[Federal Register Volume 69, Number 137 (Monday, July 19, 2004)]
[Rules and Regulations]
[Pages 43090-43141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15928]



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Part III





Department of the Interior





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Bureau of Indian Affairs



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25 CFR Part 170



Indian Reservation Roads Program; Final Rule

  Federal Register / Vol. 69, No. 137 / Monday, July 19, 2004 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 170

RIN 1076-AE17


Indian Reservation Roads Program

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: This final rule establishes policies and procedures governing 
the Indian Reservation Roads (IRR) Program. The IRR Program is a part 
of the Federal Lands Highway Program established to address 
transportation needs of tribes. The program is jointly administered by 
the Bureau of Indian Affairs (BIA) and Federal Highway Administration's 
(FHWA) Federal Lands Highway (FLH) Office. It expands transportation 
activities available to tribes and tribal organizations and provides 
guidance for planning, designing, constructing, and maintaining 
transportation facilities. It also establishes a funding distribution 
methodology called the Tribal Transportation Allocation Methodology 
(TTAM). The TTAM includes a factor for allocating IRR Program funds 
based on the relative needs of tribes and reservation or tribal 
communities for transportation assistance. It also addresses the 
administrative capacities of, and challenges faced by, various tribes 
including the cost of road construction, geographic isolation, and 
difficulty in maintaining all weather access to essential resources and 
services. The TTAM provides funding for Indian Reservation Roads High 
Priority Projects that would not otherwise have sufficient funding; and 
makes available a minimum allocation to tribes if funding levels are 
sufficient.

DATES: Effective Date: October 1, 2004.

ADDRESSES: LeRoy Gishi, Chief, Division of Transportation, Bureau of 
Indian Affairs, 1951 Constitution Avenue, NW., MS-320-SIB, Washington, 
DC 20240, Telephone 202-513-7711 or Fax 202-208-4696.

SUPPLEMENTARY INFORMATION:

I. Background

What Information Does This Section Address?

    This section addresses:
     The Transportation Equity Act for the 21st Century (TEA-
21), Public Law (Pub. L.) 105-178;
     The IRR Program;
     Publication of the NPRM;
     Public comments.

What Is the Transportation Equity Act for the 21st Century?

    The Transportation Equity Act for the 21st Century (TEA-21), Pub. 
L. 105-178, 112 Stat. 107, signed into law in 1998, is a broad-based 
statute that authorizes and expands the use of Federal Highway Trust 
funds through fiscal year 2003. Congress has extended TEA-21 and 
authorized the use of Federal Highway Trust funds into fiscal year 
2004. A new transportation authorization bill is currently before 
Congress.
    TEA-21 contained several provisions that directly affect the Indian 
Reservation Roads (IRR) program. TEA-21:
     Authorized $1.6 billion for the IRR Program for fiscal 
years 1998-2003;
     Provided that an Indian tribal government may request to 
enter into contracts or agreements under the Indian Self-Determination 
and Education Assistance Act (ISDEAA), Pub. L. 93-638, as amended, for 
IRR Program roads and bridges;
     Established the Indian Reservation Roads Bridge Program 
(IRRBP), codified at 23 U.S.C. 202 (d)(3)(B) under which a minimum of 
$13 million of IRR Program funds was set aside for a nationwide 
priority program for improving deficient IRR bridges. (On May 8, 2003, 
the Federal Highway Administration published a final rule for the IRR 
bridge program (68 FR 24642, now found at 23 CFR 661); and
     Required negotiated rulemaking between representatives of 
Indian tribes and the Federal Government (Department of the Interior 
(DOI) and Department of Transportation (DOT)) to develop IRR Program 
procedures and a funding formula to distribute IRR Program funds.

What Is the Indian Reservation Roads Program?

    The Indian Reservation Roads (IRR) Program is a part of the Federal 
Lands Highway Program established in 23 U.S.C. 204 to address 
transportation needs of tribes. The program is jointly administered by 
the Bureau of Indian Affairs (BIA) and Federal Highway Administration's 
(FHWA) Federal Lands Highway (FLH) Office. The IRR Program was 
established on May 26, 1928, by Pub. L. 520, 25 U.S.C. 318(a). It 
authorized the Secretary of Agriculture (which had responsibility for 
Federal roads at that time) to cooperate with state highway agencies 
and DOI to survey, construct, reconstruct, and maintain Indian 
reservation roads serving Indian lands. In 1982, under the Surface 
Transportation Assistance Act of 1982 (STAA), Pub. L. 97-424, Congress 
created the Federal Lands Highway Program (FLHP). This coordinated 
program addresses access needs to and within Indian and other Federal 
lands. The IRR Program is a funding category of this program. STAA 
expanded the IRR system to include tribally-owned public roads as well 
as state and county-owned roads. Each fiscal year FHWA determines the 
amount of funds available for construction. The BIA works with tribal 
governments and tribal organizations to develop an annual priority 
program of construction projects which is submitted to FHWA for 
approval based on available funding. FHWA allocates funds to BIA which 
distributes them for IRR projects on or near Indian reservations 
according to the annual approved priority program of projects (for 
further background information on the IRR Program see 67 FR 51328, 
August 7, 2002). The duties and responsibilities of BIA and FHWA are 
described in a Memorandum of Agreement between the two agencies.

What Is the Purpose of the IRR Program?

    The purpose of the IRR Program is to provide safe and adequate 
transportation and public road access to and within Indian 
reservations, Indian lands, and communities for Indians and Alaska 
Natives, visitors, recreational users, resource users, and others, 
while contributing to economic development, self-determination, and 
employment of Indians and Alaska Natives. As of October 2003, the IRR 
system consisted of approximately 25,700 miles of BIA and tribally-
owned public roads and 38,000 miles of state, county, and local 
government public roads.

How Is the IRR Program Funded?

    From the DOT appropriation, FHWA reserves an amount specified in 23 
U.S.C. 204 or in the DOT annual appropriations act. BIA and FHWA 
jointly administer the distribution of IRR Program funds under 
applicable laws and regulations.

Where Is Information on the TEA-21 Negotiated Rulemaking Process Found?

    Information on the TEA-21 Negotiated Rulemaking process is found at 
67 FR 51328, August 7, 2002.

How Did the Department Handle Public Comments to the Notice of Proposed 
Rulemaking (NPRM)?

    The NPRM, published August 7, 2002, provided for a 60-day comment 
period which was extended an additional 30 days to November 7, 2002. 
The DOT's Dockets Management Facility received

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electronic and written comments and posted them on its Web site at 
http://dms.dot.gov. We received responses from 1586 commenters. Most 
responses contained more than one comment on a variety of issues in the 
NPRM. At the close of the public comment period, DOI contracted with 
the U.S. Forest Service's Content Analysis Team to compile, organize, 
and summarize the public comments. The TEA-21 Negotiated Rulemaking 
Committee (Committee) reconvened in February and March, 2003, to review 
and consider the comment summation and make recommendations for the 
final rule based on public comments. All comments were carefully 
considered.
    Some commenters made recommendations for changes that were not 
accepted or not acted upon for various reasons (such as requests for 
unnecessary detail, unclear requests, requests or comments that were 
unresponsive to the proposed rule or comments that were beyond the 
scope of the rule). Some commenters made statements of opinion or 
position, but requested or indicated no changes. Several commenters 
discussed issues that were the responsibility of other government 
entities and were therefore beyond the authority of the Secretary of 
the Interior to change. We did not adopt these changes. Some commenters 
requested modifications that required additional statutory authority 
and their comments could not be adopted. A few commenters made 
suggestions for grammatical and organizational changes which were 
adopted.
    The Committee either accepted comments, accepted comments with 
modification(s), or rejected comments. DOI reviewed the Committee's 
recommendations on the public comments for the final rule. The 
discussion of changes from the NPRM to this final rule included in this 
preamble reflect major substantive public comments received on the 
NPRM. The full public comment compilation and summation report is 
available at http://www.dot.gov. or by contacting the Chief, Division 
of Transportation, Bureau of Indian Affairs, at the address provided in 
the ADDRESSES section of this preamble.
    In addition to changes the Committee made based on public comments, 
DOI reviewed the rule for legal and policy issues and edited the rule 
for clarity, conciseness, and Federal Register format. Some sections 
were combined or rearranged and others were revised under Departmental 
or Federal Register requirements. Where questions and answers were 
found not to be entirely consistent in language, we revised them for 
consistency. We also made editorial and substantive changes to clarify 
or correct errors or omissions in the NPRM. These include changes to 
Subpart C--Indian Reservation Roads Program Funding. Because the 
funding methodology is central to this rule it was essential that DOI 
thoroughly understand the details and ultimate purpose of the tribally-
proposed TTAM in order to implement it. On two separate occasions we 
verified the intent of the tribally-proposed TTAM with tribal committee 
representatives. Based on the verification of intent from the Committee 
and on public comments, we found errors in the data contained in the 
tables and appendices for Subpart C. The proposed funding model (the 
simplified approach) was the mathematical model published in the NPRM. 
This model was mathematically incomplete because it did not account for 
all possible combinations for use of eligible data. Because this 
distribution of data affected all tribes, the TTAM could not be 
implemented with the existing data. We corrected data errors and edited 
tables to make them consistent with Subpart C and to ensure 
implementation of the TTAM. We did not change defaults and items that 
tribal representatives negotiated. We made substantive changes in the 
IRRHPP sections because they were internally inconsistent. For example, 
the time lines for IRRHPP applications and approvals were inconsistent 
with availability of funding from FHWA. The TTAM published in this 
final rule reflects the intent of the proposed funding methodology 
developed under negotiated rulemaking.

Key Areas of Disagreement

    The NPRM Preamble contained Key Areas of Disagreement upon which 
the TEA-21 Negotiated Rulemaking Committee was unable to reach 
consensus. For each of the disagreement items the tribal and Federal 
sides presented their views, followed by their respective proposed 
questions and answers on those issues in the NPRM. The Administrative 
Procedure Act requires notice and comment on proposed rules which 
necessitates including the disagreement item questions and answers in 
the NPRM. We included the Federal version of the questions and answers 
for disagreement items in the appropriate subparts of the NPRM for 
comment. In addition, for easy reference within the NPRM preamble, we 
listed the section numbers where we inserted the Federal proposed 
sections for each of the sections on disagreement items.
    During consideration of the public comments, the tribal and Federal 
representatives discussed the disagreement items and, based on public 
comments, resolved six areas of disagreement from the NPRM. The 
Committee made recommendations for changes on these in the final rule 
and DOI adopted them, revising the relevant sections in the final rule. 
A discussion of the resolution of disagreement items is found below.

Committee Recommendations To Resolve Disagreement Items

    Based on discussions of public comments, the tribal and Federal 
sides were able to resolve several disagreement items. Based on those 
agreements, the Committee made recommendations to the Secretary for 
resolving the following disagreement items. The section numbers cited 
below refer to the section numbers in the NPRM. See the Conversion 
Table for the section numbers in the final rule.
    The first area of disagreement resolved is ``Eligibility'' in 
subpart B (Sec.  170.116). The disagreement issue was whether BIA or 
FHWA should make the determination on new proposed uses of IRR Program 
funds and the time period for BIA or FHWA to review any submission for 
a proposed new use. The Federal position was that FHWA approval was 
required for any new proposed use of IRR Program funds with a 60-day 
time period for review. The tribal position was that only BIA approval 
was required and the time for review should be shortened. The 
compromise, which is reflected in the new section (Sec.  170.117), 
requires that tribes send requests for new proposed uses of IRR Program 
funds only to BIA for approval and send copies of the requests to the 
FHWA. Also, by agreement of the tribal and Federal sides, we changed 
the time for review of any proposed new use of IRR Program funds from 
60 days to 45 days.
    The second area of disagreement resolved is ``Updating the IRRTIP'' 
in subpart D (Sec.  170.420). The issue involved how often 
Transportation Improvement Plans (TIPs) are updated. The tribal 
position recommended that updates to the IRRTIP occur on a quarterly 
basis and that BIA complete the updating process 45 days from date of 
receipt. The Federal side proposed that BIA submit TIP updates to FHWA 
on an annual basis only. The matter was resolved by providing clear 
definitions for and distinctions between an annual IRRTIP update and an 
IRRTIP amendment and including the time for BIA response. The final 
rule includes the following provisions: BIA updates

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the IRRTIP annually so that it can be approved and distributed near the 
beginning of the fiscal year; at any time during the fiscal year, until 
July 15, the tribe may request an amendment to its approved IRRTIP; 
and, if BIA receives amendments after July 15, the amendments are 
incorporated into the following fiscal year IRRTIP update. In addition, 
the final rule includes the following: BIA Regional Offices must now 
review all information a tribe submits and provide a Regional response 
within 45 days; and if the proposed TIP amendment includes the addition 
of a project not listed on the current approved IRRTIP, the tribe must 
submit the proposed amendment to FHWA for approval. The change 
emphasizes tribes' annually updating the current three-year approved 
IRRTIP, while also allowing tribes to amend IRRTIPs throughout the 
year, if necessary.
    The third area of disagreement resolved is ``Plans, Specifications, 
and Estimate (PS&E) Approval Authority'' in subpart D (Sec. Sec.  
170.480-481). The tribal and Federal sides disagreed on whether a tribe 
may assume the review and approval responsibility for PS&Es. During 
consideration of the public comments the tribal and Federal sides 
agreed on how to allow tribes to assume the review and approval 
authority. The final rule reflects the agreement in the PS&E sections 
by providing that a tribe may review and approve PS&Es for IRR-funded 
projects under certain circumstances where the function is included in 
the tribe's self-determination contract or self-governance agreement, 
or where the tribe is the owner of or is responsible for maintaining 
the transportation facility. The final rule also provides that for BIA-
owned or tribally-owned transportation facilities, a tribe may assume 
responsibility to review and approve PS&E packages under a self-
determination or self-governance agreement if the tribe provides 
assurances that a licensed professional engineer will review and 
certify that the PS&Es meet or exceed design health and safety 
standards referenced in the regulation. Also, an additional licensed 
professional engineer must perform a second level review at no less 
than 95 percent completion of the PS&E package. For a facility 
maintained by a public authority other than BIA or a tribe, in addition 
to satisfying the requirements set forth above (with limited 
exceptions), that other public authority will be provided an 
opportunity to review and approve the PS&E package when it is at least 
75 percent, but not more than 95 percent complete.
    The fourth area of disagreement resolved is ``IRR Construction 
Project Reports'' in subpart D (Sec. Sec.  170.485-489). The tribal and 
Federal sides agreed, based on public comments, how to regulate IRR 
construction project closeouts. The final rule provides clear roles and 
responsibilities for all affected parties, i.e., the Secretary; the 
tribe; BIA; and the facility owner, for: project inspection; closeout; 
audit; acceptance, and, the requirements for each process.
    The fifth area of disagreement resolved is ``Contents of Rights-of-
Way Documents'' in subpart D (Sec. Sec.  170.500-502). The issue is 
whether 25 CFR part 169 is the appropriate authority for tribal IRR's 
over Indian lands. While there was some agreement between the tribal 
and Federal sides on the minimum content required in a right-of-way 
document, there was disagreement over the applicability of 25 CFR part 
169 without appropriate qualifications for tribal IRR's over Indian 
lands. The tribal and Federal sides agreed, however, that relying on 25 
CFR part 169 as the only reference for rights-of-way over Indian lands 
was not appropriate since tribes are not required to obtain rights-of-
way when constructing IRRs across their own reservations. Both sides 
agreed that new language is necessary to make the distinctions clear 
about when 25 CFR applies to obtaining rights-of-way. However, adding 
new language to 25 CFR part 169 requires public notice and comment, and 
both sides agreed to delete the reference to 25 CFR part 169 in this 
rule. Therefore, 25 CFR part 169 remains the applicable regulation in 
certain circumstances for third parties' obtaining rights-of-way across 
Indian lands, but it is not referenced in the final rule.
    The sixth area of disagreement resolved is ``Content of Stewardship 
Agreements'' in subpart F (Sec. Sec.  170.701-705). Because the tribal 
and Federal sides agreed to revise the sections on PS&E package 
approval in the final rule, the sections on Stewardship Agreements are 
no longer applicable and we have deleted them.

Areas of Disagreement With No Committee Recommendation

    The Committee was not able to resolve the key area of disagreement, 
``General Issues'' in subpart A in the NPRM. The disagreement on 
availability of funds between the tribal and Federal sides on this 
subject is an issue of statutory interpretation. The tribal side's 
position is that TEA-21 requires that all IRR Program funds be made 
available under the requirements of the Indian Self-Determination and 
Education Assistance Act (ISDEAA). The Federal version is that under 
TEA-21, specifically section 1115(b) not all funds are required to be 
made available, but all funds that are made available must be made 
available in accordance with the requirements of ISDEAA. Many 
commenters supported the tribal view, however, the tribal and Federal 
Committee members were not able to resolve the disagreement over 
statutory interpretation. We have retained the Federal questions and 
answers for this item.
    One of the key areas of disagreement, ``Self-Governance Compacts'' 
in subpart H was not resolved after consideration of the comments. The 
disagreement centers around the right to assume individual projects or, 
alternatively, an entire program comprised of individual projects. 
Commingled in this issue of disagreement are issues of the 6 percent 
Program Management and Oversight (PM&O) funding and issues of using 
project funds for Federal responsibilities. The authority for the 6 
percent PM&O funding is the language in the annual DOI Appropriations 
Act. The authority for using project funds for Federal project 
responsibilities is ISDEAA language which mandates that the Secretary 
must assure health and safety in all projects. For the latter, the 
Federal side's position is that certain requirements apply to projects 
individually regardless of whether one or more projects are assumed 
collectively as a program. Thus, the tribal side's approach of 
eliminating Federal access to project funds to carry out project 
responsibilities would jeopardize the Federal Government's obligation 
to assure health and safety for individual construction projects. In 
addition, the tribal side's view would eliminate the Secretary's 
statutory right to use the 6 percent Program Management and Oversight 
funding, as needed. In other words, whether projects are assumed 
individually or collectively, the Federal side interprets ISDEAA as 
requiring the Secretary to assure health and safety for all 
construction. Many commenters supported the tribal view, but none 
presented a legal right to ignore the Secretary's discretion to use up 
to 6 percent of Program Management and Oversight funding or to ignore 
the Secretary's right to use project funds to carry out the Secretary's 
health and safety responsibilities under ISDEAA. Therefore, in the 
final rule we have retained the Federal questions and answers for this 
item.
    Another key area of disagreement that was not resolved was 
``Arbitration

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Provisions'' in subpart H (Sec. Sec.  170.941-952). Essentially, the 
tribal side elects to chose Alternative Dispute Resolution (ADR) 
procedures at their option. The Federal version is that ISDEAA and its 
implementing regulations for Indian self-determination contracts and 
self-governance agreements require that certain dispute procedures be 
utilized, but that ADR may be used only when both parties agree. For 
example, the Contract Disputes Act (CDA) is incorporated into ISDEAA 
and requires its own procedures once a contract or agreement is 
executed. While ADR may be used as an alternative, it is only 
appropriate when both parties agree. The tribal position would allow 
ADR unilaterally and solely at the tribe's option. Thus, with the 
tribal side's approach, a dispute could remain perpetually unresolved 
or as long as the tribe chooses. Many comments supported the tribal 
view, however, no commenters presented a legal basis to depart from the 
requirements of ISDEAA. We resolved this disagreement by retaining the 
Federal questions and answers for this item, with a modification. The 
modification adds ``for non-construction activities'' to Sec.  
170.941(c) to make clear that the Model Contract section of ISDEAA does 
not apply to construction activities.

