries, is 
then included in the STIP without further action. Approval of the IRR 
TIP authorizes expenditure of IRR highway construction funds for those 
projects.


Sec. 170.416  What are the responsibilities of the BIA prior to the IRR 
TIP being included in the STIP?

    The BIA regional office must work cooperatively with tribal, state, 
rural, and metropolitan transportation planning organizations 
concerning the leveraging of funds from non-IRR sources and 
identification of other funding sources in order to expedite the 
planning, design and construction of projects on the IRR TIP.


Sec. 170.417  How are projects placed on the TTIP and IRR TIP?

    Each project is placed on the TTIP and IRR TIP as follows:
    (a) The TTIP may be developed from either the tribal priority list 
or the long-range transportation plan. The TTIP identifies the 
implementation year of each project scheduled to begin within the next 
3-5 years. It is the tribal government's decision to select the year in 
which projects are programmed. The TTIP may also contain information 
regarding other Federal, state, county, municipal, and tribal 
transportation projects initiated by or developed in cooperation with 
the Indian tribal government. The only entity that can change the TTIP 
is the tribal government;
    (b) The tribal government develops the tribal control schedule from 
the tribal priority list or TTIP. The tribal control schedule is an 
accounting and project management tool which contains detailed project 
and tasks information for all projects identified in the TTIP;
    (c) Project information from the tribal control schedule is then 
included in the BIA's region-wide control schedule without change, 
unless the tribes control schedule exceeds the amount available to the 
tribe;
    (d) Projects identified on the TTIP that are scheduled in the next 
3-5 years must be included by the BIA in the IRR TIP, unless the TTIP 
is not financially constrained; and
    (e) Tribes that do not generate sufficient annual funding under the 
IRR funding formula to complete a project may submit their tribal 
priority lists to the BIA. The BIA will develop the region-wide control 
schedule and IRR TIP after consulting with and taking into account the 
tribe's priorities. Alternatively, such tribes may either enter a 
consortium of tribes and delegate authority to the consortium to 
develop the TTIP and tribal control schedule or may enter into 
agreement with other tribes to permit completion of the project. In 
order to get a project on the TIP, tribes may seek flexible financing 
alternatives available as described in subpart C of this part.


Sec. 170.418  What is the tribal priority list?

    The tribal priority list is a list of transportation projects which 
the tribe or tribal organization wants funded. The projects may or may 
not be identified in order of priority. This list is not financially 
constrained. Unless the tribal government submits a TTIP, the tribal 
priority list is provided to the BIA by official tribal action.


Sec. 170.419  What is the IRR TIP annual update?

    The IRR TIP annual update is the process by which the IRR TIP is 
kept current. The BIA regional office annually updates the IRR TIP for 
each state in its service area to reflect changes in the TTIP.


Sec. 170.420  How is the IRR TIP updated?

    The updating process begins when BIA provides the projected IRR 
Program funding amounts to each tribe, or an analysis of the existing 
tribal priority list or TTIP. New transportation planning information 
or substantial changes to an IRR tribal project may require an IRR TIP 
update. BIA reviews the programming of proposed projects with the 
tribes. Agreed upon adjustments are made to the IRR TIP following the 
IRR TIP process defined in this part on an annual basis or as otherwise 
needed.


Sec. 170.421  Should the IRR TIP be coordinated within the STIP time 
frames?

    Yes, the time frame for the annual update of the IRR TIPS for each 
state in a BIA regional office's service area should be coordinated 
with the state transportation agencies. This will ensure that approved 
IRR TIP updates are included with the STIPs when they are printed and 
distributed.


Sec. 170.422  When may the Secretary amend the IRR TIP?

    The Secretary may amend the IRR TIP:
    (a) At the request of a tribe at any time, the Secretary amend the 
IRR TIP to add or delete projects or reflect significant changes in 
scope to a project in a process similar to an IRR TIP update; and
    (b) Before reducing the funding for, or rescheduling a project on 
the IRR TIP, by consulting with the affected tribe and obtaining its 
consent whenever practicable. The Secretary may not reduce funding for 
or reschedule a project which is the subject of a negotiated agreement 
except under the terms of the agreement.


Sec. 170.423  How is the IRR TIP amended?

    The IRR TIP is amended using the same process as updating the IRR 
TIP.


Sec. 170.424  Is public involvement required in the development of the 
IRR TIP?

    Yes, public involvement is required in the development of the IRR 
TIP.


Sec. 170.425  How does public involvement occur in the development of 
the IRR TIP?

    Public involvement may occur in many ways. For example:
    (a) Public involvement entails one or more public meetings. The 
public is provided the opportunity to comment, either verbally or in 
writing;
    (b) Public involvement activities may be conducted by the state 
transportation agency or MPO; and
    (c) Public notice requires publishing a notice in the local and 
tribal newspapers when the draft tribal or IRR TIP is complete. 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.


Sec. 170.426  What happens after the IRR TIP is approved?

    The IRR TIP is approved by the Secretary and the Secretary of 
Transportation and is returned to the BIA. Copies are provided to the 
BIA DOT, BIA regional offices, FHWA division office, and Indian tribal 
governments. The FHWA division office transmits the approved IRR TIP to 
the state transportation agency for inclusion in the STIP.
    Within 10 working days of receipt of the approved IRR TIP and IRR 
funds, the BIA enters the projects into the Federal finance system. 
Expenditure of funds for development of the projects may then begin 
even though the state transportation agency may not have yet added the 
approved IRR TIP to the STIP.

[[Page 51384]]

Sec. 170.427  What is a long-range transportation plan?

    An IRR long-range transportation plan is a document setting out a 
tribe's long-range transportation priorities and needs.


Sec. 170.428  What may a long-range transportation plan include?

    The comprehensive long-range transportation plan may include:
    (a) An evaluation of a full range of modal and connections between 
transportation modes such as highway, rail, air, and water to 
effectively and economically meet short- and long-term 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;
    (e) A review of the existing and proposed transportation system to 
identify the relationships between the transportation system and the 
environment;
    (f) Cultural preservation planning to identify those issues of 
importance to the tribe and develop a plan within transportation 
planning which is sensitive to tribal cultural preservation;
    (g) Scenic byways and tourism plans;
    (h) Measures that address energy conservation considerations;
    (i) A prioritized list of short-term transportation needs; and
    (j) An analysis of funding alternatives to implement plan 
recommendations.


Sec. 170.429  What is the purpose of long-range transportation 
planning?

    The purpose of long-range transportation planning is to fulfill 
tribal goals by developing strategies to meet identified transportation 
needs.
    These strategies should address future land use, economic 
development, traffic demand, public safety, and health and social 
needs.
    (a) The time horizon for long-range transportation planning should 
be 20 years to match state transportation planning horizons.
    (b) Tribes should develop long-range transportation plans to 
demonstrate their transportation needs.
    (c) A tribe may develop a transportation plan under the ISDEAA or, 
if a tribe chooses, BIA may develop it on the tribe's behalf.


Sec. 170.430  How does BIA or a tribe involve the public in developing 
the IRR long-range transportation plan?

    BIA or the tribe must solicit public involvement. Tribes may do so 
in accordance with their own tribal laws and policies. If there are no 
tribal policies, tribes must use the procedures in this section. Public 
involvement begins at the same time long-range transportation planning 
begins and covers the range of users, from private citizens to major 
public and private entities. Public involvement may be handled in 
either of the following two ways:
    (a) Public Meetings: BIA or the tribe must:
    (1) Advertise each public meeting in local public newspapers at 
least 15 days before the meeting date;
    (2) Provide at the meeting copies of the draft long-range 
transportation plan;
    (3) Information is provided on funding and the planning process; 
and
    (4) Provide the public the opportunity to comment, either orally or 
in writing.
    (b) Public Notice: BIA or the tribe must:
    (1) Publish a notice in the local and tribal newspapers when the 
draft long-range transportation plan is complete;
    (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. 170.431  How is the IRR long-range plan developed and approved?

    A. The IRR long-range plan is developed and approved in one of 
three ways:
    (1) By a tribe working through a self-determination contract or 
self-governance agreement or other funding sources;
    (2) By a qualified consultant who is a subcontractor for a tribe 
that has a self-determination contract or self-governance agreement; or
    (3) By 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, it is recommended that a midpoint review be conducted jointly by 
the tribe and BIA. The public reviews a draft IRR long-range 
transportation plan as part of the public involvement process 
consistent with Sec. 170.430 of this part. The plan is further refined 
to address any issues identified during the public review process.
    C. The IRR long-range transportation plan is approved by the 
tribe(s).


Sec. 170.432  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 IRR long-range 
transportation plan should be reviewed annually by the tribe, or BIA 
for direct service tribes, and updated every 5 years, unless conditions 
dictate otherwise.


Sec. 170.433  When does BIA update the IRR TIP?

    (a) The BIA regional office annually updates the IRR TIP for each 
State in its service area to reflect changes in the TTIP.
    (b) BIA regional offices should coordinate the annual update with 
each affected state transportation agency. This will ensure that 
approved IRR TIP updates are included with the STIPs.


