Federal Register, Volume 67 Issue 152 (Wednesday, August 7, 2002)

[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

[[Page 51343]]

(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:

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

[[Page 51344]]

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?

[[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

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?

[[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?

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?

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.
BILLING CODE 4310-L4-P
[GRAPHIC] [TIFF OMITTED] TP07AU02.009

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