Areas of Disagreement That Are Outside the Scope of Rulemaking

    The Department found four of the Key Areas of Disagreement, 
``Advance Funding'' in subpart E (Sec. Sec.  170.614-618), 
``Contractibility and Compactibility of TEA-21 Programs'' in subpart E 
(Sec. Sec.  170.600-636), ``Availability of Contract Support Funding'' 
in subpart E (Sec. Sec.  170.635-636), and ``Savings'' in subpart E 
(Sec.  170.620) to be outside the scope of this rulemaking. The 
discussion of these areas was included in the NPRM Preamble, however, 
so that the public would be aware of the Committee's discussions on 
these areas. We made no changes to the questions and answers pertaining 
to these issues in the NPRM.

Discussion of Public Comments

    The discussion of comments below is keyed to specific sections of 
the NPRM, including subparts and subheadings. Only major, substantive 
public comments are discussed below. In some instances, several 
commenters are represented as one comment--having made similar or 
identical comments. Grammatical changes, minor wording revisions, and 
other purely style-oriented comments are not discussed; however, 
changes to the final rule reflect such public comments. The section 
number references are to the final rule.

Subpart A--Policies, Applicability, and Definitions

    Comment: Change the term ``tribal contractor'' to ``tribal 
government'' as this is a more appropriate term with respect to Indian 
self-determination and tribal self-governance.
    Response: A change throughout the final rule has been made to refer 
to ``Indian tribe or tribal organization'' rather than tribal 
contractor, where applicable, for consistency with the Indian Self-
Determination and Education Assistance Act (ISDEAA).
    Comment: Language should be included that would indicate that 
tribes be included in the development of policies, consistent with 
Federal rules and regulations.
    Response: Language was added to indicate that the development of 
policies would be ``in consultation with Indian tribes.''
    Comment: The rule should indicate that where different from ISDEAA, 
the IRR Program regulations should serve to advance--rather than 
retard--the Federal Government's policy of increasing tribal autonomy 
and discretion of this program.
    Response: Language has been added that ``Where this part differs 
from provisions in the Indian Self-Determination and Education 
Assistance Act of 1975 (ISDEAA), this part should advance the policy of 
increasing tribal autonomy and discretion in program operation.'' 
(Sec.  170.2(b))
    Comment: Tribes should only have to follow those IRR Program Policy 
and Guidance manuals and directives which are consistent with the 
regulations in this part and 25 CFR parts 900 and 1000. Tribes should 
not have to abide by any unpublished requirements, guidelines, manuals, 
or policy directives of the Secretary, unless otherwise required by 
law.
    Response: This change was made and is reflected in Sec.  170.3.
    Comment: Delete the term ``Act'' and refer only to the Indian Self-
Determination and Education Act (ISDEAA).
    Response: Reference is made to ISDEAA and ``Act'' is removed from 
the text of the rule.
    Comment: Delete the term ``Compact'' and refer instead to ``self-
governance agreement.''
    Response: Reference is made to ``self-governance agreement'' only 
and the term ``compact'' is deleted.
    Comment: In the definition of the term ``construction,'' delete 
``highway'' and add ``IRR Program transportation facility.''
    Response: The reference to ``highway'' was changed to ``IRR Program 
transportation facility.''
    Comment: A construction contract is not a project. The term 
``Construction Contract'' should be rewritten by inserting ``contract 
for a'' and deleting ``or'' after ``self-determination.'' Items (1), 
(2) and (3) are inaccurate and unneeded.
    Response: Under ISDEAA a construction contract is defined as a 
project. ``Contract for a'' was added and ``or'' was deleted after 
``self-determination.'' Items (1), (2) and (3) remain in the rule to 
clarify restrictions. (Sec.  170.5)
    Comment: Delete the term ``Contract'' since this is unnecessary 
when all types of contracts are otherwise explained by reference and 
within the context of the rule.
    Response: ``Or a procurement document issued under Federal or 
tribal procurement acquisition regulations'' was added to the 
definition of ``Contract.'' (Sec.  170.5)
    Comment: The term ``governmental subdivision of a tribe'' should be 
clearly (and narrowly) defined.
    Response: The term ``governmental subdivision of a tribe'' is added 
and defined to be ``the unit of a federally-recognized tribe which is 
authorized to participate in the IRR Program activity on behalf of the 
tribe.'' (Sec.  170.5)
    Comment: Add the term ``Indian Reservation Road (IRR)'' to the 
definitions section.
    Response: The term ``Indian Reservation Road (IRR),'' as it is 
defined under 23 U.S.C. 101(a), has been added to the definitions 
section. (Sec.  170.5)
    Comment: Add the term ``IRR Program Management Funds'' to the 
definitions section.
    Response: The term ``IRR Program Management and Oversight Funds'' 
has been added to the definitions in subpart A, Sec.  170.5 to mean 
``those funds authorized by Congress in the annual appropriations acts 
to pay the cost of performing IRR Program management activities.''
    Comment: Delete the reference to ``up to 2 percent planning funds'' 
and substitute a reference to planning funds authorized under 23 U.S.C. 
204(j) to cover any future legislative language.
    Response: The reference to planning funds authorized under 23 
U.S.C. 204(j) or ``tribal transportation planning funds'' was 
substituted. ``Tribal transportation planning funds'' is defined in 
subpart A, Sec.  170.5.
    Comment: Within the term ``Rehabilitation,'' reference should be

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made to all work, rather than just to major work. Rehabilitation is not 
confined only to bridge work.
    Response: The term ``Rehabilitation'' references transportation 
facilities, rather than only bridges, and does not refer only to major 
work. (Sec.  170.5)
    Comment: The term ``Transportation Improvement Program (TIP)'' 
should be better defined.
    Response: The term ``TIP'' has been deleted and the definitions of 
TTIP, IRRTIP, and STIP are included in the definitions in subpart A, 
Sec.  170.5.

Subpart B--Indian Reservation Roads Program Policy and Eligibility

Consultation, Collaboration, Coordination
    Comment: Properly identify the Community Development Administration 
funds as being ``USDA Rural Development'' funds and reference the 
appropriate authority under the ``Federal Transit Administration.''
    Response: These references were made in the final rule. (Sec.  
170.105)
    Comment: The rule should spell out the obligations of the States, 
MPOs, RPOs, and local governments to consult with tribes about planning 
for tribal transportation projects, including regionally significant 
projects.
    Response: No change was made to the final rule as the obligations 
of these parties are clearly referenced in 23 U.S.C. and are incumbent 
upon all parties dealing with tribal transportation projects.
Eligible Uses of IRR Program Funds
    Comment: Appendix A to subpart B should reflect the use of indirect 
cost in relation to non-construction administrative functions and 
equipment purchases in relation to administering the IRR Program 
generally.
    Response: The section was revised by adding ``other eligible 
activities described in this part'' to A.37 and B.67 in appendix A to 
subpart B and adding ``or in this part'' to the end of Sec.  
170.116(f).
    Comment: Provisions for cyclical maintenance activities should be 
clarified and reference to appropriate work under this activity should 
be illustrated.
    Response: The rule has been changed to reflect ``routine 
maintenance'' and reference to ``patching or marking pavement,'' and 
``bridge joints, drainage, and other work'' has been deleted in its 
entirety because maintaining bridge joints is an eligible activity and 
drainage is included in appurtenances. (Sec.  170.116) Eligible 
activities are adequately explained in appendix A to subpart B.
    Comment: Under ISDEAA only BIA, not FHWA, may determine the 
eligibility for a tribe's proposed new use of IRR Program funds.
    Response: The rule reflects that BIA will approve requests for new 
proposed uses of IRR Program funds for activities eligible under 25 
U.S.C. and FHWA approves requests for new proposed uses of IRR Program 
funds for activities eligible under 23 U.S.C.
    Comment: Approvals for new proposed uses should be completed in a 
more timely fashion--a response time of 45 days is recommended.
    Response: The time line for written responses has been changed in 
the rule from 60 days to 45 days. (Sec.  170.117)
    Comment: Include construction of public roads to BIA schools as an 
eligible activity.
    Response: Eligibility of construction of public roads accessing 
public schools is already included in the list of allowable uses of IRR 
Program funds in appendix A of subpart B.
Use of IRR and Cultural Access Roads
    Comment: Under Civil Justice Reform (Executive Order 12988), 
concern was raised with a tribe's ability to close a cultural access 
road. Further, under the Regulatory Flexibility Act, concern was raised 
about the many other non-Indian landowners served by tribally-owned 
roads who may be impacted by this rule.
    Response: Section 170.120 is revised to reflect that IRR's must be 
open and available for public use.
    Comment: IRRs must be open and available to public use because they 
are funded with public funds.
    Response: The term ``generally'' was deleted from the answer. 
(Sec.  170.120)
IRR Housing Access Roads
    Comment: Define the terms ``housing cluster'' and ``Indian 
community.''
    Response: A definition for ``housing cluster'' was added as 
follows: ``Housing cluster means three or more existing or proposed 
housing units.'' Sec.  170.127(c) The term ``Indian community'' was 
deleted because a housing cluster is necessarily part of an Indian 
community. ``On public rights-of-way'' was also added after ``housing 
streets'' in Sec.  170.128 in order to make the answer consistent with 
Sec.  170.127(a) which references ``public road.''
Toll, Ferry and Airport Facilities
    Comment: Clarify that a tribe operating the IRR Program under 
ISDEAA may use 100 percent of IRR Program funds to provide for the 
local match.
    Response: In the final rule, the question relating to this issue 
was changed to reflect the use of IRR Program funds to provide for the 
local match. (Sec.  170.130)
Recreation, Tourism, and Trails
    Comment: Clarification should be made that tribes may use IRR 
Program funds for recreation, tourism, and trails.
    Response: The clarification that tribes, tribal organizations, 
tribal consortiums, and BIA may use the funds has been made in the 
final rule. (Sec.  170.135).
Highway Safety Functions
    Comment: Separate references should be made to (1) Highway Safety 
Programs and (2) IRR Programs to be consistent with the remaining list 
of Federal programs under which funds may be available for a tribe's 
highway safety programs and reference other funding Congress may 
authorize and appropriate.
    Response: The final rule reflects the separate references and 
references other funding from Congress. (Sec.  170.141)

Subpart C--Indian Reservation Roads Program Funding

Tribal Transportation Allocation Methodology (TTAM)
    Comment: Clarify takedowns and the order in which they are 
incorporated.
    Response: The TTAM diagram was revised for clarification, the 
descriptions made more concise, and the process better defined. (Sec.  
170.200)
IRR High Priority Project (IRRHPP)
    Comment: What activities cannot be funded with the IRRHPP?
    Response: The final rule identifies activities that cannot be 
funded with the IRRHPP. (Sec.  170.205(c))
    Comment: Clarify what constitutes an emergency/disaster.
    Response: Clarifications of emergency/disaster have been made. 
(Sec.  170.206)
    Comment: How are IRRHPP applications ranked?
    Response: Ranking clarifications were made in the final rule. 
(Sec.  170.209)
    Comment: How are unspent funds handled?
    Response: The final rule now states that upon completion of an 
IRRHPP, funds that are reserved but not expended are to be recovered 
and returned to the IRRHPP funding pool. (Sec.  170.213)
    Comment: The schedule for IRRHPP proposals should be changed due to 
concerns about the lack of time to get projects awarded and underway.
    Response: The final rule reflects the schedule change. (Sec.  
170.212)

[[Page 43095]]

Population Adjustment Factor
    Comment: The rule should better define the data used for PAF.
    Response: The final rule provides that the population figures are 
those defined in Sec.  170.220.
Relative Need Distribution Factor

    Note: Most of the sections on the RNDF were placed into appendix 
C to subpart C.

Appendix C to Subpart C
    Comment: Use of population figures developed under the Native 
American Housing Assistance and Self-Determination Act (NAHASDA) should 
not be qualified as ``interim'' and there should be a clarification 
that the American Indian and Alaska Native Service Population NAHASDA 
population figures will be used.
    Response: The reference to ``interim'' was deleted and the 
clarification was made. (Appendix C to subpart C)
    Comment: Is there a limit on how many proposed roads can be added 
to the inventory?
    Response: The final rule reflects that there is no limit.
    Comment: What is the definition of a proposed road and under what 
conditions can it be added to the inventory?
    Response: The definition of a proposed road is included in Sec.  
170.5 and how it is added to the inventory is provided in Sec.  
170.443.
    Comment: The designation of a road should reference that the 
national IRR Program bid tabulation data will be collected and input 
into the Cost-to-Construct database by BIADOT.
    Response: This reference was made in the final rule. (Appendix C to 
subpart C)

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

Transportation Planning
    Comment: Re-order the sections in a sequential order.
    Response: The sections were re-ordered, beginning with 
transportation planning through approval of the IRRTIP and providing 
documentation to States for inclusion in planning documents.
    Comment: Tribes may perform certain aspects of transportation 
planning under ISDEAA and BIA must perform certain aspects.
    Response: Those aspects of transportation planning that either a 
tribe or BIA must perform and aspects that either BIA or a tribe may 
perform have been clearly identified in the final rule. (Sec. Sec.  
170.401-402)
    Comment: Remove references to Regional Planning Organizations 
(RPOs) and Metropolitan Planning Offices (MPOs) as they may give the 
misconception that this rule creates rural planning offices.
    Response: The use of RPO and MPO was clarified to eliminate the 
misconception that ``Rural Planning Offices'' were being created. 
``Other appropriate planning authorities'' was included in addition to 
States and their political subdivisions.
Transportation Improvement Program
    Comment: BIA should update IRRTIPs quarterly.
    Response: The provision for annual updates was retained in the 
final rule; however, the final rule provides that a tribe may request 
an amendment to the approved IRRTIP until July 15 of each year. 
(Sec. Sec.  170.425 and 170.427)
    Comment: BIA should review proposed changes to an approved IRRTIP 
within 45 days of receipt.
    Response: BIA will review and respond to amendments within 45 days 
of receipt. (Sec.  170.427)
    Comment: The requirement for, development of, and uses of a long-
range transportation plan (LRTP) should be clarified and redundancies 
within the sections eliminated.
    Response: The final rule makes these clarifications through the use 
of new questions and answers. Clarification of what comprises the LRTP 
has been made to include only the health and safety concerns relating 
to the transportation improvements; the inclusion of additional methods 
for public involvement in the development of the LRTP in allowing the 
tribe or BIA to post notices in accordance with local practice; 
clarifications to illustrate the requirements of a properly convened 
public meeting and its statutory notice. In addition, the requirement 
for the use of a consultant to approve the tribal LRTP has been 
deleted.
Public Hearings
    Comment: Clarify how BIA or a tribe determines the need for a 
public hearing and what funds are available for the hearing.
    Response: The final rule clarifies how the need for a public 
hearing is determined and what funds are available. (Sec. Sec.  
170.435-436)
    Comment: When a public meeting is held, a courtesy copy of the 
notice should be provided to the affected tribe and/or the BIA Regional 
Office.
    Response: This recommendation has been accepted in the final rule. 
(Sec.  170.438)
    Comment: Environmental and/or archaeological clearances should be 
included in the public hearing process.
    Response: These clearances are referenced in the final rule. (Sec.  
170.439)
    Comment: Are there any distinctions in funding for funding public 
hearings for IRR planning and funding for public hearings for projects?
    Response: Transportation planning public hearings are funded by 
tribal transportation planning funds or IRR Program construction funds 
and project public hearings are funded by construction funds. (Sec.  
170.436)
    Comment: Clarifications need to be made with respect to when the 
public must be notified before project activities begin and the 
responsibility BIA and/or the tribe must bear to provide such notice.
    Response: The final rule clarifies public notice requirements for 
both the tribe and BIA. (Sec. Sec.  170.438-441)
IRR Inventory
    Comment: Move sections on technical aspects of the inventory from 
subpart C to subpart D.
    Response: The sections were moved from subpart C to subpart D.
    Comment: References to Atlas maps and functional classifications 
are not required, too technical, and not important to the intent of 
this section.
    Response: These references have been deleted.
    Comment: The IRR inventory is a comprehensive database--not a list 
of information.
    Response: The final rule indicates that the inventory is a 
comprehensive database. (Sec. Sec.  170.5 and 170.442)
    Comment: Delete the section relating to the accuracy of the 
database because it addressed only roads and was not relevant to other 
transportation facilities.
    Response: The section was deleted.
    Comment: The surface type section is only for coding purposes in 
the inventory and should be removed from this section.
    Response: The surface type section has been removed.
    Comment: It should be made clear that the IRR Inventory is used for 
other purposes in addition to the Relative Need Distribution Factor.
    Response: The use of the IRR inventory has been clarified. (Sec.  
170.442)
    Comment: The section regarding ``accuracy provisions'' for all 
eligible transportation facilities is confusing and adds nothing 
substantive to the understanding of eligible transportation facilities. 
Recommend deleting this section.
    Response: This section was deleted in its entirety.