Sec. 170.434  When may the Secretary amend the IRR TIP?

    (a) The Secretary may amend the IRR TIP:
    (1) At any time if requested by the tribe, in order to add or 
delete projects or reflect significant changes in scope; and
    (2) Before reducing the funding for, or rescheduling a project on 
the IRR TIP, by consulting with the affected tribe and obtaining its 
consent whenever practicable.
    (b) The Secretary may not reduce funding for or reschedule a 
project which is the subject of a negotiated agreement except under the 
terms of the agreement. The IRR TIP is amended using the same public 
involvement process as updating the IRR TIP.


Sec. 170.435  How does BIA or a tribe solicit public participation 
during the development of the IRR TIP?

    Public involvement is required in the development of the IRR TIP.
    (a) BIA or the tribe may publish a notice in the local and tribal 
newspapers when the draft tribal or IRR TIP is complete. The notice 
must indicate where a copy can be obtained, who to contact for answers 
to questions, where comments may be submitted, and the deadline for 
submitting comments;
    (b) BIA or the tribe may conduct one or more public meetings at 
which it solicits comments, either orally or in writing; or,
    (c) BIA, the tribe, the State, or the metropolitan planning office 
may conduct other involvement activities.

[[Page 51385]]

Sec. 170.436  What happens after the IRR TIP is approved?

    (a) After the Secretaries approve the IRR TIP they will return it 
to BIA.
    (b) BIA will provide copies to BIADOT, BIA regional offices, FHWA 
division office, and Indian tribal governments.
    (c) The FHWA division office transmits the approved IRR TIP to the 
State transportation agency for inclusion in the STIP.
    (d) Within 10 working days of receipt of the approved IRR TIP and 
IRR funds, BIA enters the projects into the Federal finance system. 
Expenditure of funds for development of the projects may then begin 
even though the State transportation agency may not have yet added the 
approved IRR TIP to the STIP.

Public Hearings


Sec. 170.437  What are the purposes and objectives of public hearings 
for the IRR TIP, long range transportation plan, and IRR projects?

    The purposes and objectives of these public hearings are to:
    (a) Inform the public and obtain public input;
    (b) Ensure that locations, designs or specifications are consistent 
with tribal objectives and with applicable Federal law; and
    (c) Promote coordination and comprehensive planning of IRR 
activities.


Sec. 170.438  When is a public hearing for IRR TIP, long-range 
transportation plan or project held?

    BIA or the tribe must hold a public hearing if a plan or project:
    (a) Is a new route;
    (b) Would significantly change the layout or function of connecting 
or related roads or streets;
    (c) Would cause a substantial adverse effect on adjacent real 
property;
    (d) Is controversial or expected to be controversial in nature; or
    (e) Is for obtaining input during the TIP and long-range 
transportation planning processes.


Sec. 170.439  How are public hearings for IRR planning and projects 
funded?

    Public hearings for IRR planning and projects are funded as 
follows:
    (a) Public hearings for IRR planning:
    (1) Public hearings for TIPS and long-range transportation plans 
conducted by tribes are funded using the 2 percent IRR transportation 
planning or IRR construction funds; and
    (2) Public hearings for the IRR TIP and long-range transportation 
plans conducted by BIA are funded using IRR construction funds.
    (b) Public hearings for IRR projects conducted by either tribes or 
BIA are funded using IRR construction funds.


Sec. 170.440  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 IRR TIP, long-range transportation plan or project. 
The determination based on the criteria in Sec. 170.434.


Sec. 170.441  How is the public informed when no public hearing is 
scheduled?

    When no public hearing for an IRR project is scheduled, either the 
tribe or BIA must do the following:
    (a) Give adequate notice to the public before project activities 
are scheduled to begin;
    (b) Include in the notice the project name and location, the type 
of improvement planned, the date the activity is scheduled to start, 
and the name and address where more information is available, and 
provisions for requesting a hearing; and
    (c) Send a copy of the notice to the affected tribe(s).


Sec. 170.442  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 it to the affected tribe(s).


Sec. 170.443  How is a public hearing conducted?

    (a) Who conducts the hearing. A tribal or Federal official is 
appointed to preside at 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(s) explains the 
purpose of the hearing and provides an agenda;
    (2) The presiding official(s) solicits public comments from the 
audience on the merits of IRR projects and activities; and
    (3) The presiding official(s) will inform the hearing audience of 
the appropriate procedures for a proposed IRR project or activity, 
including but not limited to:
    (i) Right(s)-of-way acquisition;
    (ii) Relocation of utilities and relocation services;
    (iii) Authorized payments allowed by the Uniform Relocation and 
Real Property Acquisition Policies Act, 42 U.S.C. 4601 et seq. as 
amended;
    (iv) Draft transportation plan; and
    (v) Explain the scope of the project and its impact on traffic 
during and after construction.
    (d) Availability of information. Appropriate maps, plats, project 
plans and/or 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. 170.444  How are the results of a public hearing obtained?

    Results of a public hearing are available as follows:
    (a) Within 20 working days of the completion of the public hearing, 
the presiding official(s) issues a hearing statement summarizing the 
results of the public hearing and the determination of further needed 
action.
    (b) The presiding official(s) posts the hearing statement at the 
hearing site. The public may request a copy. The hearing statement 
outlines appeal procedures.


Sec. 170.445  Can a decision be appealed?

    Yes, a decision from the public hearing may be appealed through the 
appropriate appeal processes as follows:
    (a) Federal decisions: For BIA decisions, 25 CFR part 2 applies. 
For FHWA decisions, 23 CFR part 1420 applies.

[[Page 51386]]

    (b) Tribal decisions: The appropriate tribal dispute resolution 
process applies.

IRR Inventory


Sec. 170.446  What is the IRR inventory?

    The IRR inventory is a comprehensive list of information for all 
transportation facilities eligible for IRR funding by tribe or 
reservation, by 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, 
ownership, and other information as required in subpart C.


Sec. 170.447  How is the IRR inventory used?

    BIA or tribes can use the IRR inventory data for a variety of 
purposes, such as assisting in the transportation planning process, 
justifying expenditures, identifying transportation needs, maintaining 
existing facilities, developing management systems, and project 
planning and design.


Sec. 170.448  How is the IRR inventory database amended?

    Either BIA or a tribe may initiate the process for updating the IRR 
inventory. The Secretary must update the IRR inventory to include the 
transportation facility as long as it is an eligible IRR facility.


Sec. 170.449  How are transportation facilities added to or deleted 
from the IRR inventory?

    A tribal government or its designated body can propose changes to 
the IRR inventory by submitting a tribal resolution or similar official 
authorization to the appropriate BIA regional office. That office 
approves the submission if it is accurate and the facility is eligible 
as an IRR facility.


Sec. 170.450  What facilities can be included in the IRR inventory?

    The minimum requirements for including proposed transportation 
facilities in the IRR inventory are:
    (a) A tribal resolution or other official tribal authorization must 
be obtained in support of the proposed transportation facility;
    (b) Proposed facilities must address documented transportation 
needs of tribes as demonstrated by tribal transportation planning 
efforts, such as identification in the long-range transportation plan;
    (c) The proposed facility must be eligible for IRR funding; and
    (d) The proposed facility, when constructed, must be open to the 
public.


Sec. 170.451  How accurate must the IRR road inventory database be?

    The information contained in the inventory database must be to the 
following accuracy:
    (a) The roadway width must be within 1 foot (.3048 meters) of 
actual width; and
    (b) The length of roadway must be within 100 feet (30.48 meters) of 
actual length.


Sec. 170.452  What are the standards for IRR atlas maps?

    IRR atlas maps must:
    (a) Be drawn to an appropriate scale;
    (b) Show adequate topography, all IRR roads, contours as 
appropriate, title block, and legend;
    (c) Show State, county, tribal, congressional, and private land 
boundaries as appropriate; and
    (d) Be capable of displaying a variety of coordinate systems to 
minimize the number of (C-size paper) maps for a given reservation.


Sec. 170.453  What is a strip map?

    For purposes of this subpart, a strip map is a graphical image that 
reflects a section of road or other transportation facility being added 
to or modified in the IRR inventory. It also defines its location with 
respect to the various state, county, tribal, and congressional 
boundaries. These maps further define overall dimensions of a section 
of road or facility and the accompanying inventory data.


Sec. 170.454  How are strip maps used?

    Strip maps are used for the following purposes:
    (a) Maintaining a visual inventory of each transportation facility 
in the IRR inventory;
    (b) Transportation planning;
    (c) Project planning; and
    (d) IRR management systems.


Sec. 170.455  What standards must IRR inventory strip maps meet?

    Strip maps must be consistent with the requirements of atlas maps 
except that a table is also displayed that provides specific inventory 
information about a section of an IRR route or other transportation 
facility on the strip map. This information is taken from the IRR 
inventory.


Sec. 170.456  What is functional classification?

    For purposes of this subpart, 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 classifications are used to 
delineate the difference between the various road and/or intermodal 
facilities standards eligible for funding under the IRR Program.