[[Page 43096]]

    Comment: The functional classification system categories used by 
the States and those used in the IRR Program should be consistent.
    Response: We have included the complete definitions that meet the 
simplified approach in appendix C of subpart C. Therefore, we have 
deleted this section and all other sections related to functional 
classification and surface type in subpart D.
Review and Approval of Plans, Specifications, and Estimates (PS&Es)
    Comment: Tribes should be able to assume review and approval 
authority for PS&Es for IRR-funded projects under a self-determination 
contract or a self-governance agreement.
    Response: We have created a new subheading, Review and Approval of 
Plans, Specifications, and Estimates. The final rule includes 
provisions that a tribe may perform this task where the function is 
included in the tribe's self-determination contract or self-governance 
agreement, or where the tribe is the owner of or is responsible for 
maintaining the transportation facility. In addition, for BIA-owned or 
tribally-owned transportation facilities, a tribe may assume 
responsibility to review and approve PS&E packages under a self-
determination contract or self-governance agreement so long as a tribe 
provides assurances that a licensed professional engineer will review 
and certify that the PS&Es meet or exceed design, health and safety 
standards referenced in these regulations. For a facility maintained by 
a public authority other than BIA or a tribe, a tribe must satisfy 
these requirements and provide the public authority an opportunity to 
review and approve PS&E packages. The final rule reflects the tribes' 
ability to ensure health and safety, inclusion of health and safety 
standards in self-determination contracts and self-governance 
agreements, and appropriate coordination with relevant authorities in 
the approval process. (Sec. Sec.  170.460-463)
    Comment: Some items listed as part of a PS&E package are 
supplemental, are not part of the package, and should be deleted.
    Response: The final rule states which items are supplemental to a 
PS&E package. (Sec.  170.460)
Construction and Construction Monitoring [and Rights-of-Way]
    Comment: Delete ``where feasible'' and replace ``consultation'' 
with ``coordination.''
    Response: In the final rule ``where feasible'' was deleted and 
``coordination'' was substituted for ``consultation.'' (Sec.  170.471)
    Comment: References to 25 CFR part 169, ``rights-of-way,'' pertain 
to third parties and not to tribes building IRRs on their reservations.
    Response: References to ``Rights-of-Way'' have been removed from 
the final rule although 25 CFR part 169 remains the authority for third 
parties on Indian lands.
    Comment: Who has final acceptance responsibility of the IRR 
Construction Project Report?
    Response: In the rewrite of the project closeout and audits 
sections (which have been combined), we indicate that the facility 
owner has final acceptance on the project and report. (Sec.  170.473)
Appendix A to Subpart D
    Comment: This Appendix should be characterized to acknowledge the 
IRR Program's responsibilities to effectively manage a broad range of 
cultural resources of which archaeological resources are only a part.
    Response: The Appendix has been re-titled as ``Cultural Resource 
and Environmental Requirements for the IRR Program.''
    Comment: Reference should be made to other implementing 
regulations, e.g., the Native American Graves Protection and 
Repatriation Act, the National Historic Preservation Act, and the 
Archaeological Resource Protection Act.
    Response: We have added ``other applicable Federal laws and 
regulations'' to encompass these (and other) implementing regulations, 
as appropriate.
Appendix B to Subpart D
    Comment: Add ``AASHTO Guidelines of Geometric Design of Very Low-
Volume Local Roads'' to the list of Design Standards for the IRR 
Program.
    Response: This reference has been added to appendix B to subpart D.

Subpart E--Service Delivery for Indian Reservation Roads

Funding Process
    Comment: The term ``TTAM'' should replace ``IRR Relative Need 
Formula'' to be consistent with subpart C.
    Response: The term ``TTAM'' has been appropriately referenced in 
this subpart.
    Comment: Publishing a notice of availability of funds in the 
Federal Register is an undue burden on the Federal Government and 
presents conflicts with other time lines in this rule.
    Response: We have revised this responsibility in the final rule by 
separating items BIA will publish in the Federal Register and the items 
that regional offices will provide to tribes upon publication of the 
notice of availability of funds. This will allow BIA to publish the 
amount of funding available in a manner that does not conflict with 
other time lines established in this rule and reduces the 
administrative burden. (Sec.  170.600)
Miscellaneous Provisions
    Comment: Add a provision for consulting with a tribe before using a 
force account even after a tribe declines a self-determination contract 
or self-governance agreement.
    Response: Because divulging bidding information is contrary to the 
Federal procurement regulations, we simply added more complete 
information about force accounts in the final rule. (Sec.  170.605)
Contracts and Agreements Under ISDEAA
    Comment: What protections are there if the tribe fails to 
substantially perform the contracted work?
    Response: We have clarified the final rule to indicate the 
sanctions (and protections) available when a tribe fails to 
substantially perform the contracted work. (Sec.  170.621)

Subpart F--Program Oversight and Accountability

    Comment: Some sections of this subpart should be removed because 
they more appropriately deal with PS&Es and not program stewardship.
    Response: The section on PS&Es has been revised to include the 
concerns that were referenced in this subpart. Consequently, their 
reference has been deleted from subpart F.

Subpart G--BIA Road Maintenance

    Comment: Change the term ``Motorized Trails'' to ``vehicle 
trails.''
    Response: We have changed the reference to ``motorized vehicle 
trails.'' (Sec.  170.803)
    Comment: Include a provision that the Secretary provide to the 
affected tribe a draft copy of the findings that an IRR transportation 
facility is not being maintained due to insufficient funding prior to 
providing the report to Congress under 23 U.S.C. 204.
    Response: The final rule provides that if BIA determines that an 
IRR transportation facility is not being maintained under IRR TFMMS 
standards due to insufficient funding, under 23 U.S.C. 204, BIA must 
continue to request annual funding for road maintenance programs on 
Indian reservations. (Sec.  170.811). In addition,

[[Page 43097]]

the report is provided to the Secretary of Transportation not to 
Congress.
    Comment: The circumstances surrounding a temporary closure of or 
restricted access to an IRR transportation facility should be clarified 
to include private landowners in the decision-making process.
    Response: The final rule includes consultation with applicable 
private landowners in addition to the tribe and also indicates that 
consultation is not required whenever the conditions involve immediate 
safety and life-threatening situations. (Sec.  170.813)
    Comment: Include provisions ``including runway lighting'' and 
``boat ramps.''
    Response: These references have been added to the final rule. 
(Sec.  170.803)
    Comment: Provision should be made for catastrophic failure or 
natural disaster.
    Response: These provisions have been added to the final rule in 
discussion of the circumstances when closure of an IRR transportation 
facility is warranted. (Sec.  170.813)
    Comment: Recommended deleting from the answer the remainder of the 
sentence after the words ``local governments'' in Sec.  170.822.
    Response: The entire section was deleted.
    Comment: Recommended moving Sec. Sec.  170.816-820 on bridge 
inspections from subpart G to subpart D since bridge inspections are 
funded from the IRR Program rather than the Road Maintenance Program.
    Response: The sections on bridge inspections have been moved to 
Subpart D for clarity. We added a subheading for IRR bridge inspections 
under subpart D. (Sec. Sec.  170.504-507)

Subpart H--Miscellaneous

Tribal Transportation Departments
    Comment: Noted that the provision in Sec.  170.932 conflicts with a 
U.S. Supreme Court decision.
    Response: The section has been modified to reflect recent Federal 
case decisions.
    Comment: Switch the order of Sec.  170.938 and Sec.  170.939 for 
clarity.
    Response: These sections are now Sec.  170.931 and Sec.  170.932. 
We also added ``see appendix A, subpart B'' after ``activities'' in 
Sec.  170.931.
    Comment: It should be made clear that IRR Program funds can be used 
for transportation planning and administration.
    Response: This clarification has been made in the final rule. 
(Sec.  170.931)
Resolving Disputes
    Comment: The tribes should have the option of choosing the 
Alternative Dispute Resolution Act (ADR) to settle disputes arising out 
of their self-determination contracts or self-governance agreements.
    Response: The Contract Disputes Act is incorporated by reference 
into ISDEAA and applies to disputes after contracts or agreements are 
awarded. We clarified that the Contract Disputes Act is available for 
dispute resolution techniques or procedures for construction and the 
Model Contract is available for non-construction by moving ``and the 
implementing regulations'' from the end of the sentence to follow 
``ISDEAA'' and noting that ``non-construction activities'' applies only 
to the Model Contract. However, for non-construction activities under 
the Model Contract, alternative dispute resolution options are 
available--including the ADR. Section 170.934 was revised because it 
was ambiguous as written.

II. Summary of Regulations

Subpart A--Policies, Applicability, and Definitions

    This subpart outlines the authority under which this rule is 
established. The purpose and scope of this rule is defined with respect 
to 23 U.S.C. 202(d) and 204 and the IRR Program and this subpart 
provides interpretation of the language used throughout 23 U.S.C.
    The subpart further outlines the policies, guidance manuals, 
directives, and procedures that will govern the IRR Program under 
direct service, self-determination contracts, and self-governance 
agreements and also includes definitions used throughout the rule.

Subpart B--Indian Reservation Roads Program Policy and Eligibility

    This subpart:
     Explains the Federal, tribal, state, and local governments 
coordination, collaboration, and consultation responsibilities and how 
these efforts can effectively assist the tribal governments in meeting 
their transportation needs;
     Lists both the eligible and non-eligible activities for 
IRR Program funding;
     Discusses the use of all eligible Indian Reservations 
Roads and other transportation facilities eligible for construction, 
including cultural access roads, housing access roads, toll roads, 
recreation, tourism, trails, airport access roads, transit facilities, 
and seasonal transportation routes;
     Covers the highway safety aspects of the IRR Program and 
those activities, functions, and equipment that may be eligible for 
funding under this program;
    In addition, this subpart also includes:
     Transportation research activities;
     Education and training opportunities available to tribes 
and BIA through Local Technical Assistance Programs and other Federal, 
state, and local organizations; and
     How IRR Program funds may be used for education and 
training.

Subpart C--Indian Reservation Roads Program Funding

    This subpart covers the Tribal Transportation Allocation 
Methodology and the Relative Need Distribution Factor used to 
distribute IRR Program funds, including:
     An overview of the allocation of IRR Program Funds;
     The Transportation Planning Program (under 23 U.S.C. 
204(j));
     The Relative Need Distribution Factor for IRR 
Construction;
     The IRR High Priority Projects Program (IRRHPP); and
     The Population Adjustment Factor (PAF).
    It also covers the following factors used in the Relative Need 
Distribution Factor:
     Cost-to-Construct;
     Vehicle Miles Traveled; and
     Population.
    This subpart also includes:
     General Data Appeals;
     The IRR Inventory; and
     Long-Range Transportation Planning.

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

    This subpart discusses:
     The transportation planning responsibilities and 
requirements consistent with 23 U.S.C. 134 and 135;
     Funding sources for transportation planning;
     The requirements for developing a Transportation 
Improvement Program and Long-Range Transportation Plans including the 
requirements for public hearings and input into their development.
    This subpart also:
     Defines the IRR inventory, its components, and how it is 
developed and used;
     Includes the environmental and archaeological requirements 
applicable to projects under this program and whether IRR Program funds 
can be used for these requirements;
     Outlines design, construction, and construction monitoring 
standards;

[[Page 43098]]

     Includes closeout procedures for IRR Program construction 
projects and identifies the roles of and the responsible entities for 
such procedures;
     Discusses the processes and procedures used at the various 
office levels of the IRR Program to ensure that the program is being 
carried under these regulations and the governing laws; and
     Outlines the management systems that BIA must develop and 
maintain for oversight and management of the IRR Program.

Subpart E--Service Delivery for Indian Reservation Roads

    This subpart tells how ISDEAA can be used:
     To contract for programs under the IRR Program;
     In self-governance agreements;
     In consortium contracts and agreements;
     In multiple-year agreements;
     For rights of first refusal;
     In applicability of advance payments for ISDEAA contracts 
and agreements;
     For contingency funds; and
     For cost overruns.
    This subpart also covers:
     Indian preference versus local preference in contracting;
     Contract enforcement;
     The applicability of the Buy Indian Act and the Buy 
American Act to the IRR Program;
     The applicability of the Federal Acquisition Regulations 
and Davis Bacon wage rates with respect to self-determination contracts 
or self-governance agreements;
     Force account work;
     Waivers of regulations;
     The Federal Tort Claims Act;
     Technical assistance available to tribes planning to 
contract for IRR Program activities and/or functions; and
     Savings.

Subpart F--Program Oversight and Accountability

    This subpart discusses:
     Oversight roles and responsibilities for the IRR Program;
     Memoranda of Understanding; and
     Program accountability.

Subpart G--BIA Road Maintenance

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

Subpart H--Miscellaneous

    This subpart provides information on:
     The transport of hazardous and nuclear waste;
     Indian preference and tribal employment rights;
     The applicability of tribal taxes and fees for IRR 
Projects;
     The Emergency Relief Program;
     Establishing and operating tribal transportation 
departments and the eligible activities and/or functions for which 
these organizations can contract;
     Tribal regulations of oversize and overweight vehicles;
     Reporting requirements;
     Tribal employment rights;
     Alternative dispute resolution procedures to resolve IRR 
program disputes; and
     Research activities available under the IRR Program.

III. Procedural Requirements

A. Regulatory Planning and Review (Executive Order 12866)

    This final rule is a significant regulatory action requiring review 
by the Office of Management and Budget. The Office of Management and 
Budget has reviewed this final rule under Executive Order 12866. This 
final rule will have budgetary effects of entitlement, grants, user 
fees, or loan programs or the rights or obligations of their 
recipients. Funding for the IRR Program in fiscal year 2003 is $275 
million and is expected to increase in future years. It is anticipated 
that the IRR Program will receive more than $2 billion dollars over the 
next six years with the passage of a new Transportation authorization. 
The DOT, FHWA, allocates funds to DOI, BIA. BIA distributes the funds 
to each of its 12 regions based on the existing funding formula for the 
benefit of tribes in each region. This final rule will not adversely 
affect in a material way the economy, productivity, competition, jobs, 
the environment, public health or safety, or state, local, or tribal 
governments or communities. This final rule enables Indian tribes to be 
more directly involved in the care, upgrade, safety, and improvement of 
their transportation facilities. This rule sets forth policies and 
guidelines under which FHWA, BIA, and tribes that contract with BIA 
conduct the IRR Program. It also includes a funding methodology for 
distributing IRR Program funds. It covers current practices of DOT and 
DOI. DOT representatives have participated in this negotiated 
rulemaking, concur in all consensus items, and have provided comments 
on all disputed items. This final rule raises novel legal or policy 
issues that are contained in the Disagreement Items section of the 
Preamble. It also provides policy and guidance under the Indian Self-
Determination and Education Assistance Act, Pub. L. 93-638, and under 
the Transportation Equity Act for the 21st Century, Pub. L. 105-178, as 
they relate to the IRR Program which has been in effect since 1983.

B. Regulatory Flexibility Act

    DOI certifies that this document will not have a significant 
economic effect on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Indian tribes are 
not considered to be small entities for purposes of this Act.

C. Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This final rule is a major rule under the Small Business Regulatory 
Enforcement Fairness Act (5 U.S.C. 804(2)) because it has an annual 
effect on the economy of $100 million or more. The yearly amount of IRR 
Program funds is approximately $275 million.
    This final rule will not cause a major increase in costs or prices 
for consumers, individual industries, Federal, state, or local 
government agencies, or geographic regions. Actions under this final 
rule will distribute Federal funds to Indian tribal governments and 
tribal organizations for transportation planning, construction, and 
maintenance.
    This rule does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign based enterprises.

D. Unfunded Mandates Reform Act

    This final rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 
1995, 109 Stat. 48). This final rule will not result in the expenditure 
by State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year (2 U.S.C. 
1532).

E. Takings Implication Assessment (Executive Order 12630)

    This final rule does not have significant takings implications. 
This final rule does not pertain to taking of

[[Page 43099]]

private property interests, nor does it impact private property.

F. Federalism (Executive Order 12612)

    This final rule does not have significant federalism effects 
because it pertains solely to Federal-tribal relations and will not 
interfere with the roles, rights, and responsibilities of States.

G. Civil Justice Reform (Executive Order 12988)

    This final rule does not unduly burden the judicial system and 
meets the applicable standards provided in sections 3(a) and 3(b)(2) of 
Executive Order 12988.

H. Paperwork Reduction Act

    This rulemaking requires an information collection from 10 or more 
parties and a submission under the Paperwork Reduction Act of 1995, 
Pub. L. 104-13, is required. Accordingly, The Department prepared an 
OMB form 83-I for review and approval by OMB. Having reviewed the 
submissions of the Department with respect to the burden hours of each 
part of this rulemaking, along with any comments that were submitted by 
the reviewing public, OMB has approved the information collection 
requirements contained in this rulemaking and has assigned OMB control 
number 1076-0161. The expiration date of this control number is October 
31, 2005. This approval by OMB was necessitated by the requirements 
inherent in the revisions to 25 CFR part 170. Revisions to part 170 are 
in furtherance of a Departmental initiative to implement the 
Transportation Equity Act for the 21st Century (TEA-21) and set 
policies and procedures governing the IRR Program. The information 
provided through information collection requirements is used by DOI, 
BIA, to determine how funds appropriated by Congress under TEA-21 will 
be allocated to various tribal governments in implementing the IRR 
program. The information is particularly used in assisting tribal 
governments to meet reporting and application requirements for their 
participation in the IRR program, and is reflected in subparts C or D 
of this rulemaking. The total estimated burden hours for this 
information collection is 31,470 hours and is required to obtain or 
retain a benefit under 25 CFR part 170 pursuant to 5 CFR 1320.9. The 
public is invited to make any additional comments it may have 
concerning the accuracy of this burden estimate and any suggestions for 
reducing such burden.

I. National Environmental Policy Act

    DOI has determined that this rule does not constitute a major 
Federal action significantly affecting the quality of the human 
environment and that no detailed statement is required under the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321). Specific 
projects under the IRR Program will require NEPA review through an 
Environmental Assessment or Environmental Impact Statement.

J. Consultation and Coordination With Indian Tribal Governments 
(Executive Order 13175)

    Pursuant to Executive Order 13175 of November 6, 2000, Consultation 
and Coordination with Indian Tribal Governments, we have consulted with 
tribal representatives throughout the process of developing this rule 
through negotiated rulemaking. We conducted consultation at the 
Negotiated Rulemaking Committee's 23 meetings, accepted oral and 
written comments at all Committee meetings, maintained Committee 
information on the IRR Web site, provided periodic newsletters and 
other mailings, provided updates at intertribal and other Indian 
Reservation Roads transportation-related meetings, and sent periodic 
letters to tribal leaders. As part of the negotiated rulemaking process 
with tribes, we reviewed and considered public comments to the NPRM 
with the Negotiated Rulemaking Committee to make recommendations to the 
Secretary for the final rule. We have evaluated any potential effects 
on federally-recognized Indian tribes and have determined that there 
are no potential adverse effects. The final rule expands tribal 
participation in and responsibilities for various transportation-
related activities of the IRR program. We consulted with tribal 
governments and tribal organizations as part of the negotiated 
rulemaking process throughout the comment period after publication of 
this final rule.

IV. Reference Tables

    The following tables are provided to allow the reader to locate 
specific matters of interest under particular subheadings from the NPRM 
and determine if those sections have been relocated in the final rule.

----------------------------------------------------------------------------------------------------------------
              NPRM subpart                        NPRM subheading                    NPRM section Nos.
----------------------------------------------------------------------------------------------------------------
Subpart A...............................  General Provisions and           Sec.   170.1-Sec.   170.6
                                           Definitions.
Subpart B...............................  Indian Reservation Roads
                                           Program Policy and Eligibility.
                                          Consultation, Collaboration,     Sec.   170.100-Sec.   170.112
                                           Coordination.
                                          Eligibility for IRR Funding....  Sec.   170.114-Sec.   170.116
                                          Use of IRR and Cultural Access   Sec.   170.120-Sec.   170.126
                                           Roads.
                                          Seasonal Transportation Routes.  Sec.   170.130-Sec.   170.138
                                          IRR Housing Access and Toll      Sec.   170.140-Sec.   170.148
                                           Roads.
                                          Recreation, Tourism, Trails....  Sec.   170.150-Sec.   170.154
                                          Highway Safety Functions.......  Sec.   170.155-Sec.   170.159
                                          Non-Road Transportation........  Sec.   170.160-Sec.   170.162
                                          Transit Facilities.............  Sec.   170.163-Sec.   170.170
                                          IRR Program Coordinating         Sec.   170.171-Sec.   170.177
                                           Committee.
                                          Indian Local Technical           Sec.   170.178-Sec.   170.192
                                           Assistance Program (LTAP).
                                          LTAP Sponsored Education and     Sec.   170.193-Sec.   170.194
                                           Training Opportunities.
Subpart C...............................  Indian Reservation Roads         Sec.   170.225-Sec.   170.232
                                           Program Funding.
                                          Tribal Transportation            Sec.   170.235-Sec.   170.236
                                           Allocation Methodology for IRR
                                           Construction.
                                          IRR High Priority Projects       Sec.   170.245-Sec.   170.257
                                           (IRRHPP).
                                          Population Adjustment Factor     Sec.   170.263-Sec.   170.267
                                           (PAF).
                                          Relative Need Distribution       Sec.   170.270-Sec.   170.282
                                           Factor.
                                          General Data Appeals...........  Sec.   170.285-Sec.   170.288
                                          IRR Inventory and Long-Range     Sec.   170.290-Sec.   170.299
                                           Transportation Planning (LRTP).
                                          Long-Range Transportation        Sec.   170.300-Sec.   170.303
                                           Planning.
                                          Flexible Financing.............  Sec.   170.350-Sec.   170.357
Subpart D...............................  Planning, Design, and
                                           Construction of Indian
                                           Reservation Roads Program
                                           Facilities.
                                          Transportation Planning........  Sec.   170.400-Sec.   170.436

[[Page 43100]]

 
                                          Public Hearings................  Sec.   170.437-Sec.   170.445
                                          IRR Inventory..................  Sec.   170.446-Sec.   170.460
                                          Environment and Archeology.....  Sec.   170.461-Sec.   170.462
                                          Design.........................  Sec.   170.464-Sec.   170.469
                                          Construction and Construction    Sec.   170.472-Sec.   170.502
                                           Monitoring and Rights-of-Way.
                                          Program Reviews and Management   Sec.   170.510-Sec.   170.516
                                           Systems.
Subpart E...............................  Service Delivery for Indian      Sec.   170.600-Sec.   170.636
                                           Reservation Roads.
Subpart F...............................  Program Oversight and            Sec.   170.700-Sec.   170.708
                                           Accountability.
Subpart G...............................  BIA Road Maintenance...........  Sec.   170.800-Sec.   170.823
Subpart H...............................  Miscellaneous..................
                                          Hazardous and Nuclear Waste      Sec.   170.900-Sec.   170.907
                                           Transportation.
                                          Reporting Requirements and       Sec.   170.910-Sec.   170.923
                                           Indian Preference.
                                          Emergency Relief...............  Sec.   170.924-Sec.   170.932
                                          Tribal Transportation            Sec.   170.936-Sec.   170.940
                                           Departments.
                                          Arbitration Provisions.........  Sec.   170.941-Sec.   170.943
                                          Other Miscellaneous Provisions.  Sec.   170.950-Sec.   170.952
----------------------------------------------------------------------------------------------------------------

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[GRAPHIC] [TIFF OMITTED] TR19JY04.000

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[[Page 43102]]

List of Subjects in 25 CFR Part 170

    Highways and roads, Indians--lands.

    Dated: February 26, 2004.
David Anderson,
Assistant Secretary--Indian Affairs.

    Editorial Note: This document was received in the Office of the 
Federal Register on July 9, 2004.



0
For the reasons stated in the preamble, the Department of the Interior, 
Bureau of Indian Affairs, revises part 170 in title 25 of the Code of 
Federal Regulations as follows:

PART 170--INDIAN RESERVATION ROADS PROGRAM

Subpart A--Policies, Applicability, and Definitions
Sec.
170.1 What does this part do?
170.2 What is the IRR Program and BIA Road Maintenance Program 
policy?
170.3 When do other requirements apply to the IRR Program?
170.4 What is the effect of this part on existing tribal rights?
170.5 What definitions apply to this part?
170.6 Information collection.
Subpart B--Indian Reservation Roads Program Policy and Eligibility

Consultation, Collaboration, Coordination

170.100 What do the terms ``consultation, collaboration, and 
coordination'' mean?
170.101 What is the IRR Program consultation and coordination 
policy?
170.102 How do the Departments consult, collaborate, and coordinate 
with tribal governments?
170.103 What goals and principles guide the Secretaries?
170.104 Must the Secretary consult with tribal governments before 
obligating IRR Program funds?
170.105 Are funds available for consultation, collaboration, and 
coordination activities?
170.106 When must State governments consult with tribes?
170.107 Should planning organizations and local governments consult 
with tribes when planning for transportation projects?
170.108 Should Indian tribes and BIA consult with States' planning 
organizations and local governments in the development of their 
IRRTIP?
170.109 How do the Secretaries prevent discrimination or adverse 
impacts?
170.110 How can State and local governments prevent discrimination 
or adverse impacts?
170.111 What can a tribe do if discrimination or adverse impacts 
occur?

Eligible Uses of IRR Program Funds

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

Use of IRR and Cultural Access Roads

170.120 What restrictions apply to the use of an Indian Reservation 
Road?
170.121 What is a cultural access road?
170.122 Can a tribe close a cultural access road?

Seasonal Transportation Routes

170.123 What are seasonal transportation routes?
170.124 Does the IRR Program cover seasonal transportation routes?

IRR Housing Access Roads

170.127 What terms apply to access roads?
170.128 Are housing access roads and housing streets eligible for 
IRR Program funding?

Toll, Ferry and Airport Facilities

170.130 How can tribes use Federal highway funds for toll and ferry 
facilities?
170.131 How can a tribe find out more about designing and operating 
a toll facility?
170.132 When can a tribe use IRR Program funds for airport 
facilities?

Recreation, Tourism and Trails

170.135 Can a tribe use Federal funds for its recreation, tourism, 
and trails program?
170.136 How can a tribe obtain funds?
170.137 What types of activities can a recreation, tourism, and 
trails program include?
170.138 Can roads be built in roadless and wild areas?

Highway Safety Functions

170.141 What Federal funds are available for a tribe's highway 
safety activities?
170.142 How can tribes obtain funds to perform highway safety 
projects?
170.143 How can IRR Program funds be used for highway safety?
170.144 What are eligible highway safety projects?
170.145 Are other funds available for a tribe's highway safety 
efforts?

Transit Facilities

170.148 What is a tribal transit program?
170.149 How do tribes identify transit needs?
170.150 What Federal funds are available for a tribe's transit 
program?
170.151 May a tribe or BIA use IRR Program funds as matching funds?
170.152 What transit facilities and activities are eligible for IRR 
Program funding?

IRR Program Coordinating Committee

170.155 What is the IRR Program Coordinating Committee?
170.156 What are the IRR Program Coordinating Committee's 
responsibilities?
170.157 What is the IRR Program Coordinating Committee's role in the 
funding process?
170.158 How does the IRR Program Coordinating Committee conduct 
business?

Indian Local Technical Assistance Program

170.161 What is the Indian Local Technical Assistance Program?
170.162 How is the Indian LTAP funded?
170.163 How are Indian LTAP recipients selected?
170.164 How are tribal representatives nominated and chosen for the 
selection committee?
170.165 May a tribe enter into a contract or agreement for Indian 
LTAP funds?
170.166 What services do Indian LTAP centers provide?
170.167 How does a tribe obtain services from an Indian LTAP center?
170.168 Do Indian LTAP centers offer services similar to those of 
State LTAPs?
170.169 What can a tribe do if Indian LTAP services are 
unsatisfactory?
170.170 How are Indian LTAP centers managed?
170.171 How are tribal advisory technical panel members selected?

Indian LTAP-Sponsored Education and Training Opportunities

170.175 What Indian LTAP-sponsored transportation training and 
educational opportunities exist?
170.176 Where can tribes get scholarships and tuition for Indian 
LTAP-sponsored education and training?
Appendix A to Subpart B--Allowable Uses of IRR Program Funds
Appendix B to Subpart B--Sources of Tribal Transportation Training 
and Education Opportunities
Subpart C--Indian Reservation Roads Program Funding

Tribal Transportation Allocation Methodology (TTAM)

170.200 How does BIA allocate IRR Program funds?
170.201 How does BIA allocate and distribute tribal transportation 
planning funds?
170.202 Does the Relative Need Distribution Factor allocate funding 
among tribes?

IRR High Priority Project (IRRHPP)

170.205 What is an IRR High Priority Project (IRRHPP)?
170.206 How is an emergency/disaster defined?
170.207 What is the intent of IRRHPP emergency/disaster funding?
170.208 What funding is available for IRRHPP?
170.209 How will IRRHPP applications be ranked and funded?
170.210 How may a tribe apply for IRRHPP?
170.211 What is the IRRHPP Funding Priority List?
170.212 What is the timeline for IRRHPPs?
170.213 How long are IRRHPP funds available for a project?
170.214 How does award of an emergency/disaster project affect 
projects on the FPL?

Population Adjustment Factor

170.220 What is the Population Adjustment Factor?

[[Page 43103]]

170.221 What funding is available for distribution using the PAF?

Relative Need Distribution Factor

170.223 What is the Relative Need Distribution Factor (RNDF)?

IRR Inventory and Long-Range Transportation Planning (LRTP)

170.225 How does the LRTP process relate to the IRR Inventory?
170.226 How will this part affect the IRR Inventory?
170.227 How does BIA develop and use the IRR Inventory?
170.228 Are all facilities included in the IRR Inventory used to 
calculate CTC?

General Data Appeals

170.231 May a tribe challenge the data BIA uses in the RNDF?
170.232 How does a tribe appeal a disapproval from the BIA Regional 
Director?

Flexible Financing

170.300 May tribes use flexible financing to finance IRR 
transportation projects?
170.301 Can a tribe use IRR Program funds to leverage other funds or 
pay back loans?
170.302 Can BIA regional offices borrow IRR Program funds from each 
other?
170.303 Can a tribe apply for loans or credit from a State 
infrastructure bank?
Appendix A to Subpart C--IRR High Priority Project Scoring Matrix
Appendix B to Subpart C--Population Adjustment Factor
Appendix C to Subpart C--Relative Need Distribution Factor
Appendix D to Subpart C--Cost to Construct
Subpart D--Planning, Design, and Construction of Indian Reservation 
Roads Program Facilities

Transportation Planning

170.400 What is the purpose of transportation planning?
170.401 What is BIA's role in transportation planning?
170.402 What is the tribal role in transportation planning?
170.403 What IRR Program funds can be used for transportation 
planning?
170.404 What happens when a tribe uses its IRR Program construction 
funds for transportation planning?
170.405 Can tribal transportation planning funds be used for road 
construction and other projects?
170.406 How must tribes use planning funds?
170.407 What happens to unobligated planning funds?

Long-Range Transportation Planning

170.410 What is the purpose of tribal long-range transportation 
planning?
170.411 What can a long-range transportation plan include?
170.412 How is the tribal IRR long-range transportation plan 
developed and approved?
170.413 What is the public role in developing the long-range 
transportation plan?
170.414 How is the tribal long-range transportation plan used and 
updated?
170.415 What is pre-project planning?

Transportation Improvement Program

170.420 What is the tribal priority list?
170.421 What is the Tribal Transportation Improvement Program 
(TTIP)?
170.422 What is the IRR Transportation Improvement Program (IRRTIP)?
170.423 How are projects placed on the IRRTIP?
170.424 How does the public participate in developing the IRRTIP?
170.425 How does BIA update the IRRTIP?
170.426 What is the approval process for the IRRTIP?
170.427 How may an IRRTIP be amended?
170.428 How is the State Transportation Improvement Program related 
to the IRRTIP?

Public Hearings

170.435 How does BIA or the tribe determine the need for a public 
hearing?
170.436 How are public hearings for IRR planning and projects 
funded?
170.437 How must BIA or a tribe inform the public when no hearing is 
held?
170.438 How must BIA or a tribe inform the public when a hearing is 
held?
170.439 How is a public hearing conducted?
170.440 How can the public learn the results of a public hearing?
170.441 Can a decision resulting from a hearing be appealed?

IRR Inventory

170.442 What is the IRR Inventory?
170.443 How can a tribe list a proposed transportation facility in 
the IRR Inventory?
170.444 How is the IRR Inventory updated?
170.445 What is a strip map?

Environmental and Archeological Requirements

170.450 What archeological and environmental requirements must the 
IRR Program meet?
170.451 Can IRR Program funds be used for archeological and 
environmental compliance?

Design

170.454 What design standards are used in the IRR Program?
170.455 How are design standards used in IRR projects?
170.456 When can a tribe request an exception from the design 
standards?
170.457 Can a tribe appeal a denial?

Review and Approval of Plans, Specifications, and Estimates

170.460 What must a project package include?
170.461 May a tribe approve plans, specifications, and estimates?
170.462 When may a self-determination contract or self-governance 
agreement include PS&E review and approval?
170.463 What should the Secretary do if a design deficiency is 
identified?

Construction and Construction Monitoring

170.470 What are the IRR construction standards ?
170.471 How are projects administered?
170.472 What construction records must tribes and BIA keep?
170.473 What happens when a construction project ends?
170.474 Who conducts the project closeout?

Program Reviews and Management Systems

170.500 What program reviews do the Secretaries conduct?
170.501 What happens when the review process identifies areas for 
improvement?
170.502 Are management systems required for the IRR Program?
170.503 How are IRR Program management systems funded?

Bridge Inspection

170.504 When and how are bridge inspections performed?
170.505 How must bridge inspections be coordinated?
170.506 What are the minimum qualifications for certified bridge 
inspectors?
170.507 Who reviews bridge inspection reports?
Appendix A to Subpart D--Cultural Resource and Environmental 
Requirements for the IRR Program
Appendix B to Subpart D--Design Standards for the IRR Program
Subpart E--Service Delivery for Indian Reservation Roads

Funding Process

170.600 What must BIA include in the notice of availability of 
funds?
170.601 What happens to the unused portion of IRR Program management 
and oversight funds reserved by the Secretary?
170.602 If a tribe incurs unforeseen construction costs, can it get 
additional funds?

Miscellaneous Provisions

170.605 When may BIA use force account methods in the IRR Program?
170.606 How do legislation and procurement requirements affect the 
IRR Program?
170.607 Can a tribe use its allocation of IRR Program funds for 
contract support costs?
170.608 Can a tribe pay contract support costs from Department of 
the Interior or BIA appropriations?

Contracts and Agreements Under ISDEAA

170.610 What IRR Program functions may a tribe assume under ISDEAA?
170.611 What special provisions apply to ISDEAA contracts and 
agreements?
170.612 How are non-contractible functions funded?
170.613 When does BIA determine the amount of funds needed for non-
contractible non-project related functions?
170.614 Can a tribe receive funds before BIA publishes the notice of 
funding availability?

[[Page 43104]]

170.615 Can a tribe receive advance payments for non-construction 
activities?
170.616 How are advance payments made when additional IRR Program 
funds are made available after execution of the self-governance 
agreement?
170.617 May a tribe include a contingency in its proposal budget?
170.618 Can a tribe keep savings resulting from project 
administration?
170.619 Do tribal preference and Indian preference apply to IRR 
Program funding?
170.620 How do ISDEAA's Indian preference provisions apply?
170.621 What if a tribe fails to substantially perform work under a 
contract or agreement?
170.622 What IRR programs, functions, services, and activities are 
subject to the self-governance construction regulations?
170.623 How are IRR Program projects and activities included in a 
self-governance agreement?
170.624 Is technical assistance available?
170.625 What regulations apply to waivers?
170.626 How does a tribe request a waiver of a Department of 
Transportation regulation?
Appendix A to Subpart E--IRR Program functions that are not 
otherwise contractible
Subpart F--Program Oversight and Accountability
170.700 What is the IRR Program stewardship plan?
170.701 May a direct service tribe and BIA Region sign a Memorandum 
of Understanding?
170.702 What activities may the Secretary review and monitor?
Subpart G--BIA Road Maintenance
170.800 Who owns IRR transportation facilities?
170.801 What is the BIA Road Maintenance Program?
170.802 How is road maintenance funded?
170.803 What facilities are eligible under the BIA Road Maintenance 
Program?
170.804 How is BIA's Road Maintenance Program related to the IRR 
Program?
170.805 What are the local, tribal, and BIA roles in transportation 
facility maintenance?
170.806 What is an IRR Transportation Facilities Maintenance 
Management System (IRR TFMMS)?
170.807 What must BIA include when it develops an IRR Transportation 
Facilities Maintenance Management System?
170.808 Can BIA Road Maintenance Program funds be used to improve 
IRR transportation facilities?
170.809 Can a tribe perform road maintenance under a self-
determination contract or self-governance agreement?
170.810 To what standards must an IRR transportation facility be 
maintained?
170.811 What happens if lack of funds results in inadequate 
maintenance?
170.812 What is emergency maintenance?
170.813 When can access to IRR transportation facilities be 
restricted?
Appendix A to Subpart G--List of Activities Eligible for Funding 
Under BIA Transportation Facility Maintenance Program
Subpart H--Miscellaneous Provisions

Hazardous and Nuclear Waste Transportation

170.900 What is the purpose of the provisions relating to 
transportation of hazardous and nuclear waste?
170.901 What standards govern transportation of radioactive and 
hazardous materials?
170.902 What is the role of State, tribal, and local governments?
170.903 Who notifies tribes of the transport of radioactive waste?
170.904 Who responds to an accident involving a radioactive or 
hazardous materials shipment?
170.905 How can tribes obtain training in handling hazardous 
material?
170.906 Who cleans up radioactive and hazardous material spills?