Sec. 170.457  What are the functional classifications of the IRR 
Program?

    The functional classifications of the IRR Program are given in the 
following list:
    (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: Major or 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 which 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-roads which are located within communities 
serving residential and other urban type settings.
    (d) Class 4: Section line and/or stub type roads which 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 
utilization purposes. This classification encompasses all those public 
roads not falling into either the Class 2 or 3 definitions above.
    (e) Class 5: This classification encompasses all non-road type 
paths, trails, walkways, or other designated types of routes for public 
use by foot traffic, bicycles, trail bikes, or other uses to provide 
for general access of non-motorized traffic.
    (f) Class 6: This classification encompasses other modes of 
transportation such as public parking facilities adjacent to IRR routes 
and scenic byways, rest areas, and other scenic pullouts, ferry boat 
terminals, and transit terminals.

[[Page 51387]]

    (g) Class 7: This classification encompasses air strips which are 
within the boundaries of the IRR system grid and are open to the 
public. These air strips are included for inventory and maintenance 
purposes only.


Sec. 170.458  How are functional classifications used in the IRR 
Program?

    Functional classifications are used to delineate the difference 
between the various road and/or intermodal facilities standards 
eligible for funding under the IRR Program.


Sec. 170.459  How is the surface type determined for an IRR road 
project?

    The surface type of a road is based on input from the tribe and 
engineering judgment, taking into account projected traffic volumes, 
terrain, location, functional classification, and use of the road.


Sec. 170.460  What is a proposed IRR transportation facility?

    A proposed IRR transportation facility is any transportation 
facility, including bridges, identified to serve public transportation 
needs that is eligible for construction or improvement under the IRR 
Program.

Environment and Archeology


Sec. 170.461  What are the archeological and environmental requirements 
for the IRR Program?

    (a) 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.
    (b) The archeological and environmental requirements with which BIA 
must comply on the IRR Program are contained in Appendix A to this 
subpart.


Sec. 170.462  Can IRR funds be used for required archeological and 
environmental compliance work?

    Yes, for approved IRR projects, IRR 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/or bridge rights-of-way;
    (b) Borrow pits and/or 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. 170.464  What design standards are used in the IRR Program?

    Appendix B to this subpart is a listing of design standards that 
BIA may use for the IRR program. Tribes may propose road and bridge 
design standards to be used in the IRR Program which 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. 170.465  May BIA use FHWA-approved State or tribal design 
standards?

    Yes, BIA may use FHWA-approved State or tribal design standards?


Sec. 170.466  How are these standards used in the design of IRR 
projects?

    The standards in this section must be applied to each construction 
project consistent with a minimum 20 year design life. The design of 
IRR projects must take into consideration:
    (a) The existing and planned future usage of the IRR 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. 170.467  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. FHWA 
reviews and may approve all design exceptions for IRR projects unless 
otherwise delegated under an IRR stewardship plan or agreement. To 
request an exception from the standards, the engineer of record must 
submit written documentation with appropriate supporting data, 
sketches, details, and justification based on engineering analysis.
    (a) FHWA may, in accordance with applicable law, grant exceptions 
for:
    (1) Experimental features on projects; and
    (2) Projects where conditions warrant that exceptions be made.
    (b) FHWA can approve a project design that does not conform to the 
minimum criteria only after due consideration is given to all project 
conditions, such as:
    (1) Maximum service and safety benefits for the dollar invested;
    (2) Compatibility with adjacent features; and
    (3) The probable time before reconstruction of the project due to 
increased transportation demands or changed conditions.


Sec. 170.468  If BIA or FHWA denies a design exception, can that 
decision be appealed?

    Yes, if BIA denies a design exception request made by a tribe, the 
decision may be appealed to FHWA. If FHWA denies a design exception, 
the decision may be appealed to the next higher level of review within 
the Department of Transportation.


Sec. 170.469  How long does BIA or FHWA have to approve or decline a 
design exception request by a tribe?

    BIA or FHWA has 30 days from receipt of the request to approve or 
decline the exception.

Construction and Construction Monitoring and Rights-of-Way


Sec. 170.472  What road and bridge construction standards are used in 
the IRR Program?

    Appendix B to this subpart lists design standards that may be used 
in the IRR Program. Tribes may propose road and bridge construction 
standards to be used in the IRR Program which are consistent with or 
exceed applicable federal standards as may be negotiated between BIA 
and the tribe and included in a self-determination contract or self-
governance agreement.


Sec. 170.473  What standards must be used for intermodal projects?

    For designing and building eligible intermodal projects funded by 
the IRR Program, tribes must use either:
    (a) Nationally recognized standards for comparable projects; or
    (b) Tribally adopted standards that meet or exceed nationally 
recognized standards for comparable projects.


Sec. 170.474  May BIA use FHWA-approved State or tribal road and bridge 
construction standards?

    Yes, BIA may use FHWA-approved, State or tribal road and bridge 
construction standards.


Sec. 170.475  How will BIA monitor the IRR project during construction?

    When a tribe or tribal organization carries out the IRR project 
under Pub. L. 93-638, 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 the Secretary discovers a 
problem during an on-site monitoring visit, the Secretary must promptly 
notify the tribe and, upon request by the tribe, provide technical 
assistance.

[[Page 51388]]

Sec. 170.476  Is tribal consultation required in order to change a 
construction project?

    Yes, substantial changes to the construction project must be 
processed in consultation with the affected tribe, where feasible.


Sec. 170.477  Who conducts inspections of IRR construction projects 
under a self-determination contract or self-governance agreement?

    The Secretary or tribal government, as provided for under the 
contract or agreement, is responsible for the day-to-day project 
inspections except for monitoring by the Secretary as provided in 
Sec. 170.475.


Sec. 170.478  What is quality control and who performs it?

    Quality control is all activity conducted to ensure that all 
construction requirements are fulfilled. The tribe, other contractors, 
and/or BIA may perform quality control.


Sec. 170.479  What IRR 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.

----------------------------------------------------------------------------------------------------------------
               Record keeper                     Records that must be kept                   Access
----------------------------------------------------------------------------------------------------------------
(a) Tribe or tribal organization...........  All records required by the        BIA is allowed access to tribal
                                              ISDEAA and 25 CFR 900.130-         IRR construction records as
                                              900.131 or 25 CFR 1000.243 and     required under 25 CFR 900.130,
                                              1000.249, as appropriate.          900.131 or 25 CFR 1000.243 and
                                                                                 1000.249, as appropriate.
(b) BIA....................................  Completed daily reports of         Upon reasonable advance request
                                              construction activities            by a Tribe, BIA must provide
                                              appropriate to the type of         reasonable access to records.
                                              construction it is performing.
----------------------------------------------------------------------------------------------------------------

Sec. 170.480  Can a tribe review and approve Plans, Specification and 
Estimate (PS&E) packages for IRR projects?

    Yes, a tribe can review and approve PS&E packages for IRR projects 
if the tribe meets the requirements of a state as defined in 23 U.S.C. 
302(a) and enters into a tribal IRR Program stewardship agreement with 
the Secretary of Transportation or designee.


Sec. 170.481  Who must approve all PS&E packages?

    All PS&E packages must be signed and/or sealed by the appropriate 
licensed professional engineer and by the appropriate official as 
follows:
    (a) Absent an approved IRR Program stewardship agreement, FHWA 
approves all PS&E packages submitted by BIA;
    (b) When an approved BIA regional IRR Program stewardship agreement 
exists, PS&E packages are approved by an official in the BIA regional 
office;
    (c) When a tribe has assumed the responsibility to approve PS&E 
packages for tribal, state, and locally owned IRR facilities through a 
tribal IRR Program stewardship agreement, the tribe approves PS&E 
packages with the consent of the facility owner after a health and 
safety review by the Secretary;
    (d) When a tribe has not assumed the responsibility to approve PS&E 
packages under paragraph (c) of this section, BIA or FHWA approves PS&E 
packages under paragraph (a) or (b) of this section, as applicable.


Sec. 170.482  How can the plans, specifications, and estimates of an 
IRR project be changed during construction?

    Only the licensed engineer may change an IRR project's plans, 
specifications, and estimates (PS&E) during construction.
    (a) 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.
    (b) In making any substantial change, the approving agency must 
consult with the affected tribe and the entity having maintenance 
responsibility over the facility.
    (c) No change may be made that exceeds the limits of available 
funding without the consent of the funding agency.


Sec. 170.483  What is the final inspection procedure for an IRR 
construction project?

    At the conclusion of a construction project, the agency or 
organization responsible for the project must make a final inspection. 
The purpose of the inspection is to determine that the project has been 
completed in reasonable conformity with the PS&E.
    (a) Appropriate officials from the tribe, BIA, and FHWA are 
encouraged to participate in the inspection.
    (b) BIA, FHWA, contractors, and maintenance personnel should also 
participate in the inspection.


Sec. 170.484  How is construction project closeout conducted?

    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 
and is conducted after the final inspection. The following table 
contains the requirements for preparing the report.