Reporting Requirements and Indian Preference

170.910 What information on the IRR Program or projects must BIA 
provide to tribes?
170.911 Are Indians entitled to employment and training preferences?
170.912 Does Indian employment preference apply to Federal-aid 
Highway Projects?
170.913 Do tribal-specific employment rights and contract preference 
laws apply?
170.914 What is the difference between tribal employment preference 
and Indian employment preference?
170.915 May tribal employment taxes or fees be included in an IRR 
project budget?
170.916 May tribes impose taxes or fees on those performing IRR 
Program services?
170.917 Can tribes receive direct payment of tribal employment taxes 
or fees?

Emergency Relief

170.920 What is the purpose of the provisions relating to emergency 
relief?
170.921 What emergency or disaster assistance programs are 
available?
170.922 How can States get Emergency Relief Program funds to repair 
IRR System damage?
170.923 What qualifies for ERFO funding?
170.924 What happens if DOT denies an ERFO claim?
170.925 Is ERFO funding supplemental to IRR Program funding?
170.926 Can a tribe administer approved ERFO repairs under a self-
determination contract or a self-governance agreement?
170.927 How can FEMA Program funds be used to repair damage?

Tribal Transportation Departments

170.930 What is a tribal transportation department?
170.931 Can tribes use IRR Program funds to pay tribal 
transportation department operating costs?
170.932 Are there other funding sources for tribal transportation 
departments?
170.933 Can tribes regulate oversize or overweight vehicles?

Resolving Disputes

170.934 Are alternative dispute resolution procedures available?
170.935 How does a direct service tribe begin the alternative 
dispute resolution process?

Other Miscellaneous Provisions

170.941 May tribes become involved in transportation research?
170.942 Can a tribe use Federal funds for transportation services 
for a tribe's Welfare-to-Work, Temporary Assistance to Needy 
Families, and other quality-of-life improvement programs?

    Authority: Pub. L. 105-178, 112 Stat. 107; 5 U.S.C. 565; 23 
U.S.C. 101(a), 202, 204, 308; 25 U.S.C. 47, 25 U.S.C. 450.

Subpart A--Policies, Applicability, and Definitions


Sec.  170.1  What does this part do?

    This part provides rules and a funding formula for the Department 
of the Interior (DOI) in implementing the Indian Reservation Roads 
(IRR) Program. Included in this part are other Title 23 programs 
administered by the Secretary and implemented by tribes and tribal 
organizations under the Indian Self-Determination and Education 
Assistance Act of 1975, as amended (ISDEAA).


Sec.  170.2  What is the IRR Program and BIA Road Maintenance Program 
policy?

    (a) It is the policy of the Secretary of the Interior and the 
Secretary of Transportation (Secretaries) to do the following in 
relation to the IRR and BIA Road Maintenance Programs:
    (1) Provide a uniform and consistent set of rules;
    (2) Foster knowledge of the programs by providing information about 
them and the opportunities that they create;
    (3) Facilitate tribal planning, conduct, and administration of the 
programs;
    (4) Encourage the inclusion of these programs under self-
determination contracts or self-governance agreements;
    (5) Make available all contractible administrative functions under 
self-determination contracts or self-governance agreements; and
    (6) Implement policies, procedures, and practices in consultation 
with Indian tribes to ensure the letter, spirit, and goals of Federal 
transportation programs are fully implemented.
    (b) Where this part differs from provisions in the Indian Self-
Determination and Education Assistance Act of 1975 (ISDEAA), this part 
should advance the policy of

[[Page 43105]]

increasing tribal autonomy and discretion in program operation.
    (c) This part is designed to enable Indian tribes to participate in 
all contractible IRR and BIA Road Maintenance programs. The Secretary 
of the Interior will afford Indian tribes the flexibility, information, 
and discretion to design roads programs under self-determination 
contracts and self-governance agreements to meet the needs of their 
communities consistent with this part.
    (d) The Secretaries recognize that programs, functions, services, 
and activities, regardless of how they are administered, are an 
exercise of Indian tribes' self-determination and self-governance.
    (1) The tribe is responsible for managing the day-to-day operation 
of its contracted Federal programs, functions, services, and 
activities.
    (2) The tribe accepts responsibility and accountability to the 
beneficiaries under self-determination contracts and self-governance 
agreements for:
    (i) Use of the funds; and
    (ii) Satisfactory performance of all activities funded under the 
contract or agreement.
    (3) The Secretary will continue to discharge the trust 
responsibilities to protect and conserve the trust resources of tribes 
and the trust resources of individual Indians.
    (e) The Secretary should interpret Federal laws and regulations to 
facilitate including programs covered by this part in the government-
to-government agreements authorized under ISDEAA.
    (f) The administrative functions referenced in paragraph (a)(5) of 
this section are contractible without regard to the organizational 
level within the Department of the Interior that carries out these 
functions. Including IRR Program administrative functions under self-
determination contracts and self-governance agreements does not limit 
or reduce the funding for any program or service serving any other 
tribe.
    (g) The Secretary is not required to reduce funding for a tribe 
under these programs to make funds available to another tribe.
    (h) This part must be liberally construed for the benefit of tribes 
and to implement the Federal policy of self-determination and self-
governance.
    (i) Any ambiguities in this part must be construed in favor of the 
tribes so as to facilitate and enable the transfer of programs 
authorized by 23 U.S.C. 202 and title 25 U.S.C.


Sec.  170.3  When do other requirements apply to the IRR Program?

    IRR Program Policy and Guidance Manuals and directives apply to the 
IRR Program only if they are consistent with this part and 25 CFR parts 
900 and 1000. See 25 CFR part 900.5 for when a tribe must comply with 
other unpublished requirements.


Sec.  170.4  What is the effect of this part on existing tribal rights?

    This part does not:
    (a) Affect the sovereign immunity from suit enjoyed by tribes;
    (b) Terminate or reduce the trust responsibility of the United 
States to tribes or individual Indians;
    (c) Require a tribe to assume a program relating to the IRR 
Program; or
    (d) Impede awards by other agencies of the United States or a State 
to tribes to administer programs under any other law.


Sec.  170.5  What definitions apply to this part?

    AASHTO means the American Association of State Highway and 
Transportation Officials.
    Annual Funding Agreement means a negotiated agreement of the 
Secretary to fund, on an annual basis, the programs, functions, 
services, and activities transferred to a tribe under the Indian Self-
Determination and Education Assistance Act, as amended.
    Appeal means a request by a tribe or consortium for an 
administrative review of an adverse agency decision.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    BIADOT means the Bureau of Indian Affairs, Division of 
Transportation.
    BIA force account means the performance of work done by BIA 
employees.
    BIA Road System means the Bureau of Indian Affairs Road System 
under the IRR system. It includes those existing and proposed IRR's for 
which BIA has or plans to obtain legal right-of-way. BIA has the 
primary responsibility to improve and maintain the roads on this 
system.
    CFR means the United States Code of Federal Regulations.
    Construction means the supervising, inspecting, actual building, 
and incurrence of all costs incidental to the construction or 
reconstruction of an IRR transportation facility, as defined in 23 
U.S.C. 101. This includes bond costs and other related costs of bonds 
or other debt financing instruments. It also includes costs incurred by 
the State in performing Federal-aid project related audits that 
directly benefit the Federal-aid highway program. The term includes--
    (1) Locating, surveying, and mapping (including establishing 
temporary and permanent geodetic markers in accordance with 
specifications of the U.S. Geological Survey);
    (2) Resurfacing, restoration, and rehabilitation;
    (3) Acquiring rights-of-way;
    (4) Providing relocation assistance; acquiring replacement housing 
sites; and acquiring, rehabilitating, relocating, and constructing 
replacement housing;
    (5) Eliminating hazards of railway grade crossings;
    (6) Eliminating roadside obstacles;
    (7) Making improvements that facilitate and control traffic flow, 
such as grade separation of intersections, widening lanes, channelizing 
traffic, installing traffic control systems, and establishing passenger 
loading and unloading areas; and
    (8) Making capital improvements that directly facilitate an 
effective vehicle weight enforcement program, such as scales (fixed and 
portable), scale pits, scale installation, and scale houses.
    Construction contract means a fixed price or cost reimbursement 
self-determination contract for a construction project, except that 
such term does not include any contract--
    (1) That is limited to providing planning services and construction 
management services (or a combination of such services);
    (2) For the housing improvement program or roads maintenance 
program of the BIA administered by the Secretary of the Interior; or
    (3) For the health facility maintenance and improvement program 
administered by the Secretary of Health and Human Services.
    Consultation means government-to-government communication in a 
timely manner by all parties about a proposed or contemplated decision 
in order to:
    (1) Secure meaningful tribal input and involvement in the decision-
making process; and
    (2) Advise the tribe of the final decision and provide an 
explanation.
    Contract means a self-determination contract as defined in section 
4(j) of ISDEAA or a procurement document issued under Federal or tribal 
procurement acquisition regulations.
    Days means calendar days, except where the last day of any time 
period specified in this part falls on a Saturday, Sunday, or a Federal 
holiday, the period shall carry over to the next business day unless 
otherwise prohibited by law.
    Design means services performed by licensed design professionals 
related to preparing drawings, specifications, and other design 
submissions specified in the contract or agreement, as well as services 
provided by or for licensed design professionals during the bidding/
negotiating, construction, and operational phases of the project.
    DOI means the Department of the Interior.

[[Page 43106]]

    FHWA means the Federal Highway Administration of the Department of 
Transportation.
    FTA means the Federal Transit Administration of the Department of 
Transportation.
    Governmental subdivision of a tribe means a unit of a federally-
recognized tribe which is authorized to participate in an IRR Program 
activity on behalf of the tribe.
    Indian means a person who is a member of a Tribe or as otherwise 
defined in 25 U.S.C. 450b.
    Indian Reservation Road (IRR) means a public road that is located 
within or provides access to an Indian reservation or Indian trust 
land, or restricted Indian land that is not subject to fee title 
alienation without the approval of the Federal government, or Indian or 
Alaska Native Villages, groups, or communities in which Indians and 
Alaska Natives reside, whom the Secretary of the Interior has 
determined are eligible for services generally available to Indians 
under Federal laws specifically applicable to Indians.
    IRR Bridge Program means the program authorized under 23 U.S.C. 
202(d)(4) using IRR Program funds for the improvement of deficient IRR 
highway bridges.
    IRR Inventory means a comprehensive database of all transportation 
facilities eligible for IRR Program funding by tribe, reservation, BIA 
agency and region, Congressional district, State, and county. Other 
specific information collected and maintained under the IRR Program 
includes classification, route number, bridge number, current and 
future traffic volumes, maintenance responsibility, and ownership.
    IRR Program means a part of the Federal Lands Highway Program 
established in 23 U.S.C. 204 to address transportation needs of tribes.
    IRR Program construction funds means the pool of funds BIA 
distributes according to the Relative Need Distribution Factor.
    IRR Program funds means the funds covered in chapter 2 of title 23 
U.S.C. and the associated program management costs. These funds are 
used for:
    (1) Transportation planning, research, and engineering; and
    (2) Construction of highways, roads, parkways, or transit 
facilities within or providing access to Indian lands, communities, and 
Alaska Native villages.
    IRR Program management and oversight funds means those funds 
authorized by Congress to pay the cost of performing IRR Program 
management activities.
    IRR System means all the roads and bridges that comprise the IRR.
    IRR transportation facilities means public roads, bridges, drainage 
structures, culverts, ferry routes, marine terminals, transit 
facilities, boardwalks, pedestrian paths, trails, and their 
appurtenances, and other transportation facilities as designated by the 
tribe and the Secretary.
    IRR Transportation Improvement Program (IRRTIP) means a list 
developed by BIA of projects programmed for construction in the next 3 
to 5 years.
    ISDEAA means the Indian Self-Determination and Education Assistance 
Act of 1975, Public Law 93-638, as amended.
    Maintenance means the preservation of the entire highway, including 
surface, shoulders, roadsides, structures, and such traffic-control 
devices as are necessary for safe and efficient utilization of the 
highway.
    NBI means the national bridge inventory, which is the database of 
structural and appraisal data collected to fulfill the requirements of 
the National Bridge Inspection Standards, as defined in 23 CFR part 
650, subpart C. Each State and BIA must maintain an inventory of all 
bridges that are subject to the NBI standards and provide this data to 
the Federal Highway Administration (FHWA). The NBI is maintained and 
monitored by the FHWA Office of Bridge Technology.
    Office of Self-Governance (OSG) means the office within the Office 
of the Assistant Secretary--Indian Affairs, Department of the Interior, 
that is responsible for implementing and developing tribal self-
governance.
    Program means any program, function, service, activity, or portion 
thereof.
    Project Planning means project-related activities that precede the 
design phase of a transportation project. Examples of these activities 
are: Collecting data on traffic, accidents, or functional, safety or 
structural deficiencies; corridor studies; conceptual studies, 
environmental studies; geotechnical studies; archaeological studies; 
project scoping; public hearings; location analysis; preparing 
applications for permits and clearances; and meetings with facility 
owners and transportation officials.
    Proposed road means a road which does not currently exist and needs 
to be constructed.
    Public Authority means a Federal, State, county, town, or township, 
Indian tribe, municipal, or other local government or instrumentality 
with authority to finance, build, operate, or maintain toll or toll-
free facilities.
    Public road means any road or street under the jurisdiction of and 
maintained by a public authority and open to public travel.
    Real Property means any interest in land together with the 
improvements, structures, and fixtures and appurtenances.
    Regionally significant project means a project that modifies a 
facility that serves regional transportation needs and would normally 
be included in the modeling of a metropolitan area's transportation 
network. The term includes work on principal arterial highways and all 
fixed guideway transit facilities that offer a significant alternative 
to regional highway travel. (``Regional transportation needs'' includes 
access to and from the area outside of the region; major planned 
developments such as new retail malls, sports complexes, etc.; or 
transportation terminations, as well as most terminals themselves).
    Rehabilitation means the work required to restore the structural 
integrity of transportation facilities as well as work necessary to 
correct safety defects.
    Relocation means the adjustment of transportation facilities and 
utilities required by a highway project. It includes removing and 
reinstalling the facility, including necessary temporary facilities; 
acquiring necessary right-of-way on the new location; moving, 
rearranging or changing the type of existing facilities; and taking any 
necessary safety and protective measures. It also means constructing a 
replacement facility that is both functionally equivalent to the 
existing facility and necessary for continuous operation of the utility 
service, the project economy, or sequence of highway construction.
    Relocation Services means payment and assistance authorized by the 
Uniform Relocation and Real Property Acquisitions Policy Act, 42 U.S.C. 
4601 et seq., as amended.
    Rest area means an area or site established and maintained within 
or adjacent to the highway right-of-way or under public supervision or 
control for the convenience of the traveling public.
    Secretaries means the Secretary of the Interior and the Secretary 
of Transportation.
    Secretary means the Secretary of the Interior or her/his designee 
authorized to act on behalf of the Secretary.
    Secretary of Transportation means the Secretary of Transportation 
or a designee authorized to act on behalf of the Secretary.

[[Page 43107]]

    State transportation agency means that department, commission, 
board, or official of any State charged by its laws with the 
responsibility for highway construction. The term ``State'' would be 
considered equivalent to ``State transportation agency'' if the context 
so implies.
    STIP means Statewide Transportation Improvement Program. It is a 
financially constrained, multi-year list of transportation projects. 
The STIP is developed under 23 U.S.C. 134 and 135, and 49 U.S.C. 5303-
5305. The Secretary of Transportation reviews and approves the STIP for 
each State.
    Transit means services, equipment, and functions associated with 
the public movement of people served within a community or network of 
communities.
    Transportation planning means developing land use, economic 
development, traffic demand, public safety, health and social 
strategies to meet transportation current and future needs.
    Tribal transportation planning funds means funds referenced in 23 
U.S.C. 204(j).
    Tribe means any tribe, nation, band, pueblo, rancheria,colony, or 
community, including any Alaska Native village or regional or village 
corporation as defined or established under the Alaska Native Claims 
Settlement Act that is federally recognized by the U.S. government for 
special programs and services provided by the Secretary to Indians 
because of their status as Indians.
    TTIP means Tribal Transportation Improvement Program. It is a 
multi-year financially constrained list of proposed transportation 
projects developed by a tribe from the tribal priority list or the 
long-range transportation plan.
    U.S.C. means the United States Code.


Sec.  170.6  Information Collection.

    The information collection requirements contained in this part have 
been approved by the Office of Management and Budget under 44 U.S.C. et 
seq. and assigned clearance number 1076-0161. This information 
collection is specifically found in subparts C and D of this part and 
represent a total reporting burden to the public of 31,470 hours or an 
average of 56.5 hours per respondent. A Federal agency may not conduct 
or sponsor, and you are not required to respond to, a collection of 
information unless it displays a currently valid OMB control number. 
Comments and suggestions on the burden estimate or any other aspect of 
the form should be sent directly to the Office of Management and 
Budget; Attention: Interior Desk Officer; Washington, DC 20503; and a 
copy of the comments should be sent to the Information Collection 
Clearance Officer, Bureau of Indian Affairs, 1849 C Street, NW., 
Washington, DC 20240.

Subpart B--Indian Reservation Roads Program Policy and Eligibility

Consultation, Collaboration, Coordination


Sec.  170.100  What do the terms ``consultation, collaboration, and 
coordination'' mean?

    (a) Consultation means government-to-government communication in a 
timely manner by all parties about a proposed or contemplated decision 
in order to:
    (1) Secure meaningful tribal input and involvement in the decision-
making process; and
    (2) Advise the tribe of the final decision and provide an 
explanation.
    (b) Collaboration means that all parties involved in carrying out 
planning and project development work together in a timely manner to 
achieve a common goal or objective.
    (c) Coordination means that each party:
    (1) Shares and compares in a timely manner its transportation 
plans, programs, projects, and schedules with the related plans, 
programs, projects, and schedules of the other parties; and
    (2) Adjusts its plans, programs, projects, and schedules to 
optimize the efficient and consistent delivery of transportation 
projects and services.


Sec.  170.101  What is the IRR Program consultation and coordination 
policy?