------------------------------------------------------------------------
    If the project was                                And the closeout
    completed by . . .           Then . . .          report must . . .
------------------------------------------------------------------------
(a) BIA..................  The regional engineer   (1) Summarize the
                            or designee is          construction project
                            responsible for         records to ensure
                            closing out the         compliance
                            project and preparing   requirements have
                            the report.             been met; and
                                                   (2) Review the bid
                                                    item quantities and
                                                    expenditures to
                                                    ensure reasonable
                                                    conformance with the
                                                    PS&E and
                                                    modifications.
(b) A tribe..............  Agreements negotiated   (1) Meet the
                            under Pub. L. 93-638    requirements of Pub.
                            specify who is          L. 93-638; and
                            responsible for        (2) Comply with 25
                            closeout and            CFR 900.130(d) and
                            preparing the report.   131(b)(10) and 25
                                                    CFR 1000.249, as
                                                    applicable.
------------------------------------------------------------------------


[[Page 51389]]

Sec. 170.485  Who has final acceptance of the IRR project audit?

    The Secretary has final acceptance and approval of the project 
including the IRR project audit.


Sec. 170.486  When does a project closeout occur?

    A project closeout occurs after the final project inspection is 
concluded and the IRR project is accepted by the facility owner and the 
Secretary.


Sec. 170.487  Who must conduct the project closeout and develop the 
report?

    (a) The self-determination contract or self-governance agreement 
must specify who is responsible for project closeout and development of 
a final report.
    (b) The Secretary is responsible for closing out the project and 
preparing the report when the project is conducted by the Secretary.


Sec. 170.488  What information must be made available for the project 
closeout?

    (a) When the Secretary conducts the project, all project 
information must be made accessible for the IRR construction project 
closeout. Such information may include, but is not limited to: Daily 
diaries, weekly progress reports, subcontracts, subcontract 
expenditures, salaries, equipment expenditures, etc.
    (b) When a tribe conducts the project under a self-determination 
contract or self-governance agreement, all project information must be 
made accessible for the IRR construction project closeout. Such 
information may include but is not limited to: Daily diaries, weekly 
progress reports, subcontracts, subcontract expenditures, salaries, 
equipment expenditures, etc.


Sec. 170.489  Who is provided a copy of the IRR construction project 
closeout report?

    (a) When the Secretary conducts the project, copies of the IRR 
construction project closeout reports are provided to the affected 
tribes and the Secretary of Transportation.
    (b) When a tribe conducts the project under a self-determination 
contract or self-governance agreement, the contract or agreement must 
specify who will be provided a copy of the closeout report.


Sec. 170.490  Will projects negotiated under Public Law 93-638 specify 
who will be provided a copy of the closeout report?

    Yes, projects negotiated under Public Law 93-638 must specify who 
will be provided a copy of the closeout report.


Sec. 170.491  Who prepares the IRR construction project closeout 
report?

    The IRR construction project closeout report is prepared by 
whomever administers the project or FHWA or BIA within 120 calendar 
days of project completion.


Sec. 170.500  What provisions apply to acquiring IRR Program rights-of-
way over trust or restricted lands?

    Rights-of-way across trust or restricted lands are covered by 25 
CFR part 169 except where Federal statutory authority exists for tribes 
to grant rights-of-way across their reservations without approval by 
the Secretary.


Sec. 170.501  What must a right-of-way easement document contain at a 
minimum?

    (a) For rights-of-way across Indian trust and restricted lands, 
those documents required by 25 CFR part 169 must be submitted; and
    (b) For lands other than trust or restricted, the following 
information must be submitted:
    (1) Identification of the grantor and grantee;
    (2) A legal description of the property acquired for the right-of-
way;
    (3) A right-of-way plat/map of definite location;
    (4) A statement of the term of the right-of-way, whether for a 
specific term of years, whether it includes a right of renewal, or 
whether the grant is in perpetuity;
    (5) Terms and conditions on the grant of the right-of-way, 
including but not limited to, other permissible uses of the right-of-
way, or specific restrictions on the rights-of-way easements;
    (6) Identification of whether the rights-of-way includes the right 
to construct, and/or re-construct the facility; and
    (7) A statement on whether the right-of-way may be transferred or 
assigned and the terms and conditions under which a transfer or 
assignment may occur.
    (c) If a rights-of-way document covers maintenance it may include 
an identification of maintenance responsibilities assumed by the 
grantee or retained by the grantor and whether such rights convey with 
any transfer of the rights-of-way.


Sec. 170.502  How are rights-of-way granted on Indian trust or 
restricted fee lands?

    Grants of right-of-way must be made under the provisions of 25 CFR 
part 169.

Program Reviews and Management Systems


Sec. 170.510  What are BIA IRR Program reviews?

    On an annual basis, BIADOT and FHWA initiate and conduct informal 
program reviews to examine program procedures and identify 
improvements. These reviews evaluate the procedures being used by BIA 
and FHWA to administer, implement, and monitor the IRR Program. These 
program reviews may be held in conjunction with either a national BIA 
transportation meeting or an IRR Program Coordinating Committee 
meeting. BIA must provide notice to tribes of these informal program 
reviews. Tribes may send representatives to these meetings at their own 
expense.


Sec. 170.511  What is an IRR process review of a BIA regional office?

    (a) The IRR process review of a BIA regional office is a review 
involving FHWA, BIA, and affected Tribe(s) in the region, of a BIA 
regional office's processes and controls in the following areas:
    (1) Transportation;
    (2) Planning;
    (3) Design;
    (4) Contract administration;
    (5) Construction;
    (6) Financial management; and
    (7) Systems maintenance and existing stewardship agreements.
    (b) The review may result in recommendations to improve 
transportation planning, design, contract administration, construction, 
financial management, and systems management activities performed by a 
BIA regional office.


Sec. 170.512  What happens with the information gathered from the IRR 
process review?

    After the IRR process review, the review team must:
    (a) Conduct an exit interview during which it makes a brief oral 
report of findings and recommendations to BIA regional director and IRR 
regional staff.
    (b) Prepare a written report of its findings and recommendations 
which it combines the gathered information into a short written report. 
The final report is provided to the reviewed office, BIA, all 
participants, affected tribal governments and/or organizations.


Sec. 170.513  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 provides either annual or 
biannual corrective action implementation reports to BIADOT and FHWA 
and implementation of the plan. The reviewed BIA regional office 
provides

[[Page 51390]]

either annual or biannual corrective action implementation reports to 
BIA DOT and FHWA.


Sec. 170.514  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 management 
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/or
    (3) Intermodal transportation facilities and systems.
    (c) All management systems for the IRR Program must be consistent 
with applicable Federal regulations to be developed by the Secretaries 
in consultation with tribes.
    (d) A tribe may enter into an ISDEAA contract or agreement to 
develop, implement, and maintain alternative tribal management systems, 
provided that such systems are consistent with Federal management 
systems.


Sec. 170.515  How are IRR Program management systems funded?

    BIA funds IRR Program management systems to develop the nationwide 
IRR Program management systems. If a tribe elects not to use the 
nationwide system, it may develop a tribal management system using the 
2 percent IRR tribal transportation planning or IRR construction funds.


Sec. 170.516  How will the IRR management systems be implemented?

    BIA Division of Transportation (BIA DOT) implements and maintains 
nationwide IRR management systems using IRR Program management funds. 
For direct service tribes that chose not to contract, BIA regional 
offices will provide the database information for these nationwide 
systems using IRR construction funds. A tribe may collect and must 
provide this information to the BIA regional office using IRR 
construction funds or 2 percent IRR tribal transportation planning 
funds under a self-determination contract or self-governance annual 
funding agreement.

Appendix A to Subpart D

Archeological and Environmental Requirements for the IRR Program

    All BIA work for the IRR Program must comply with the following 
archeological and environmental requirements:
    1. 16 U.S.C. 1531 Endangered Species Act.
    2. 16 U.S.C. 460L 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. 7 CFR 355 Endangered Species Act regulations.
    12. 7 CFR 658 Farmland Protection Policy Act regulations.
    13. 23 CFR 770 Air Quality Conformity and Priority Procedures 
for use in Federal-aid Highway and Federally-Funded Transit 
Programs.
    14. 23 CFR 771 Environmental Impact and Related Procedures.
    15. 23 CFR 772 Procedures for Abatement of Highway Traffic 
Noises and Construction Noises.
    16. 23 CFR 777 Mitigation of Environmental Impacts To Privately 
Owned Wetlands.
    17. 36 CFR 800 Historic Preservation.
    18. 40 CFR 260-271 Resource Conservation and Recovery Act.
    19. 40 CFR 300 Comprehensive Environmental Response, 
Compensation, and Liability Act.
    20. Applicable tribal/State laws.
    21. Other applicable Federal laws.