    (a) The IRR Program's government-to-government consultation and 
coordination policy is to foster and improve communication, 
cooperation, and coordination among tribal, Federal, state, and local 
governments and other transportation organizations when undertaking the 
following, similar, or related activities:
    (1) Identifying high-accident locations and locations for improving 
both vehicle and pedestrian safety;
    (2) Developing State, metropolitan, regional, IRR, and tribal 
transportation improvement programs that impact tribal lands, 
communities, and members;
    (3) Developing short- and long-range transportation plans;
    (4) Developing IRR Program transportation projects;
    (5) Developing environmental mitigation measures necessary to 
protect and/or enhance Indian lands and the environment, and counteract 
the impacts of the projects;
    (6) Developing plans or projects to replace or rehabilitate 
deficient IRR bridges;
    (7) Developing plans or projects for disaster and emergency relief 
response and the repair of eligible damaged IRR transportation 
facilities;
    (8) Assisting in the development of State and tribal agreements 
related to the IRR Program;
    (9) Developing and improving transit systems serving Indian lands 
and communities; and
    (10) Assisting in the submission of discretionary grant 
applications for State and Federal funding for IRR transportation 
facilities.
    (b) Tribes and State and Federal Government agencies may enter into 
intergovernmental Memoranda of Agreement (MOA) to streamline and 
facilitate consultation, collaboration, and coordination.


Sec.  170.102  How do the Departments consult, collaborate, and 
coordinate with tribal governments?

    The Department of the Interior and the Department of Transportation 
operate within a government-to-government relationship with federally 
recognized tribes. As a critical element of this relationship, these 
agencies should assess the impact of Federal transportation policies, 
plans, projects, and programs on tribal rights and interests to ensure 
that these rights and concerns are appropriately considered.


Sec.  170.103  What goals and principles guide the Secretaries?

    When undertaking transportation activities affecting tribes, the 
Secretaries should, to the maximum extent permitted by law:
    (a) Establish regular and meaningful consultation and collaboration 
with affected tribal governments, including facilitating the direct 
involvement of tribal governments in short- and long-range Federal 
transportation planning efforts;
    (b) Promote the rights of tribal governments to govern their own 
internal affairs;
    (c) Promote the rights of tribal governments to receive direct 
transportation services from the Federal Government or to enter into 
agreements to directly operate any tribally related transportation 
programs serving tribal members;
    (d) Ensure the continuation of the trust responsibility of the 
United States to tribes and Indian individuals;
    (e) Reduce the imposition of unfunded mandates upon tribal 
governments;

[[Page 43108]]

    (f) Encourage flexibility and innovation in the implementation of 
the IRR Program;
    (g) Reduce, streamline, and eliminate unnecessarily restrictive 
transportation policies, guidelines, or procedures;
    (h) Ensure that tribal rights and interests are appropriately 
considered during program development;
    (i) Ensure that the IRR Program is implemented consistent with 
tribal sovereignty and the government-to-government relationship; and
    (j) Consult with, and solicit the participation of, tribes in the 
development of the annual BIA budget proposals.


Sec.  170.104  Must the Secretary consult with tribal governments 
before obligating IRR Program funds?

    Yes. Before obligating IRR program funds on any project that is for 
direct service activities, the Secretary must consult with the affected 
tribe to determine the tribal preferences concerning the project. The 
Secretary must provide information in accordance with Sec.  170.600 
within 30 days of the Notice of Availability of Funds publication in 
the Federal Register.


Sec.  170.105  Are funds available for consultation, collaboration, and 
coordination activities?

    To fund consultation, collaboration, and coordination of IRR 
Program activities, tribes may use:
    (a) The tribes' IRR Program allocations;
    (b) Tribal Priority Allocation (TPA) funds;
    (c) Administration for Native Americans (ANA) funds;
    (d) Economic Development Administration (EDA) funds;
    (e) United States Department of Agriculture (USDA) Rural 
Development funds;
    (f) Community Development Block Grant (CDBG) funds; Indian Housing 
Block Grant (IHBG) funds;
    (g) Indian Health Service Tribal Management Grant (IHSTMG) funds;
    (h) General funds of the tribal government; and
    (i) Any other funds available for the purpose of consultation, 
collaboration, and coordination activities.


Sec.  170.106  When must State governments consult with tribes?

    Each State must develop the State Transportation Improvement 
Program (STIP) in consultation with tribes and BIA in those areas under 
Indian tribal jurisdiction. This includes providing for a fully 
coordinated transportation planning process that coordinates 
transportation planning efforts carried out by the State with 
transportation planning efforts carried out by tribes. The statewide 
and metropolitan planning organization requirements are in 23 U.S.C. 
134 and 135. Regulations can be found at 23 CFR part 450.


Sec.  170.107  Should planning organizations and local governments 
consult with tribes when planning for transportation projects?

    Yes. The Department's policy is to foster and improve 
communication, cooperation, and coordination among metropolitan 
planning organizations (MPOs), regional planning organizations (RPOs), 
local governments, municipal governments, and tribes on transportation 
matters of common concern. Accordingly, planning organizations and 
local governments should consult with tribal governments when planning 
for transportation projects.


Sec.  170.108  Should Indian tribes and BIA consult with States' 
planning organizations and local governments in the development of 
their IRRTIP?

    Yes.
    (a) All regionally significant IRR Program projects must be:
    (1) Developed in cooperation with State and metropolitan planning 
organizations; and
    (2) Included in appropriate Federal Lands Highway Program 
transportation improvement programs for inclusion in state and 
metropolitan plans.
    (b) BIA and tribes are encouraged to consult with States, 
metropolitan and regional planning organizations, and local and 
municipal governments, on transportation matters of common concern.


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

    In administering the IRR Program, the Secretaries ensure that 
nondiscrimination and environmental justice principles are integral 
program elements. The Secretaries consult with tribes early in the 
program development process to identify potential discrimination and to 
recommend corrective actions to avoid disproportionately high and 
adverse effects on tribes and Native American populations.


Sec.  170.110  How can State and local governments prevent 
discrimination or adverse impacts?

    (a) Under 23 U.S.C. 134 and 135, and 23 CFR part 450, State and 
local government officials should consult and work with tribes early in 
the development of programs to:
    (1) Identify potential discrimination; and
    (2) Recommend corrective actions to avoid disproportionately high 
and adverse effects on tribes and Native American populations.
    (b) Examples of adverse effects include, but are not limited to:
    (1) Impeding access to tribal communities or activities;
    (2) Creating excessive access to culturally or religiously 
sensitive areas;
    (3) Negatively affecting natural resources, trust resources, tribal 
businesses, religious, and cultural sites;
    (4) Harming indigenous plants and animals; and
    (5) Impairing the ability of tribal members to engage in 
commercial, cultural, and religious activities.


Sec.  170.111  What can a tribe do if discrimination or adverse impacts 
occur?

    If discrimination or adverse impacts occur, a tribe should take the 
following steps in the order listed:
    (a) Take reasonable steps to resolve the problem directly with the 
State or local government involved;
    (b) Contact BIA, FHWA, or the Federal Transit Authority (FTA), as 
appropriate, to report the problem and seek assistance in resolving the 
problem.

Eligible Uses if IRR Program Funds


Sec.  170.115  What activities may be funded with IRR Program funds?

    (a) IRR Program funds may be used:
    (1) For all of the items listed in appendix A to this subpart;
    (2) For other purposes identified in this part; or
    (3) For other purposes recommended by the IRR Program Coordinating 
Committee under the procedures in Appendix A to Subpart B (35) and 
Sec.  170.156 and approved by FHWA or BIA pursuant to Sec.  170.117.
    (b) Each of the items listed in Appendix A must be interpreted in a 
manner that permits, rather than prohibits, a proposed use of funds.


Sec.  170.116  What activities are not eligible for IRR Program 
funding?

    IRR Program funds cannot be used for any of the following:
    (a) Routine maintenance work such as: grading shoulders and 
ditches; cleaning culverts; snow removal, roadside mowing, normal sign 
repair and replacement, painting roadway structures, and the 
maintaining, cleaning, or repair of bridge appurtenances;
    (b) Structures and erosion protection unrelated to transportation 
and roadways;
    (c) General reservation planning not involving transportation;

[[Page 43109]]

    (d) Landscaping and irrigation systems not involving transportation 
programs and projects;
    (e) Work performed on projects that are not included on an FHWA-
approved IRR Transportation Improvement Program (TIP), unless otherwise 
authorized by the Secretary of the Interior and the Secretary of 
Transportation;
    (f) Purchase of equipment unless authorized by Federal law or in 
this part; or
    (g) Condemnation of land for recreational trails.


Sec.  170.117  How can a tribe determine whether a new use of funds is 
allowable?

    (a) A tribe that proposes new uses of IRR Program funds must ask 
BIA in writing whether the proposed use is eligible under Federal law. 
The tribe must also provide a copy of its inquiry to FHWA.
    (1) In cases involving eligibility questions that refer to 25 
U.S.C., BIA will determine whether the new proposed use of IRR Program 
funds is allowable and provide a written response to the requesting 
tribe within 45 days of receiving the written inquiry. Tribes may 
appeal a denial of a proposed use by BIA under 25 CFR part 2. The 
address is: Department of the Interior, BIA, Division of 
Transportation, 1849 C Street, NW., MS 4058-MIB, Washington, DC 20240.
    (2) In cases involving eligibility questions that refer to the IRR 
Program or 23 U.S.C., BIA will refer an inquiry to FHWA for decision. 
FHWA must provide a written response to the requesting tribe within 45 
days of receiving the written inquiry from the tribe. Tribes may appeal 
denials of a proposed use by the FHWA to: FHWA, 400 7th St., SW., HFL-
1, Washington, DC 20590.
    (b) To the extent practical, the deciding agency must consult with 
the IRR Program Coordinating Committee before denying a request. BIA 
and FHWA will send copies of all eligibility determinations to the IRR 
Program Coordinating Committee and BIA Regional offices.
    (c) If either BIA or FHWA fails to issue the requesting tribe a 
timely response to the eligibility inquiry, the proposed use will be 
deemed to be allowable for that specific project.

Use of IRR and Cultural Access Roads


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

    Indian Reservation Roads (IRRs) must be open and available for 
public use. However, the public authority having jurisdiction over 
these roads may:
    (a) Restrict road use or close roads temporarily when required for 
public safety, fire prevention or suppression, fish or game protection, 
low load capacity bridges, prevention of damage to unstable roadbeds, 
or as contained in Sec. Sec.  170.122 and 170.813;
    (b) Conduct engineering and traffic analysis to determine maximum 
speed limits, maximum vehicular size, and weight limits, and identify 
needed traffic control devices; and
    (c) Erect, maintain, and enforce compliance with signs and pavement 
markings.


Sec.  170.121  What is a cultural access road?

    (a) A cultural access road is a public road that provides access to 
sites for cultural purposes as defined by individual tribal traditions, 
which may include, for example:
    (1) Sacred and medicinal sites;
    (2) Gathering medicines or materials such as grasses for basket 
weaving; or
    (3) Other traditional activities, including, but not limited to, 
subsistence hunting, fishing and gathering.
    (b) A tribal government may unilaterally designate a tribal road as 
a cultural access road. A cultural access road designation is an 
entirely voluntary and internal decision made by the tribe to help it 
and other public authorities manage, protect, and preserve access to 
locations that have cultural significance.
    (c) In order for a tribal government to designate a non-tribal road 
as a cultural access road, it must enter into an agreement with the 
public authority having jurisdiction over the road.
    (d) Cultural access roads may be included in the IRR Inventory if 
they meet the definition of an IRR.


Sec.  170.122  Can a tribe close a cultural access road?

    (a) A tribe with jurisdiction over a cultural access road can close 
it. The tribe can do this:
    (1) During periods when the tribe or tribal members are involved in 
cultural activities; and
    (2) In order to protect the health and safety of the tribal members 
or the general public.
    (b) Cultural access roads designated through an agreement with a 
public authority may only be closed according to the provisions of the 
agreement. See Sec.  170.121(c).

Seasonal Transportation Routes


Sec.  170.123  What are seasonal transportation routes?

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


Sec.  170.124  Does the IRR Program cover seasonal transportation 
routes?

    Yes. IRR Program funds can be used to build seasonal transportation 
routes and a tribe may request that BIA include seasonal transportation 
routes in the IRR Inventory.
    (a) Standards for seasonal transportation routes are found in the 
design standards identified in appendix B to subpart D. A tribe can 
also develop or adopt standards that are equal to or exceed these 
standards.
    (b) Construction of a seasonal transportation route requires a 
right-of-way or use permit.

IRR Housing Access Roads


Sec.  170.127  What terms apply to access roads?

    (a) IRR housing access road means a public road on the IRR System 
that provides access to a housing cluster.
    (b) IRR housing street means a public road on the IRR System that 
provides access to adjacent homes within a housing cluster.
    (c) Housing cluster means three or more existing or proposed 
housing units.


Sec.  170.128  Are housing access roads and housing streets eligible 
for IRR Program funding?

    Yes. IRR housing access roads and housing streets on public rights-
of-way are eligible for construction, reconstruction, and 
rehabilitation funding under the IRR Program. Tribes, following the 
transportation planning process as required in subpart D, may include 
housing access roads and housing street projects on the Tribal 
Transportation Improvement Program (TTIP). IRR Program funds are 
available after the projects are listed on the FHWA-approved IRRTIP.

Toll, Ferry and Airport Facilities


Sec.  170.130  How can tribes use Federal highway funds for toll and 
ferry facilities?

    (a) A tribe can use Federal-aid highway funds, including IRR 
Program funds, to study, design, construct, and operate toll highways, 
bridges, and tunnels, as well as ferry boats and ferry terminal 
facilities. The following table shows how a tribe can initiate 
construction of these facilities.

[[Page 43110]]



------------------------------------------------------------------------
  To initiate construction of a . . .           A tribe must . . .
------------------------------------------------------------------------
(1) Toll highway, bridge, or tunnel....  (i) Meet and follow the
                                          requirements set forth in 23
                                          U.S.C. 129; and
                                         (ii) If IRR Program funds are
                                          used, enter into a self-tunnel
                                          governance agreement or self-
                                          determination contract with
                                          the Secretary of the Interior.
(2) Ferry boat or ferry terminal.......  Meet and follow the
                                          requirements set forth in 23
                                          U.S.C. 129(c).
------------------------------------------------------------------------

    (b) A tribe can use IRR Program funds to fund 100 percent of the 
conversion or construction of a toll facility.
    (c) If a tribe obtains non-IRR Program Federal funding for the 
conversion or construction of a toll facility, these funds will cover a 
maximum of 80 percent of the project cost. In this case, the tribe may 
use IRR Program funds for the required 20 percent local match.


Sec.  170.131  How can a tribe find out more about designing and 
operating a toll facility?

    Information on designing and operating a toll highway, bridge or 
tunnel is available from the International Bridge, Tunnel and Turnpike 
Association. The Association publishes a variety of reports, 
statistics, and analyses. The Web site is located at http://www.ibtta.org. Information is also available from FHWA.


Sec.  170.132  When can a tribe use IRR Program funds for airport 
facilities?

    (a) A tribe can use IRR Program funds for construction of airport 
and heliport access roads, if the access roads are open to the public.
    (b) A tribe cannot use IRR Program funds to construct or improve 
runways, airports or heliports. Funds for these uses are available 
under the Airport Improvement Program (AIP) from the Federal Aviation 
Administration (FAA). (See FAA Advisory Circular No. 150/5370-10A.)

Recreation, Tourism and Trails


Sec.  170.135  Can a tribe use Federal funds for its recreation, 
tourism, and trails program?

    Yes. A tribe, tribal organization, tribal consortium, or BIA may 
use IRR Program funds for recreation, tourism, and trails programs if 
the programs are included in the IRRTIP. Additionally, the following 
Federal programs for recreation, tourism, and trails are possible 
sources of Federal funding:
    (a) IRR Program (23 U.S.C. 204);
    (b) Surface Transportation Program--Transportation Enhancement (23 
U.S.C. 133);
    (c) National Scenic Byway Program (23 U.S.C. 162);
    (d) Recreational Trails Program (23 U.S.C. 206);
    (e) National Highway System (23 U.S.C. 104);
    (f) Public Lands Discretionary Program (23 U.S.C. 204);
    (g) Other funding from other Federal departments; and
    (h) Other funding that Congress may authorize and appropriate.


Sec.  170.136  How can a tribe obtain funds?

    (a) To receive funding for programs that serve recreation, tourism, 
and trails' goals, a tribe should:
    (1) Identify a program meeting the eligibility guidelines for the 
funds and have it ready for development; and
    (2) Have a viable project ready for improvement or construction, 
including necessary permits.
    (b) FHWA provides Federal funds to the States for recreation, 
tourism, and trails under 23 U.S.C. 104, 133, 162, 204, and 206. States 
solicit proposals from tribes and local governments in their 
transportation planning process. A tribe may ask:
    (1) To administer these programs under the State's locally 
administered project program; or
    (2) That for projects that are otherwise contractible under Public 
Law 93-638 (25 U.S.C. 450 et seq.), that the State return the funds to 
FHWA and have them transferred to BIA for tribal self-determination 
contracts or self-governance agreements under ISDEAA.
    (c) Congress provides funds under 23 U.S.C. 205 and 214 for 
activities for Federal agencies. A tribe can contract with all agencies 
within the Department of the Interior under ISDEAA for this work.
    (d) In order to use National Scenic Byway funds, the project must 
be on a road designated as a State or Federal scenic byway.
    (e) In order to expend non-IRR Program Federal funds for its 
recreation, tourism, and trails programs, a tribe must ensure that the 
project is on an approved TIP or STIP.


Sec.  170.137  What types of activities can a recreation, tourism, and 
trails program include?

    (a) The following are examples of activities that tribes and tribal 
organizations may perform under a recreation, tourism, and trails 
program:
    (1) Transportation planning for tourism and recreation travel;
    (2) Adjacent vehicle parking areas;
    (3) Development of tourist information and interpretative signs;
    (4) Provision for non-motorized trail activities including 
pedestrians and bicycles;
    (5) Provision for motorized trail activities including all terrain 
vehicles, motorcycles, snowmobiles, etc.;
    (6) Construction improvements that enhance and promote safe travel 
on trails;
    (7) Safety and educational activities;
    (8) Maintenance and restoration of existing recreational trails;
    (9) Development and rehabilitation of trailside and trailhead 
facilities and trail linkage for recreational trails;
    (10) Purchase and lease of recreational trail construction and 
maintenance equipment;
    (11) Safety considerations for trail intersections;
    (12) Landscaping and scenic enhancement (see 23 U.S.C. 319);
    (13) Bicycle Transportation and pedestrian walkways (see 23 U.S.C. 
217); and
    (14) Trail access roads.
    (b) The items listed in paragraph (a) of this section are not the 
only activities that are eligible for recreation, tourism, and trails 
funding. The funding criteria may vary with the specific requirements 
of the programs.
    (c) Tribes may use IRR Program funds for any activity that is 
eligible for Federal funding under any provision of title 23 U.S.C.


Sec.  170.138  Can roads be built in roadless and wild areas?

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

Highway Safety Functions


Sec.  170.141  What Federal funds are available for a tribe's highway 
safety activities?

    Federal funds available for a tribe's highway safety activities 
include, but are not limited to, the following which may be amended, 
repealed, or added to:
    (a) The tribes' IRR Program allocations under 23 U.S.C. 204;
    (b) Highway Safety Program funds under 23 U.S.C. 402;
    (c) Occupant protection program funds under 23 U.S.C. 405;
    (d) Alcohol traffic safety program funds under 23 U.S.C. 408;

[[Page 43111]]

    (e) Alcohol-impaired driver countermeasures under 23 U.S.C. 410;
    (f) Funding for highway safety activities from the U.S. Department 
of Health and Human Services (HHS);
    (g) Indian Highway Safety Program 25 CFR 181; and
    (h) Other funding that Congress may authorize and appropriate.


Sec.  170.142  How can tribes obtain funds to perform highway safety 
projects?

    There are two methods to obtain National Highway Traffic Safety 
Administration (NHTSA) and other FHWA safety funds for highway safety 
projects:
    (a) FHWA provides safety funds to BIA under 23 U.S.C. 402. BIA 
annually solicits proposals from tribes for use of these funds. 
Proposals are processed under 25 CFR part 181. Tribes may obtain a 
contract or agreement under ISDEAA for these projects.
    (b) FHWA provides funds to the States under 23 U.S.C. 402, 405, 
408, and 410. States annually solicit proposals from tribes and local 
governments. Tribes may request:
    (1) To administer these programs under the State's locally 
administered project program; or
    (2) That for projects that are otherwise contractible under Public 
Law 93-638 (25 U.S.C. 450 et seq.), that the State return the funds to 
FHWA and have them transferred to BIA for tribal self-determination 
contracts or self-governance agreements under ISDEAA.


Sec.  170.143  How can IRR Program funds be used for highway safety?

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


Sec.  170.144  What are eligible highway safety projects?

    The following are examples of activities that can be considered as 
highway safety projects:
    (a) Highway alignment improvement;
    (b) Bridge widening;
    (c) Pedestrian paths/sidewalks and bus shelters;
    (d) Installation and replacement of signs when designated as, or 
made part of, a highway safety project;
    (e) Construction improvements that enhance and promote safe travel 
on IRRs, such as guardrail construction and traffic markings;
    (f) Development of a safety management system;
    (g) Education and outreach highway safety programs, such as use of 
child safety seats, defensive driving, and Mothers Against Drunk 
Drivers;
    (h) Development of a highway safety plan designed to reduce traffic 
accidents and deaths, injuries, and property damage;
    (i) Collecting data on traffic-related deaths, injuries and 
accidents;
    (j) Impaired driver initiatives;
    (k) Child safety seat programs; and
    (l) Purchasing necessary specific traffic enforcement equipment, 
such as radar equipment, breathalyser, video cameras.


Sec.  170.145  Are other funds available for a tribe's highway safety 
efforts?

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

Transit Facilities


Sec.  170.148  What is a tribal transit program?

    A tribal transit program is the planning, administration, 
acquisition, and operation and maintenance of a system associated with 
the public movement of people served within a community or network of 
communities on or near Indian reservations, lands, villages, 
communities, and pueblos.


Sec.  170.149  How do tribes identify transit needs?

    Tribes identify transit needs during the tribal transportation 
planning process (see subpart D). Transit projects using IRR Program 
funds must be included in the FHWA-approved IRRTIP.


Sec.  170.150  What Federal funds are available for a tribe's transit 
program?

    Title 23 U.S.C. authorizes the use of IRR Program funds for transit 
facilities as defined in this part. Additionally, there are many 
sources of Federal funds that may help support tribal transit programs. 
These include the Federal programs listed in this section. Note that 
each program has its own terms and conditions of assistance. For 
further information on these programs and their use for transit, 
contact the FTA Regional Transit Assistance Program (RTAP) National 
Transit Resource Center at http://www.ctaa.org/ntrc.
    (a) U.S. Department of Agriculture (USDA): community facilities 
loans; rural development loans; business and industrial loans; rural 
enterprise grants; commerce, public works and economic development 
grants; and economic adjustment assistance.
    (b) U.S. Department of Housing and Urban Development (HUD): 
community development block grants, supportive housing, tribal housing 
loan guarantees, resident opportunity and support services.
    (c) U.S. Department of Labor: Native American employment and 
training, welfare-to-work grants.
    (d) DOT: Welfare-to-Work, Indian Reservation Roads Program, 
transportation and community and systems preservation, Federal transit 
capital improvement grants, public transportation for non-urbanized 
areas, capital assistance for elderly and disabilities transportation, 
education, and Even Start.
    (e) HHS: programs for Native American elders, community service 
block grants, job opportunities for low-income individuals, Head Start 
(capital or operating), administration for Native Americans programs, 
Medicaid, HIV Care Grants, Healthy Start, and the Indian Health 
Service.


Sec.  170.151  May a tribe or BIA use IRR Program funds as matching 
funds?

    (a) A tribe may use 23 U.S.C. 204 IRR Program funds provided under 
a self-determination contract or self-governance agreement to meet 
matching or cost participation requirements for any Federal or non-
Federal transit grant or program.
    (b) BIA may use 23 U.S.C. 204 IRR Program funds to pay local 
matching funds for transit facilities and transit activities funded 
under 23 U.S.C. 104.


Sec.  170.152  What transit facilities and activities are eligible for 
IRR Program funding?

    Transit facilities and activities eligible for IRR Program funding 
include, but are not limited to:
    (a) Acquiring, constructing, supervising or inspecting new, used or 
refurbished equipment, buildings, facilities, buses, vans, water craft, 
and other vehicles for use in mass transportation;
    (b) Transit-related intelligent transportation systems;
    (c) Rehabilitating, remanufacturing, and overhauling a transit 
vehicle;
    (d) Preventive maintenance;
    (e) Leasing transit vehicles, equipment, buildings, and facilities 
for use in mass transportation;
    (f) Third-party contracts for otherwise eligible transit facilities 
and activities;
    (g) Mass transportation improvements that enhance economic and 
community development, such as bus shelters in shopping centers, 
parking lots, pedestrian improvements, and support facilities that 
incorporate other community services;
    (h) Passenger shelters, bus stop signs, and similar passenger 
amenities;

[[Page 43112]]

    (i) Introduction of new mass transportation technology;
    (j) Provision of fixed route, demand response services, and non-
fixed route paratransit transportation services (excluding operating 
costs) to enhance access for persons with disabilities;
    (k) Radio and communication equipment to support tribal transit 
programs; and
    (l) Transit capital project activities authorized by 49 U.S.C. 5302 
(a)(1).

IRR Program Coordinating Committee


Sec.  170.155  What is the IRR Program Coordinating Committee?

    (a) Under this part, the Secretaries will establish an IRR Program 
Coordinating Committee that:
    (1) Provides input and recommendations to BIA and FHWA in 
developing IRR Program policies and procedures; and
    (2) Supplements government-to-government consultation by 
coordinating with and obtaining input from tribes, BIA, and FHWA.
    (b) The Committee consists of 12 tribal regional representatives 
(one from each BIA Region) and two non-voting Federal representatives 
(FHWA and BIA). The Secretary of the Interior will select one alternate 
tribal member from each BIA Region to attend committee meetings in the 
absence of the regional representative.
    (c) The Secretary must select regional tribal representatives and 
alternates from nominees officially selected by the region's tribes.
    (1) To the extent possible, the Secretary must make the selection 
so that there is representation from a broad cross-section of large, 
medium, and small tribes.
    (2) Each tribal representative must be a tribal governmental 
official or employee with authority to act for the tribal government.
    (d) For purposes of continuity, the Secretary will appoint the 
initial tribal representative and alternate from each BIA region to 
either a 1-, 2-, or 3-year term so that only one-third of the tribal 
representatives and alternates change every year. Thereafter, all 
appointments must be for a term of 3 years.
    (e) The Secretary of the Interior will provide guidance regarding 
the replacement of representatives should the need arise.


Sec.  170.156  What are the IRR Program Coordinating Committee's 
responsibilities?

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


Sec.  170.157  What is the IRR Program Coordinating Committee's role in 
the funding process?

    The Committee's role is to provide input and recommendations to BIA 
and FHWA regarding:
    (a) New IRR Inventory Data Format and Form;
    (b) Simplified Cost to Construct (CTC) Methodology (including 
formula calculations, formula program and design, and bid tab 
methodology);
    (c) Cost Elements;
    (d) Over-Design Issues;
    (e) Inflation Impacts on $1 Million Cap for IRRHPP and Emergency 
Projects (including the IRRHPP Ranking System and emergency/disaster 
expenditures report); and
    (f) The impact of including funded but non-constructed projects in 
the CTC calculation.


Sec.  170.158  How does the IRR Program Coordinating Committee conduct 
business?

    The Committee holds at least two meetings a year. Additional 
Committee meetings may be called with the consent of one-third of the 
Committee members or by BIA or FHWA. The Committee conducts business at 
its meetings as follows:
    (a) A quorum consists of eight Committee members of which a 
majority must be tribal committee members.
    (b) The Committee will operate by consensus or majority vote, as 
determined by the Committee in its protocols.
    (c) Any Committee member can submit an agenda item to the Chair.
    (d) The Committee will work through a committee-approved annual 
work plan and budget.
    (e) Annually, the Committee must elect from among the Committee 
membership a Chair, a Vice-Chair, and other officers. These officers 
will be responsible for preparing for and conducting Committee meetings 
and summarizing meeting results. These officers will also have other 
duties that the Committee may prescribe.
    (f) The Committee must keep the Secretary and the tribes informed 
through an annual accomplishment report provided within 90 days after 
the end of each fiscal year.
    (g) The Committee's budget will be funded through the IRR Program 
management and oversight funds, not to exceed $150,000 annually.

Indian Local Technical Assistance Program


Sec.  170.161  What is the Indian Local Technical Assistance Program?

    The Indian Local Technical Assistance Program (Indian LTAP) is 
authorized under 23 U.S.C. 504(b), and Sec. Sec.  170.161 through 
170.176 are provided for information only. The Program assists tribal 
governments and other IRR Program participants in extending their 
technical capabilities by providing them greater access to 
transportation technology, training, and research opportunities.


Sec.  170.162  How is the Indian LTAP funded?

    FHWA uses Highway Trust Funds to fund the Indian LTAP. BIA may use 
IRR Program management and oversight funds for Indian LTAP centers. 
These funds may be used to operate Indian LTAP centers and to develop 
training materials and products for these centers. The Indian LTAP 
centers should apply for supplemental funding from other sources to 
accommodate their needs.


Sec.  170.163  How are Indian LTAP recipients selected?

    (a) FHWA announces Indian LTAP grant, cooperative agreement, and 
contracting opportunities in the Federal Register. The announcements 
state that tribal governments, a consortium of tribal governments, 
State transportation departments, or universities are eligible for 
these awards; indicate the funds available; and provide eligibility 
criteria.
    (b) FHWA sends the information in paragraph (a) of this section to 
BIA for distribution to tribal governments and consortia. BIA must 
provide written notice to tribal governments and consortia.
    (c) A selection committee of Federal and tribal representatives 
(see Sec.  170.164) reviews the proposals of eligible applicants and 
recommends award recipients. FHWA selects and notifies

[[Page 43113]]

award recipients consistent with applicable law.


Sec.  170.164  How are tribal representatives nominated and chosen for 
the selection committee?

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


Sec.  170.165  May a tribe enter into a contract or agreement for 
Indian LTAP funds?

    Yes. If selected for an award as an Indian LTAP Center, a tribe 
will enter into a cooperative agreement with the FHWA and be subject to 
the guidelines of the agreement.


Sec.  170.166  What services do Indian LTAP centers provide?

    (a) Indian LTAP centers provide transportation technology transfer 
services, including education, training, technical assistance and 
related support services to tribal governments and IRR Program 
participants. Indian LTAPs will:
    (1) Develop and expand tribal expertise in road and transportation 
areas;
    (2) Improve IRR Program performance;
    (3) Enhance tribal transportation planning, project selection, 
transit and freight programs;
    (4) Develop transportation training and technical resource 
materials and present workshops;
    (5) Improve tribal tourism and recreational travel programs;
    (6) Help tribes deal more effectively with transportation-related 
problems by developing and sharing tribal transportation technology and 
traffic safety systems and information with other transportation 
agencies;
    (7) Operate Indian technical centers in cooperation with State 
transportation departments and universities;
    (8) Provide technical assistance on transportation technology and 
enhance new technology implementation in cooperation with the private 
sector;
    (9) Develop educational programs to encourage and motivate interest 
in transportation careers among Native American students; and
    (10) Act as information clearinghouses for tribal governments and 
Indian-owned businesses on transportation-related topics.
    (b) Unless otherwise stated in an Indian LTAP agreement, an Indian 
technical assistance program center must, at a minimum:
    (1) Maintain a current mailing list including, at a minimum, each 
tribe and IRR Program participant within the service area;
    (2) Publish a quarterly newsletter and maintain a Web site;
    (3) Conduct or coordinate 10 workshops per year;
    (4) Maintain a library of technical publications and video tapes;
    (5) Provide technical assistance to IRR Program participants;
    (6) Hold two advisory committee meetings a year;
    (7) Develop a yearly action plan in consultation with the advisory 
committee;
    (8) Coordinate with State LTAPs, other Indian technical centers, 
Rural Technical Assistance Program (RTAP) centers, tribal governments, 
and local planning and transportation agencies to share and exchange 
publications, videotapes, training material, and conduct joint 
workshops;
    (9) Consult with tribes and IRR Program participants concerning 
technical assistance and training desired; and
    (10) Prepare an annual report and distribute this report to service 
area tribes.


Sec.  170.167  How does a tribe obtain services from an Indian LTAP 
center?

    A tribe that wants to obtain services should contact the Indian 
LTAP center serving its service area or its BIA regional road engineer. 
Information about the centers and the services provided can be found on 
the World Wide Web at the following address: http://www.ltap.org.


Sec.  170.168  Do Indian LTAP centers offer services similar to those 
of State LTAPs?

    Yes. However, Indian LTAP centers are primarily responsible for 
increasing the capacity of tribal governments to administer 
transportation programs. State LTAPs also provide services to local and 
rural governments, including tribal governments. Indian LTAP centers 
should coordinate education and training opportunities with State LTAP 
centers to maximize resources.


Sec.  170.169  What can a tribe do if Indian LTAP services are 
unsatisfactory?

    A tribal government can address concerns over quality of services 
to the Indian LTAP Center Director, FHWA, and BIA. If the center does 
not adequately address these concerns in writing within 30 calendar 
days, the tribal government may request any or all of the following:
    (a) A special meeting with the Center's Director and staff to 
address the concern;
    (b) A review of the Center's performance by FHWA and BIA or;
    (c) Services from other Indian LTAP centers.


Sec.  170.170  How are Indian LTAP centers managed?

    (a) Each Indian LTAP center is managed by its Center Director and 
staff, with the advice of its technical panel under the Indian LTAP 
agreements. FHWA, BIA, and tribes review the performance of the Indian 
LTAP centers.
    (b) Each Indian LTAP center has a technical panel consisting of one 
BIA Regional Road Engineer, one FHWA representative, one state DOT 
representative, and at least five tribal representatives from the 
service area. The technical panel may, among other activities:
    (1) Recommend center policies;
    (2) Review and approve the annual action plan for submission to 
FHWA for approval;
    (3) Provide direction on the areas of technical assistance and 
training;
    (4) Review and approve the annual report for submission to FHWA for 
approval;
    (5) Develop recommendations for improving center operation services 
and budgets; and
    (6) Assist in developing goals and plans for obtaining or using 
supplemental funding.
    (c) The technical panel must meet at least twice a year. Tribal 
representatives may request IRR Program funding to cover the cost of 
participating in these committee meetings.


Sec.  170.171  How are tribal advisory technical panel members 
selected?

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

Indian LTAP-Sponsored Education and Training Opportunities


Sec.  170.175  What Indian LTAP-sponsored transportation training and 
educational opportunities exist?

    There are many programs and sources of funding that provide tribal 
transportation training and education opportunities. Each program has 
its own terms and conditions of assistance. For

[[Page 43114]]

further information on these programs and their use for tribal 
transportation education and training opportunities, contact the 
regional Indian LTAP center or BIA regional road engineer. Appendix B 
to this subpart contains a list of programs and funding sources.


Sec.  170.176  Where can tribes get scholarships and tuition for Indian 
LTAP-sponsored education and training?

    Tribes can get tuition and scholarship assistance for Indian LTAP-
sponsored education and training from the following sources:
    (a) Indian LTAP centers;
    (b) BIA-appropriated funds (for approved training); and
    (c) IRR Program funds (for education and training opportunities and 
technical assistance programs related to developing skills for 
performing IRR Program activities).