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 the ISDEAA, these provisions do not apply.
    1. AASHTO Policy on Geometric Design of Highways and Streets.
    2. FHWA Federal Lands Highway, Project Development and Design 
Manual.
    3. Standard Specifications for Construction of Roads and Bridges 
on Federal Highway Projects, latest edition.
    4. 23 CFR 645 Utilities.
    5. 23 CFR 646 Railroads.
    6. MUTCD Manual of Uniform Traffic Safety Devices, latest 
edition.
    7. AASHTO A Guide for Transportation Landscape and Environmental 
Design.
    8. AASHTO Roadside Design Guide, latest edition.
    9. AASHTO Guide for Selecting, Locating and Designing Traffic 
Barriers, latest edition.
    10. AASHTO Standard Specifications for Highway Bridges, latest 
edition.
    11. FHWA Flexibility in Highway Design.
    12. FHWA Roadside Improvements for Local Road and Streets.
    14. FHWA Improving Guardrail Installations and Local Roads and 
Streets.
    15. 23 U.S.C. 106 PS&E.
    16. 23 U.S.C. 109 Standards.
    17. 23 CFR 625 Design Standards for Highways.
    18. 23 CFR 630 Preconstruction Procedures.
    19. 23 CFR 633 Required Contract Provisions.
    20. 23 CFR 635 Construction and Maintenance.
    21. DOT Metric Conversion Plan, October 31, 1991.

Subpart E--Service Delivery for Indian Reservation Roads


Sec. 170.600  What IRR Program functions may be assumed by a tribe in a 
self-determination contract or self-governance agreement?

    All IRR functions and activities that are otherwise contractible 
may be included in a self-determination contract or self-governance 
agreement. (23 U.S.C. 202(d)(3)(B)).


Sec. 170.601  What IRR project and program functions are not otherwise 
contractible?

    The following IRR functions or activities are non-contractible:
    (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 (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.

[[Page 51391]]

    (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;
    (5) Filing Affidavit of Completion Forms; and
    (6) Performing custodial functions related to storing right-of-way 
documents.
    (f) Conducting project development and design under 25 U.S.C. 
900.131:
    (1) Participating in the plan-in-hand reviews as facility owner;
    (2) Reviewing and/or approving plans, specifications, and cost 
estimates (PS&E's) for health and safety assurance as facility owner;
    (3) Reviewing PS&E's to assure compliance with all other 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) 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 25 CFR part 900 and part 1000; and
    (2) Other Title 23 United States Code non-project-related 
management activities.
    (i) BIA Division of Transportation 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 stewardship agreements in 
conjunction
    with FHWA;
    (8) Developing annual IRR obligation and IRR Program 
accomplishments reports;
    (9) Developing reports on IRR 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, Tribal 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 such as the Intertribal Transportation Association 
regional and national meetings;
    (16) Coordinating with and monitor Tribal 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 transportation organizations, such 
as the Western Association of State Highway and Transportation 
Officials, American Association of State Highway and Transportation 
Officials, National Association of County Engineers, and Transportation 
Research Board;
    (21) Participating in and supporting FHWA Coordinated Technology 
Improvement 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 approve 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; and
    (31) Performing any other non-contractible IRR Program activity 
included in this part.
    (j) BIA DOT 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 and 
Atlas mapping funds to BIA regions;
    (11) Reprogramming unused IRR transportation planning and Atlas 
mapping funds at the end of the fiscal year;
    (12) Monitoring the nationwide obligation of IRR transportation 
planning and Atlas mapping 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) BIA DOT 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 criteria for pavement and congestion 
management systems.

[[Page 51392]]

    (l) BIA DOT 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 and
    (5) Developing criteria for bridge management systems.
    (m) BIA DOT 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 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 stewardship agreements;
    (12) Developing quarterly/annual IRR 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 
such as Intertribal Transportation Association regional and national 
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 (tribal members and BIA region/agency 
personnel);
    (19) Participating in national transportation organizations 
meetings and workshops;
    (20) Reviewing Coordinated Technology Improvement 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 and approving 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 the application for ERFO funds, 
administration, and oversight of such funds; and
    (27) Participating in IRR Program, process, and product reviews.
    (o) BIA DOT 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 DOT 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 DOT 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 DOT regional offices other responsibilities for performing 
other non-contractible required IRR Program activities contained in 
this part.


Sec. 170.602  How are the IRR non-contractible program and project 
functions funded?

    (a) All non-contractible program functions are funded by IRR 
Program management and oversight funds; and
    (b) All non-contractible project functions are funded by the IRR 
project construction funds.


Sec. 170.603  May tribes include the cost for contractible supportive 
administrative functions in their budgets?

    Yes, Tribes may use IRR project funds contained in their contracts 
or annual funding agreements for contractible supportive administrative 
functions.


Sec. 170.604  How does BIA determine the amount of funds needed for 
non-contractible non-project related functions?

    Each fiscal year the Secretary will develop a national and regional 
BIA IRR Program budgets. Within the first quarter of each fiscal year 
the Secretary will send a copy of the national IRR budget and BIA 
regional IRR budget to all tribes.


Sec. 170.605  Are the unused IRR Program management funds reserved by 
the Secretary considered residual funds?

    No, the unused IRR Program management funds reserved by the 
Secretary are not considered residual funds.


170.606  What happens to the unused portion of IRR Program management 
funds reserved by the Secretary?

    Any unused IRR Program management funds are distributed to BIA 
regions using the IRR Relative Need Formula and are used for additional 
construction activities.


Sec. 170.608  May IRR Programs be contracted under the ISDEAA?

    Yes, IRR Programs may be contracted under the regulations set out 
in 25 CFR part 900. In the event of an actual conflict between these 
IRR regulations and part 900, subpart J of the regulations, these IRR 
regulations control.


Sec. 170.609  What are consortium contracts/agreements?

    Under title I and title IV of the ISDEAA, multiple tribes and/or 
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, refer to Title IV, 25 U.S.C. 
450b(l) and 458bb(b)(2).


Sec. 170.610  What must BIA include in the notice of availability of 
funds?

    The notice of availability of funds that BIA publishes in the 
Federal Register must include the following:
    (a) The total amount of IRR Program funds allocated to the region 
for IRR transportation planning, design, and construction projects;
    (b) A breakdown of IRR Program funds by tribe based on the 
distribution formula in subpart C;

[[Page 51393]]

    (c) Copies of the FHWA-approved IRR TIPs for each state in the BIA 
region;
    (d) Information on IRR Program funding by tribe for prior years. 
This information will identify over-funded or advance-funded tribes;
    (e) An offer of technical assistance in the preparation of contract 
proposal(s);
    (f) A request of a 30-day response from the tribe;
    (g) A proposed project listing used to develop the region's control 
schedule; and
    (h) The various options available to the tribe for IRR construction 
projects, i.e., direct service, self-determination contract, and self-
governance agreement.


Sec. 170.611  Can the Secretary transfer funds to tribal governments 
before issuing a notice of funding availability?

    Yes, the Secretary can transfer funds to tribal governments with 
negotiated self-determination contracts and self-governance agreements 
before issuing a notice of funding availability. The Secretary's 
ability to transfer funding is independent of and cannot be delayed by 
the requirement to provide tribes with a written notice of availability 
of funds.


Sec. 170.612  Can a tribe enter into a self-determination contract or 
self-governance agreement that exceeds one year?

    Yes, the Secretary can enter into a multi-year IRR self-
determination contract and self-governance agreement with a tribe under 
sections 105(c)(1)(A) and (2) of the ISDEAA. The amount of such 
contracts or agreements is subject to the availability of 
appropriations.


Sec. 170.613  May a tribe receive advance payments of IRR funds for 
non-construction activities?

    Yes, BIA must advance payments to a tribe for non-construction 
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. 170.614  May the Secretary advance payments of IRR funds to a 
tribe under a self-determination contract for construction activities?

    Yes, the Secretary and the tribe must negotiate a schedule of 
advance payments as part of the term of a self-determination contract 
in accordance with 25 CFR 900.132.


Sec. 170.615  What is a design/construct IRR self-determination 
contract?

    It is a self-determination contract which includes both the design 
and construction of one or more IRR projects.


Sec. 170.616  May the Secretary advance payments of IRR funds to a 
tribe under a self-determination design/construct contract for 
construction activities?

    Yes, when making at least quarterly advance payments for 
construction and construction engineering, the Secretary includes IRR 
Program funds based on progress, need, and the payment schedule 
negotiated under 25 CFR 900.132.


Sec. 170.617  May the Secretary advance payments of IRR funds to a 
tribe or consortia under a self-governance agreement?

    Yes, advance payments must be made to the tribes/consortia in the 
form of annual or semiannual installments as indicated in the 
agreement.


Sec. 170.618  How are advance payments made when additional IRR funds 
are made available after execution of the self-governance agreement?

    When additional IRR funds are available, following the procedures 
set forth in 25 CFR 1000.104, tribes can request to use the additional 
funds for approved IRR activities or projects contained in a subsequent 
year of FHWA-approved IRR TIP, and immediately have those funds added 
to the agreement.


Sec. 170.619  May a self-determination or self-governance tribe include 
a contingency in its proposal budget?

    Yes, a tribe with a self-determination contract may include a 
contingency amount in its proposal budget in accordance with 25 CFR 
900.127(e)(8). 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 allocation in the agreement.


Sec. 170.620  Can Indian tribes and tribal organizations performing 
under self-determination contracts of self-governance agreements keep 
savings that result from their administration of IRR projects or an 
entire tribal IRR Program?

    Pursuant to 25 U.S.C. 450e-2, where the actual costs of the 
contracts or agreements for construction projects are less than the 
estimated costs, use of the resulting excess funds shall be determined 
by the Secretary after consultation with the tribes.


Sec. 170.621  How do the 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) in a cooperative agreement.


Sec. 170.622  Do tribal preference and Indian preference apply to IRR 
funding?

    This section applies to any contract entered into under Title I of 
the ISDEAA.
    (a) If the contract serves a single tribe, section 7(c) of the 
ISDEAA applies to allow the tribal employment or contract preference 
laws adopted by the tribe to govern. This includes tribal adoption of 
local preference laws.
    (b) If the contract does not serve a single tribe, section 7(b) of 
the ISDEAA applies.
    (c) Where a self-governance agreement exists under Title IV of the 
ISDEAA, 25 CFR 1000.406 governs Indian preference issues.


Sec. 170.623  What protections does the government have if a tribe 
fails to perform?

    If a tribe substantially fails to perform 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 part 
900, subpart L (appeals); and
    (b) For self-governance agreements, the Secretary must use the 
monitoring and enforcement procedures in 25 CFR 1000, subpart K.


Sec. 170.624  What activities may the Secretary review and monitor?

    The Secretary reviews and monitors the performance of construction 
activities under 25 CFR 900.131.


Sec. 170.625  If a tribe incurs unforeseen construction costs, can it 
get additional funds?

    Yes, to the extent feasible, the Secretary must pay for all costs 
(i.e., cost overruns) incurred resulting from unforeseen circumstances 
of the construction process. See 25 CFR 900.130(e). If the Secretary is 
unable to fund the unforeseen costs, the tribe can suspend or terminate 
work on the project and may return the project to the Secretary.


Sec. 170.626  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 IRR programs.


Sec. 170.627  What regulations apply to BIA force account project 
activities?

    The applicable FAR and Federal law apply to BIA force account 
project activities.

[[Page 51394]]

Sec. 170.628  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   Applies to tribes under    Applies to activities
 Legislation, regulation or other      self-determination          self-governance          performed by the
            requirement                     contracts                agreements                 Secretary
----------------------------------------------------------------------------------------------------------------
(a) Buy Indian Act................  No                        No                        Yes
(b) Buy American Act..............  No                        No                        Yes
(c) Federal Acquisition Regulation  No \1\                    No                        Yes
 (FAR).
(d) Federal Tort Claims Act.......  Yes                       Yes                       Yes
(e) Davis-Bacon Act...............  Yes \2\                   Yes \2\                   Yes
----------------------------------------------------------------------------------------------------------------
\1\ Unless agreed to by the tribe or tribal organization under the ISDEAA, 25 U.S.C. 450j(a), and 25 CFR part
  900.115(b).
\2\ Does not apply when tribe performs work with its own employees.

Sec. 170.630  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. 170.631  How does a tribe request a waiver of a Department of 
Transportation regulation?

    Tribes must follow the procedures in the ISDEAA, title I and 25 CFR 
900.140 through 900.148 for self-determination contracts and ISDEAA, 
title IV, 25 CFR 1000.220 through 1000.232 for tribal self-governance 
agreements with a copy of the request sent to the Secretary of 
Transportation. When a waiver request is outside the Secretary's 
authority, the Secretary should forward the request to the Secretary of 
Transportation.


Sec. 170.632  Is technical assistance available for self-determination 
contracts and self-governance agreements under the ISDEAA?

    Yes, for tribes or tribal organizations with questions about 
contracting the IRR Program or IRR project(s), technical assistance is 
available from BIA. For tribes or tribal organizations 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. 170.633  What IRR programs, functions, services, and activities 
are subject to the construction regulations set forth in subpart K of 
25 CFR part 1000?

    All IRR design and construction projects and activities, whether 
included separately or under a program in the agreement, are subject to 
the construction regulations set forth in subpart K of 25 CFR part 
1000.


Sec. 170.634  How are IRR program projects and activities included in 
the self-governance agreement?

    IRR Program projects and activities are included in the self-
governance agreement as specific line items for each project or 
activity with sufficient detail to adequately describe the work as 
included in FHWA-approved IRR TIP and Control Schedule. Also, each 
agreement must include all other information required under 25 CFR 
1000, subpart K.


Sec. 170.635  Are contract support funds provided in addition to the 2 
percent (2%) IRR transportation planning funds?

    Contract support costs are an eligible item out of the tribes' IRR 
Program funds allocation and need to be included in a tribe's budget.


Sec. 170.636  May contract support costs for IRR construction projects 
be paid out of Department of the Interior or BIA appropriations?

    No, appropriations for the Department of the Interior do not 
include contract support costs for IRR construction projects as 
allowable expenditures.

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  What is an IRR Program stewardship agreement?

    It is an agreement between FHWA and BIA Division of Transportation 
for assuming FHWA's responsibilities for planning, design, and 
construction within the IRR Program.


Sec. 170.702  What is a BIA regional IRR Program stewardship agreement?

    It is an agreement between FHWA, BIA Division of Transportation and 
a BIA regional office for assuming FHWA's responsibilities of the 
planning, design, and construction within the IRR Program.


Sec. 170.703  Can a self-determination contract or self-governance 
agreement serve as an IRR program stewardship agreement?

    No, a tribe must use a tribal IRR Program stewardship agreement. It 
is a separate agreement which details the tribe's assuming a portion of 
FHWA's and/or BIA's responsibilities for planning, design, and 
construction within the IRR Program.


Sec. 170.704  What must be included in a BIA regional or tribal IRR 
Program stewardship agreement?

    At a minimum, these agreements must include:
    (a) BIA regional roads or tribal transportation department 
organization chart;
    (b) An IRR project development and construction flow chart;
    (c) Description of the transportation planning, design, 
procurement, project administration, and construction processes to be 
followed;
    (d) IRR design and construction standards to be used in accordance 
with this part;
    (e) List of roles and responsibilities to be assumed;
    (f) Provisions and process for obtaining the Secretary's health and 
safety reviews of the PS&E and

[[Page 51395]]

    (g) Provisions and processes for obtaining the facility owner's 
review of the PS&E.


Sec. 170.705  What is the process for obtaining the facility owner's 
review of the PS&E?

    The process is as follows:
    (a) BIA region or tribe prepares and submits an IRR Program 
stewardship agreement to BIA Division of Transportation. BIA Division 
of Transportation forwards a copy to FHWA;
    (b) BIA and FHWA visit the tribe or BIA region and evaluate the 
capabilities to assume the proposed IRR Program responsibilities;
    (c) FHWA, in writing, advises the tribe or BIA region of any 
applicable changes to the proposed stewardship agreement; and
    (d) After all changes are made, the revised agreement is approved 
by FHWA or its designee.


Sec. 170.706  Can a direct service tribe and BIA region sign a 
Memorandum of Understanding (MOU)?

    Yes, an IRR 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. 170.707  Are there licensing requirements to ensure standards are 
met under the IRR Program?

    Yes, all engineering work must be performed under the direction of 
a professionally licensed engineer.


Sec. 170.708  Must an IRR PS&E be approved before proceeding to 
construction?

    Yes, an IRR PS&E must be approved before proceeding to 
construction.

Subpart G--BIA Road Maintenance


Sec. 170.800  What Is IRR Transportation Facility Maintenance?

    Maintenance is the performance of activities to keep an IRR 
transportation facility at its as constructed condition and to insure 
the health, safety, and economical use of the traveling public. 
Maintenance means the preservation of IRR transportation facilities 
including surfaces, shoulders, roadsides, structures, and such traffic 
control devices as are necessary for safe and efficient utilization of 
the facility.


Sec. 170.801  Who owns IRR Transportation Facilities?

    IRR transportation facilities are owned by public authorities such 
as tribes, States, counties, local governments and the Federal 
Government.


Sec. 170.802  How is BIA Road Maintenance Program related to the IRR 
Program?

    The following chart illustrates how the BIA Road Maintenance 
Program is related to other Title 23 United States Code programs and 
other BIA appropriated programs.
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BILLING CODE 4310-L4-C


Sec. 170.803  How is road maintenance funded?

    BIA road maintenance program is funded through the Department of 
the Interior annual appropriations. All other programs are funded out 
of the Highway Trust Fund as shown in this subpart.
    (a) The States, counties, and local governments fund the 
maintenance of IRR transportation facilities that they own or have 
agreed to maintain.
    (b) 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.
    (c) Tribal governments, at their discretion, may also provide for 
the

[[Page 51396]]

maintenance of IRR transportation facilities.


Sec. 170.804  What is the BIA Road Maintenance Program?

    The BIA Road Maintenance Program is the name of the program that 
covers the distribution and use of the funds provided by Congress in 
the annual Department of Interior appropriations acts for maintaining 
transportation facilities.


Sec. 170.805  What facilities are eligible for maintenance and 
operation under the BIA Road Maintenance Program?

    (a) The following public transportation facilities are eligible for 
maintenance under the BIA Road Maintenance Program:
    (1) BIA facilities listed in paragraph (b) of this section;
    (2) Non-BIA 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, bridges, 
trails, and bus stations; and
    (4) Other transportation facilities as approved by the Secretary.
    (b) The following BIA facilities are eligible for maintenance under 
paragraph (a)(1) of this section:
    (1) The BIA road system and related road appurtenances such as 
signs, traffic signals, pavement striping, trail markers, guardrails, 
etc.;
    (2) Bridges and drainage structures;
    (3) Airport runways and heliport pads;
    (4) Boardwalks;
    (5) Adjacent parking areas;
    (6) Maintenance yards;
    (7) Bus stations;
    (8) System public pedestrian walkways, paths, bike and other 
trails;
    (9) Motorized trails;
    (10) BIA and tribal post-secondary school roads and parking lots 
built with IRR Program Funds; and
    (11) Public ferryboats.


Sec. 170.806  Is maintenance required on facilities built with federal 
funds?

    Yes, maintenance is required on all IRR facilities built with 
federal transportation funds.


Sec. 170.807  Do BIA or the tribes have to perform all of the IRR 
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 
Region in appropriations of BIA Road Maintenance dollars.


Sec. 170.808  What activities are eligible for funding under the BIA 
Road Maintenance Program?

    Appendix A to this subpart contains a list of activities that are 
eligible for funding under the BIA road maintenance program.


Sec. 170.809  What is an IRR TFMMS?

    The IRR Transportation Facilities Maintenance Management Systems 
(TFMMS) is a tool used by BIA and tribes to budget, prioritize, and 
efficiently schedule all transportation facility maintenance 
activities. It is employed to extend the life of an IRR transportation 
facility, ensure safety and report future funding needs to the 
Secretary.


Sec. 170.810  What must an effective IRR TFMMS include at a minimum?

    (a) At a minimum the 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 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. 170.811  Can Maintenance Program funds be used to upgrade IRR 
facilities?

    No, BIA Road maintenance Program funds must not be used to upgrade 
roads or other IRR transportation facilities to a higher road 
classification, standard or capacity.


Sec. 170.812  Can tribes enter into a self-determination contract or 
self-governance agreement for the BIA Road Maintenance Program?

    Yes, any tribe may enter into contracts or self-governance 
agreements to conduct IRR transportation facility maintenance under the 
ISDEAA and 25 CFR part 900 or 1000. This self-determination contract or 
self-governance agreement does not relieve BIA of its responsibility 
for maintenance.


Sec. 170.813  To what standards must an IRR transportation facility be 
maintained?

    IRR transportation facilities must be maintained, subject to 
availability of funding, in accordance with standards referred to in 
this part as the IRR Transportation Facility Maintenance Standards 
(IRR-TFMS). The Secretary will develop these standards with the 
assistance 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 or a combination 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 contract or self-governance agreement.


Sec. 170.814  Can BIA Road Maintenance funds be used for heliport 
facilities?

    BIA road maintenance funds may be used to maintain heliports, 
runways, and public access roads to these facilities.


Sec. 170.815  What happens if a facility is not being maintained due to 
lack of funds?

    If the Secretary determines that an IRR transportation facility is 
not being maintained under IRR-TFMS standards due to insufficient 
funding, the Secretary must report these findings to Congress under 23 
U.S.C. 204.


Sec. 170.816  Must IRR bridge inspections be coordinated with tribal 
and local authorities?

    (a) The certified bridge inspectors working for BIA, State, county 
or local

[[Page 51397]]

governments (per 23 CFR 650.307) must coordinate with the affected 
tribes, BIA Regional offices, and State or local governments before 
performing IRR bridge inspections. This coordination must include prior 
written notification to the tribal and other local public authorities 
and the opportunity to accompany the inspectors.
    (b) When a tribe enters into an ISDEAA contract or self-governance 
agreement to perform bridge inspections, the certified bridge 
inspectors working for the tribe must coordinate with the BIA Regional 
office, and affected State or local governments before performing IRR 
bridge inspections. Such coordination must include prior written 
notification to the BIA Regional office and other local public 
authorities and the opportunity to accompany the inspectors.


Sec. 170.817  What are the minimum qualifications for certified bridge 
inspectors?

    (a) The person responsible for the bridge inspection team is not 
required to be on site during all phases of the bridge inspection. The 
responsible person must possess one or more of the following minimum 
qualifications:
    (1) Be a registered professional engineer;
    (2) Be qualified for registration as a professional engineer under 
the laws of the State; or
    (3) Have a minimum of 10 years experience in bridge inspection 
assignments in a responsible capacity and have completed a 
comprehensive training course based on the ``Bridge Inspector's 
Training Manual,'' as revised.
    (b) The person signing the bridge inspection report must possess 
one or more of the following minimum qualifications:
    (1) Have the qualifications specified for the individual in charge 
of the organizational unit delegated the responsibilities for bridge 
inspection;
    (2) Have a minimum of 5 years experience in bridge inspection 
assignments in a responsible capacity and have completed a 
comprehensive training course based on the ``Bridge Inspector's 
Training Manual,'' as revised; or
    (3) Have a current certification as a Level III or IV Bridge Safety 
Inspector under the National Society of Professional Engineer's program 
for National Certification in Engineering Technologies (NICET) is an 
alternate acceptable means for establishing that a bridge inspection 
team leader is qualified.


Sec. 170.818  Must bridge inspection reports be reviewed?

    Yes, the data required to complete the forms and the functions that 
must be performed to compile the data are contained in section 3 of the 
AASHTO Manual. Copies of all IRR bridge inspection reports are sent to 
the respective BIA regional office. The BIA regional office reviews the 
reports and furnishes the report to the affected tribe for review, 
comment and use in the programming of transportation projects. After 
review, the inspection reports for BIA bridges are forwarded to BIADOT 
for quality assurance and inclusion into the National Bridge Inventory 
(NBI).


Sec. 170.819  How often are IRR bridge inspections performed?

    IRR Bridge inspections must be performed at least every two years 
to update the NBI using standards that meet or exceed applicable 
federal standards (23 CFR 650.305).


Sec. 170.820  What standards are used for bridge inspections?

    (a) Federal standards for bridge inspections are found in 23 CFR 
650, subpart C.
    (b) Tribes may develop alternative bridge inspection standards, 
provided that these standards meet or exceed applicable Federal 
standards.


Sec. 170.821  What is emergency maintenance?

    Emergency maintenance is work that must be accomplished immediately 
because of life threatening circumstances. 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 
natural disasters.


Sec. 170.822  What is a Declared State of Emergency?

    This is an official declaration of emergency by Federal, State, 
tribal, or local governments for adverse acts of nature that cannot be 
scheduled or planned in advance such as wind, earthquakes, floods, 
fire, and other acts of God.


Sec. 170.823  When can access to IRR transportation facilities be 
restricted?

    (a) The Secretary may, in consultation with a tribe, restrict or 
temporarily close an IRR transportation facility to public use for the 
following reasons:
    (1) During unsafe conditions;
    (2) During 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) Certain IRR Transportation facilities owned by the tribes or 
BIA may be permanently closed when the tribal governments and the 
Secretary have agreed the facility's use is no longer needed. Once this 
determination is made, the facility must be removed from the IRR 
Transportation Facility Inventory and the BIA Transportation System.

Appendix A to Subpart G

List of Activities Eligible for Funding Under The 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. Administration of 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 ferryboats.

[[Page 51398]]

    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

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, 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, International Atomic Energy Agency, 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 through 180; 10 
CFR part 71.


Sec. 170.902  What transport activities do State, tribal, and local 
governments perform?

    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 choose to 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  How is a tribe notified of the transport of radioactive 
waste?

    The Department of Energy (DOE) has elected, by policy, to notify 
tribal governments 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, then DOE typically takes steps to ensure that 
the appropriate state and tribal agencies are contacted and coordinate 
any necessary Radiological Assistance Program team activities. These 
teams may include nuclear engineers, health physicists, industrial 
hygienists, public affairs specialists, and other personnel who provide 
field monitoring, sampling, decontamination, communications, and other 
services as may be requested.


Sec. 170.905  Can tribes use IRR Program funds for training in handling 
radioactive and hazardous material?

    No, Tribes cannot use IRR Program construction funds to train 
personnel to handle radioactive and hazardous material.


Sec. 170.906  Can tribes obtain training in transporting hazardous 
material?

    Yes, Tribes are encouraged to seek training from DOE, EPA, NRC, 
OSHA, states, and other sources. Funding is available from the U.S. DOT 
under the Hazardous Materials Uniform Safety Act, EPA for monitoring 
and FEMA for general preparedness. DOE is working with states and 
tribes to develop a uniform grant for transportation planning for 
accommodating radioactive and hazardous material transport.


Sec. 170.907  How are radioactive and hazardous material spills 
addressed?

    The carrier is typically responsible for clean-up with assistance 
from the shipper using established standards and guidelines. The 
carrier of the cargo should work with the appropriate tribal, local, 
state and federal agencies to address all cleanup issues, such as 
arranging or 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 within 15 workdays of the request.


Sec. 170.915  Are Indians entitled to employment and training 
preferences?

    Yes, Federal law gives hiring and training preferences to Indians 
for all work performed under the IRR Program. Tribal governments and 
BIA must, to the greatest extent feasible, give hiring and training 
preferences to Indians when operating IRR programs or projects.


Sec. 170.916  Are Indian organizations and Indian-owned businesses 
entitled to a contracting preference?

    Yes, 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. 170.918  Is Indian preference permitted for federally funded non-
IRR transportation projects?

    (a) Indian employment preference is permitted for federally-funded 
transportation projects not funded under the IRR Program if the project 
is carried out on an Indian Reservation Road.
    (b) Tribal, State, and local governments may provide an employment 
preference to Indians when administering Federal Lands Highway and 
Federal-Aid Highway projects on Indian reservation roads. (See 23 
U.S.C. 140(d), 204(b), 204(e), and 23 CFR 635.117.)
    (c) Tribes may target recruiting efforts toward Indians living on 
or near Indian reservations, Indian lands, Alaska Native villages, 
pueblos, and Indian communities.
    (d) Tribes and tribal employment rights offices are encouraged to 
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. Once established, the agencies should only change these 
employment goals after consultation with the affected Indian tribal 
government(s).


Sec. 170.919  May tribal-specific employment rights and contract 
preference laws apply to IRR projects?

    Yes, when a tribe or consortium administers an IRR Program intended 
to benefit that tribe or a tribe within the consortium, the benefitting 
tribe's employment rights and contracting preference laws apply. (See 
25 U.S.C. 450e(c).)

[[Page 51399]]

Sec. 170.920  What is the difference between tribal preference and 
Indian preference?

    Indian preference is a 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. 170.921  May the cost of tribal employment taxes or fees be 
included in the budget for an IRR project?

    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. 170.922  May tribes impose taxes or fees on those performing IRR 
Program services?

    Yes, Tribes, as sovereign nations, have inherent authority to 
impose taxes and fees for IRR activities on or near Indian 
reservations. When a tribe administers IRR programs or projects under 
the ISDEAA, its tribal employment and contracting preference laws, 
including taxes and fees, apply to those IRR activities whether or not 
the activities occur within the tribe's territorial jurisdiction.


Sec. 170.923  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. 170.924  What is the purpose of the provisions relating to 
emergency relief?

    Sections 170.924 through 170.932 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. 170.925  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, which 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. 170.926  How can States get Emergency Relief Program funds to 
repair IRR System damage?

    A State 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. 170.927  What qualifies for ERFO funding?

    Tribes can use Emergency Relief for Federally Owned Roads (ERFO) 
funding to repair damage to Indian reservation 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 or his/her designee determines eligible repairs 
according to procedures in 23 CFR part 668, subpart B.
    (a) Examples of natural disasters include, but are not limited to, 
floods, earthquakes, tornadoes, landslides, avalanches or severe 
storms, such as saturated surface conditions and/or high-water table 
caused by precipitation over an extended period of time.
    (b) 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.


Sec. 170.928  What does not qualify for ERFO funding?

    Structural deficiencies, normal physical deterioration, and routine 
heavy maintenance do not qualify for ERFO funding. The Secretary of 
Transportation or his/her designee determines eligible repairs 
according to procedures set forth in 23 CFR part 668, subpart B.


Sec. 170.929  What happens if an ERFO claim is denied?

    If DOT denies an ERFO claim, BIA or the affected Indian tribe may 
appeal the finding or determination to the Secretary of Transportation 
or his/her designee. The appealing tribe must provide a courtesy copy 
of its appeal to BIA.


Sec. 170.930  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 available 
ERFO funds may be used to reimburse the construction or maintenance 
funds expended.


Sec. 170.931  Can a tribe administer ERFO repairs under a self-
determination contract or a self-governance agreement?

    Yes, ERFO funding is not part of the recurring base funding in a 
self-determination contract or self-governance agreement.


Sec. 170.932  How can FEMA Program funds be accessed to repair damage 
to the IRR System?

    A tribe can request FEMA Program funds for emergency repairs to 
damaged roads 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). 
Tribes can also ask States to seek FEMA Program funds to repair damage 
to roads in the IRR System.

Tribal Transportation Departments


Sec. 170.936  Can a tribe establish a Tribal Transportation Department?

    Yes, Tribal governments, as sovereign nations, have inherent 
authority to establish their own transportation departments under their 
own tribal laws.


Sec. 170.937  How can tribes find out information about staffing and 
organization of tribal transportation departments?

    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 road engineers, or AASHTO to 
establish a tribal transportation department.


Sec. 170.938  Are there any other funding sources available to operate 
tribal transportation departments?

    There are many sources of funds that may help support a tribal 
transportation department. These include, but are not limited to, the 
sources listed below. Note that each source has its own terms and 
conditions of assistance.
    (a) Tribal general funds;
    (b) Tribal Priority Allocation (TPA);
    (c) Revenue from States and counties;
    (d) Fare collections;
    (e) Aviation fees;
    (f) Tribal permits and license fees;
    (g) Tribal fuel tax;

[[Page 51400]]

    (h) Federal, state, private and local transportation grants 
assistance;
    (i) Funds for transit, safety and education from other federal 
programs;
    (j) TERO fees;
    (k) Capacity building grants from Administration for Native 
Americans and other organizations; and
    (l) Federal Aviation Administration grants and education from other 
federal programs.


Sec. 170.939  Can tribes use IRR Program funds to pay for costs to 
operate a tribal transportation department?

    Yes, Tribes can use IRR Program funds to pay the cost of 
administration and performance of approved IRR Program activities. 
Tribes can also use BIA road maintenance funds to pay the cost of 
administration and performance of maintenance activities under this 
part.


Sec. 170.940  Can tribes regulate oversize or overweight vehicles?

    Yes, Tribal governments, as sovereign nations, have the authority 
to regulate travel on roads under their jurisdiction and to 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.

Arbitration Provisions


Sec. 170.941  Are alternative dispute resolution procedures available 
to self-determination and self-governance tribes and the Secretary to 
resolve disputes between them in performing IRR Public Law 93-638 
activities?

    Yes, except as required in 25 CFR part 900 and part 1000, tribes 
and tribal organizations are entitled to use the appropriate dispute 
resolution techniques or procedures set out in:
    (a) The ADR Act, 5 U.S.C. 571-583;
    (b) The Contract Disputes Act, 41 U.S.C. 601-613; and
    (c) The Indian Self-Determination and Education Assistance Act 
(including the mediation and alternative dispute resolution options 
listed in 25 U.S.C. 4501 (model contract section (b)(12)) and the 
implementing regulations for non-construction activities.


Sec. 170.942  Are alternative dispute resolution procedures available 
to resolve IRR program disputes?

    Yes, Federal agencies are authorized and encouraged to use 
mediation, conciliation, arbitration, and other techniques for the 
prompt and informal resolution of 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 are authorized and encouraged to 
resolve disputes at the lowest possible staff level and in a consensual 
manner whenever possible.


Sec. 170.943  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 Regional Director or the Chief of the 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/or 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. 170.950  How can a tribe or tribal organization find out if the 
ISDEAA has superseded an IRR provision?

    Any tribe or tribal organization may ask the Secretary for a 
determination that the ISDEAA has superseded a law or regulation. This 
would mean that the law has no applicability to any contract or self-
governance agreements.
    (a) The Secretary must provide an initial decision on the request 
within 75 days after receipt.
    (b) If the Secretary denies the request, the tribe or tribal 
organization may appeal under 25 CFR 900.150 and 1000.201.
    (c) The Secretary must provide notice of each determination made 
under this subpart to all tribes and tribal organizations.


Sec. 170.951  Can 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 
IRR TIPS;
    (e) Access Transportation Research Information System Network 
(TRISNET) database; and
    (f) Participate in transportation research activities under 
Intergovernmental Personnel Act agreements.


Sec. 170.952  Are federal funds available for coordinated 
transportation services for a tribe's Welfare-to-Work, Temporary 
Assistance to Needy Families, and other quality of life improvement 
programs?

    Yes, IRR Program funds can be used to coordinate transportation 
related activities in conjunction with tribal resources to help provide 
adequate access to jobs and make education, training, childcare, 
healthcare and other services more accessible to tribal members as part 
of IRR Program transportation planning activities. IRR Program funds 
may also be used as the matching share for other federal, state, and 
local mobility programs. To the extent authorized by law, additional 
grants and programs funds are available for this purpose from other 
Federal programs administered by such departments as the Department of 
Transportation, Department of Health and Human Services and Department 
of Labor. Tribes are also encouraged to apply for federal and state 
public transportation and personal mobility programs grants and funds.

[FR Doc. 02-18801 Filed 8-6-02; 8:45 am]
BILLING CODE 4310-LY-P