Appendix A to Subpart B--Allowable Uses of IRR Program Funds

    A. IRR Program funds can be used for the following planning and 
design activities:
    1. Planning and design of IRR transit facilities eligible for 
IRR construction funding.
    2. Planning and design of IRR roads and bridges.
    3. Planning and design of transit facilities that provide access 
to or are located within an Indian reservation or community.
    4. Transportation planning activities, including planning for 
tourism and recreational travel.
    5. Development, establishment, and implementation of tribal 
transportation management systems such as safety, bridge, pavement, 
and congestion management.
    6. Tribal transportation plans and transportation improvement 
programs (TIPS).
    7. Coordinated technology implementation program (CTIP) 
projects.
    8. Traffic engineering and studies.
    9. Identification and evaluation of accident prone locations.
    10. Tribal transportation standards.
    11. Preliminary engineering studies.
    12. Interagency program/project formulation, coordination and 
review.
    13. Environmental studies and archeological investigations 
directly related to transportation programs and projects.
    14. Costs associated with obtaining permits and/or complying 
with tribal, Federal, state, and local environmental, archeological 
and natural resources regulations and standards.
    15. Development of natural habitat and wetland conservation and 
mitigation plans, including plans authorized under the Water 
Resources Development Act of 1990, 104 Stat. 4604 (Water Resources 
Development Act).
    16. Architectural and landscape engineering services related to 
transportation programs.
    17. Engineering design related to transportation programs, 
including permitting activities.
    18. Inspection of bridges and structures.
    19. Indian local technical assistance program (LTAP) centers.
    20. Highway and transit safety planning, programming, studies 
and activities.
    21. Tribal employment rights ordinance (TERO) fees.
    22. Purchase or lease of advanced technological devices used for 
transportation planning and design activities such as global 
positioning units, portable weigh-in-motion systems, hand held data 
collection units, related hardware and software, etc.
    23. Planning, design and coordination for Innovative Readiness 
Training projects.
    24. Transportation planning and project development activities 
associated with border crossings on or affecting tribal lands.
    25. Public meetings and public involvement activities.
    26. Leasing or rental of equipment used in transportation 
planning or design programs.
    27. Transportation-related technology transfer activities and 
programs.
    28. Educational activities related to bicycle safety.
    29. Planning and design of mitigation of damage to wildlife, 
habitat, and ecosystems caused by a transportation project.
    30. Evaluation of community impacts such as land use, mobility, 
access, social, safety, psychological, displacement, economic, and 
aesthetic impacts.
    31. Acquisition of land and interests in land required for 
right-of-way, including control of access thereto from adjoining 
lands, the cost of appraisals, cost of examination and abstract of 
title, the cost of certificate of title, advertising costs, and any 
fees incidental to such acquisition.
    32. Cost associated with relocation activities including 
financial assistance for displaced businesses or persons and other 
activities as authorized by law.
    33. On the job education including classroom instruction and 
pre-apprentice training activities related to transportation 
planning.
    34. Other eligible activities as approved by FHWA.
    35. Any additional activities identified by IRR Program 
Coordinating Committee guidance and approved by the appropriate 
Secretary (see Sec.  170.156).
    36. Indirect general and administrative costs; and
    37. Other eligible activities described in this part.
    B. IRR Program funds can be used for the following construction 
and improvement activities:
    1. Construction, reconstruction, rehabilitation, resurfacing, 
restoration, and operational improvements for IRR roads and highway 
bridges including bridges and structures under 20 feet in length, 
including the replacement of low-water crossings, regardless of 
length, with bridges.
    2. Construction or reconstruction of IRR roads and bridges 
necessary to accommodate other transportation modes.
    3. Construction of toll roads, highway bridges and tunnels, and 
toll and non-toll ferry boats and terminal facilities, and 
approaches thereto (except when on the Interstate System) to the 
extent permitted under 23 U.S.C. 129.
    4. Construction of projects for the elimination of hazards at 
railway-highway crossings, including the separation or protection of 
grades at crossings, the reconstruction of existing railroad grade 
crossing structures, and the relocation of highways to eliminate 
grade crossings.
    5. Installation of protective devices at railway-highway 
crossings.
    6. Transit facilities, whether publicly or privately owned, that 
serve Indian reservations and other communities or that provide 
access to or are located within an Indian reservation or community 
(see Sec. Sec.  170.148 through 170.152 for additional information).
    7. Engineered pavement overlays that add to the structural value 
and design life or increase the skid resistance of the pavement.
    8. Tribally-owned, post-secondary vocational school roads and 
bridges.
    9. Road sealing.
    10. Double bituminous surface and chip seals that are part of a 
predefined stage of construction or form the final surface of low 
volume roads.
    11. Seismic retrofit, replacement, rehabilitation, and painting 
of highway bridges.
    12. Application of calcium magnesium acetate, sodium acetate/
formate, or other environmentally acceptable, minimally corrosive 
anti-icing and de-icing compositions on highway bridges, and 
approaches thereto and other elevated structures.
    13. Installation of scour countermeasures for highway bridges 
and other elevated structures.
    14. Special pedestrian facilities built in lieu of streets or 
roads, where standard street or road construction is not feasible.
    15. Interpretive signs, standard traffic regulatory and guide 
signs that are culturally relevant (native language, symbols, etc.) 
that are a part of transportation projects.
    16. Traffic barriers and bridge rails.
    17. Engineered spot safety improvements.
    18. Planning and development of rest areas, recreational trails, 
parking areas, sanitary facilities, water facilities, and other 
facilities that accommodate the traveling public.
    19. Public approach roads and interchange ramps that meet the 
definition of an Indian reservation road.
    20. Construction of roadway lighting and traffic signals.
    21. Adjustment or relocation of utilities directly related to 
roadway work, not required to be paid for by local utility 
companies.
    22. Conduits crossing under the roadway to accommodate utilities 
that are part of future development plans.
    23. Restoration of borrow and gravel pits created by projects 
funded from the IRR Program.
    24. Force account and day labor work, including materials and 
equipment rental, being performed in accordance with approved plans 
and specifications.
    25. Experimental features where there is a planned monitoring 
and evaluation schedule.
    26. Capital and operating costs for traffic monitoring, 
management, and control facilities and programs.

[[Page 43115]]

    27. Safely accommodating the passage of vehicular and pedestrian 
traffic through construction zones.
    28. Construction engineering including contract/project 
administration, inspection, and testing.
    29. Construction of temporary and permanent erosion control, 
including landscaping and seeding of cuts and embankments.
    30. Landscape and roadside development features.
    31. Marine terminals as intermodal linkages.
    32. Construction of visitor information centers, kiosks, and 
related items.
    33. Other appropriate public road facilities such as visitor 
centers as determined by the Secretary of Transportation.
    34. Facilities adjacent to roadways to separate pedestrians and 
bicyclists from vehicular traffic for operational safety purposes, 
or special trails on separate rights-of-way.
    35. Construction of pedestrian walkways and bicycle 
transportation facilities, such as a new or improved lane, path, or 
shoulder for use by bicyclists and a traffic control device, 
shelter, or parking facility for bicycles.
    36. Facilities adjacent to roadways to separate modes of traffic 
for safety purposes.
    37. Acquisition of scenic easements and scenic or historic sites 
provided they are part of an approved project or projects.
    38. Debt service on bonds or other debt financing instruments 
issued to finance IRR construction and project support activities.
    39. Any project to encourage the use of carpools and vanpools, 
including provision of carpooling opportunities to the elderly and 
individuals with disabilities, systems for locating potential riders 
and informing them of carpool opportunities, acquiring vehicles for 
carpool use, designating existing highway lanes as preferential 
carpool highway lanes, providing related traffic control devices, 
and designating existing facilities for use for preferential parking 
for carpools.
    40. Fringe and corridor parking facilities including access 
roads, buildings, structures, equipment improvements, and interests 
in land.
    41. Adjacent vehicular parking areas.
    42. Costs associated with obtaining permits and/or complying 
with tribal, Federal, state, and local environmental, archeological, 
and natural resources regulations and standards on IRR projects.
    43. Seasonal transportation routes, including snowmobile trails, 
ice roads, overland winter roads, and trail markings. (See 
Sec. Sec.  170.123 through 170.124.)
    44. Tribal fees such as employment taxes (TERO), assessments, 
licensing fees, permits, and other regulatory fees.
    45. On the job education including classroom instruction and 
pre-apprentice training activities related to IRR construction 
projects such as equipment operations, surveying, construction 
monitoring, testing, inspection and project management.
    46. Installation of advance technological devices on IRR 
transportation facilities such as permanent weigh-in-motion systems, 
informational signs, intelligent transportation system hardware, 
etc.
    47. Tribal, cultural, historical, and natural resource 
monitoring, management and mitigation.
    48. Mitigation activities required by tribal, state, or Federal 
regulatory agencies and 42 U.S.C. 4321, et seq., the National 
Environmental Policy Act (NEPA).
    49. Leasing or rental of construction equipment.
    50. Coordination and construction materials for innovative 
readiness training projects such as the Department of Defense (DOD), 
the American Red Cross, the Federal Emergency Management Agency 
(FEMA), etc.
    51. Emergency repairs on IRR roads, bridges, trails, and 
seasonal transportation routes.
    52. Public meetings and public involvement activities.
    53. Construction of roads on dams and levees.
    54. Transportation enhancement activities as defined in 23 
U.S.C. 101(a).
    55. Modification of public sidewalks adjacent to or within IRR 
transportation facilities.
    56. Highway and transit safety infrastructure improvements and 
hazard eliminations.
    57. Transportation control measures such as employer-based 
transportation management plans, including incentives, shared-ride 
services, employer-sponsored programs to permit flexible work 
schedules and other activities, other than clause (xvi) listed in 
section 108(f)(1)(A) of the Clean Air Act, (42 U.S.C. 
7408(f)(1)(A)).
    58. Necessary environmental restoration and pollution abatement.
    59. Trail development and related activities as identified in 
Sec. Sec.  170.135-170.138.
    60. Development of scenic overlooks and information centers.
    61. Natural habitat and wetlands mitigation efforts related to 
IRR road and bridge projects, including:
    a. Participation in natural habitat and wetland mitigation 
banks, including banks authorized under the Water Resources 
Development Act, and
    b. Contributions to tribal, statewide and regional efforts to 
conserve, restore, enhance, and create natural habitats and wetland, 
including efforts authorized under the Water Resources Development 
Act.
    62. Mitigation of damage to wildlife, habitat and ecosystems 
caused as a result of a transportation project.
    63. Construction of permanent fixed or moveable structures for 
snow or sand control.
    64. Cultural access roads.
    65. Other eligible items as approved by the Federal Highway 
Administration (FHWA).
    66. Any additional activities identified by IRR Program 
Coordinating Committee and approved by the appropriate Secretary 
(see Sec.  170.156).
    67. Other eligible activities described in this part.

Appendix B to Subpart B--Sources of Tribal Transportation Training and 
Education Opportunities

    The following is a list of some of the many governmental sources 
for tribal transportation training and education opportunities. 
There may be other non-governmental, tribal, or private sources not 
listed here.

1. National Highway Institute training courses and fellowships
2. State and local technical assistance program workshops
3. Indian local technical assistance program workshops
4. FHWA and FTA Research Fellowships
5. Dwight David Eisenhower Transportation Fellowship (23 U.S.C. 504)
6. Intergovernmental personnel agreement assignments
7. BIA transportation cooperative education program
8. BIA force account operations
9. Federal Transit Administration workshops
10. State Departments of Transportation
11. Federal-aid highway construction and technology training 
including skill improvement programs under 23 U.S.C. 140 (b)(c)
12. Other funding sources identified in Sec.  170.150 (Transit)
13. Department of Labor work force development
14. Indian Employment, Training, and Related Services Demonstration 
Act, Public Law 102-477
15. Garrett Morgan Scholarship (FHWA)
16. NTRC--National Transit Resource Center
17. CTER--Council for Tribal Employment Rights
18. BIA Indian Highway Safety Program
19. FHWA/STIPDG and NSTISS Student Internship Programs (Summer 
Transportation Internship Program for Diverse Groups and National 
Summer Transportation Institute for Secondary Students)
20. Environmental Protection Agency (EPA)
21. Department of Commerce (DOC)
22. Department of Housing and Urban Development Community Planning 
and Development

Subpart C--Indian Reservation Roads Program Funding

Tribal Transportation Allocation Methodology (TTAM)


Sec.  170.200  How does BIA allocate IRR Program funds?

    This section sets forth the Tribal Transportation Allocation 
Methodology (TTAM) that BIA uses to allocate IRR Program funds. After 
appropriate statutory and regulatory set-asides, as well as other 
takedowns, the remaining funds are allocated as follows:

[[Page 43116]]

[GRAPHIC] [TIFF OMITTED] TR19JY04.001

    (a) A statutorily determined percentage to a tribal transportation 
planning program (under 23 U.S.C. 204(j)); and
    (b) The remainder to a pool of funds designated as ``Remaining 
funding available for distribution.'' This ``Remaining funding 
available for distribution'' pool is further allocated as follows:
    (1) 5 percent to a discretionary pool for IRR High Priority 
Projects (IRRHPP); and
    (2) 95 percent to pool for distribution by the following Relative 
Need Distribution Factor (RNDF) as defined in Sec.  170.223:

(50 percent Cost to Construct + 30 percent Vehicle Miles Traveled + 20 
percent Population)

    (3) If the annual authorization is greater than $275 million, then 
the amount above $275 million, after appropriate statutory and 
regulatory set-asides, as well as other takedowns are applied, will be 
allocated as follows:
    (i) 12.5 percent to the IRRHPP (Sec.  170.205);
    (ii) 12.5 percent to the Population Adjustment Factor (PAF) (Sec.  
170.220); and
    (iii) 75 percent to the RNDF (Sec.  170.223).


Sec.  170.201  How does BIA allocate and distribute tribal 
transportation planning funds?

    Upon request of a tribal government and approval by the BIA 
Regional Office, BIA allocates tribal transportation planning funds 
described in Sec.  170.403 pro rata according to the tribes' relative 
need percentage from the RNDF described in Sec.  170.223. The tribal 
transportation planning funds will be distributed in accordance with 
the BIA procedures for self-governance tribes that negotiate tribal 
transportation planning in their annual funding agreements and to BIA 
Regional Offices for all other tribes.


Sec.  170.202  Does the Relative Need Distribution Factor allocate 
funding among tribes?

    Yes. The RNDF determines the amount of funding available to 
allocate to the tribes for their approved IRR projects and activities 
under 23 U.S.C. 202(d)(2). The IRR Program construction funds are 
allocated pro rata according to the tribes' relative need percentage 
from the Funding Formula.
    (a) The IRR Program construction funds will be distributed in 
accordance with the BIA procedures for self-governance tribes that 
negotiate IRR construction projects into their AFA, and distributed to 
BIA Regional Offices for all other tribes.
    (b) In order for a tribe's IRR Program allocation to be expended on 
a construction project, the project must be included in an FHWA-
approved Transportation Improvement Program (TIP).

IRR High Priority Project (IRRHPP)


Sec.  170.205  What is an IRR High Priority Project (IRRHPP)?

    (a) The IRRHPP is a special funding pool that can be used:
    (1) By a tribe whose annual allocation is insufficient to complete 
its highest priority project;
    (2) By a governmental subdivision of a tribe that is authorized to 
administer the tribe's IRR Program funding and whose annual allocation 
is insufficient to complete its highest priority project; or
    (3) By any tribe for an emergency/disaster on any IRR 
transportation facility.
    (b) Eligible applicants may have only one IRRHPP application 
pending at any time. This includes emergency/disaster applications.
    (c) IRRHPP funds cannot be used for transportation planning, 
research, routine maintenance activities, and items listed in Sec.  
170.116.

[[Page 43117]]

Sec.  170.206  How is an emergency/disaster defined?

    (a) An emergency/disaster is damage to an IRR transportation 
facility that:
    (1) Renders the facility impassable or unusable; and
    (2) Is caused by either a natural disaster over a widespread area 
or catastrophic failure from an external cause.
    (b) Some examples of natural disasters are: floods, droughts, 
earthquakes, tornadoes, landslides, avalanches, and severe storms.
    (c) An example of a catastrophic failure is the collapse of a 
highway bridge after being struck by a barge, truck, or landslide.


Sec.  170.207  What is the intent of IRRHPP emergency/disaster funding?

    The intent of IRRHPP emergency/disaster funding is to provide 
funding for a project that contains eligible work and would be approved 
for FHWA-ERFO Program funding except that the disaster dollar threshold 
for eligibility in the FHWA-ERFO program has not been met. Applicants 
are encouraged to apply for FHWA-ERFO Program funding if the project 
meets the requirements of the program.


Sec.  170.208  What funding is available for IRRHPP?

    The IRRHPP funding level (see chart in Sec.  170.200) for the year 
is:
    (a) Authorization Amount up to $275 million--5 percent of the pool 
of funds designated as ``Remaining funding available for 
distribution''; plus
    (b) Authorization Amount over $275 million--12.5 percent the amount 
above $275 million after appropriate statutory and regulatory set-
asides, as well as other takedowns.


Sec.  170.209  How will IRRHPP applications be ranked and funded?

    (a) BIADOT and the Federal Lands Highway (FLH) Program office will 
determine eligibility and fund IRRHPP applications subject to 
availability of funds and the following criteria:
    (1) Existence of safety hazards with documented fatality and injury 
accidents;
    (2) Number of years since the tribe's last IRR Program construction 
project completed;
    (3) Readiness to proceed to construction or IRRBP design need;
    (4) Percentage of project cost matched by other non-IRR Program 
funds (projects with a greater percentage of other matched funds rank 
ahead of lesser matches);
    (5) Amount of funds requested (smaller requests receive greater 
priority);
    (6) Challenges caused by geographic isolation; and
    (7) All weather access for: employment, commerce, health, safety, 
educational resources, and housing.
    (b) Funding is limited to the estimated cost of repairing damage to 
the IRR transportation facility up to a maximum of $1 million per 
application.
    (c) A project submitted as an emergency/disaster must be at least 
10 percent of a tribe's relative need distribution.
    (d) BIA's regional roads engineer or the tribe, if it has plans, 
specifications, and estimates (PS&E) approval authority will certify 
the cost estimate in approving the plans, specifications, and estimates 
for the IRRHPP.
    (e) The Project Scoring Matrix is found in appendix A to subpart C.


Sec.  170.210  How may a tribe apply for IRRHPP?

    A tribe may apply for IRRHPP funds by submitting a complete 
application to BIADOT. The application must include:
    (a) Project scope of work (deliverables, budget breakdown, 
timeline);
    (b) Amount of IRRHPP funds requested;
    (c) Project information addressing ranking criteria identified in 
Sec.  170.209, or the nature of the emergency/disaster;
    (d) Documentation that the project meets the definition of an IRR 
transportation facility and is in the IRR Inventory;
    (e) Documentation of official tribal action requesting the IRRHPP 
project; and
    (f) Documentation from the tribe providing authority for BIA to 
place the project on an IRRHPP TIP if the project is selected and 
approved.


Sec.  170.211  What is the IRRHPP Funding Priority List?

    The IRRHPP Funding Priority List (FPL) is the ranked IRRHPPs 
approved for funding under Sec.  170.209.
    (a) The number of projects on the FPL is limited by the amount of 
IRRHPP funds available at the beginning of the fiscal year.
    (b) BIA will place all projects on the FPL on an IRRHPP TIP and 
forward them to FHWA for approval.


Sec.  170.212  What is the timeline for IRRHPPs?

    (a) BIA will accept IRRHPP applications until December 31 each year 
for projects during the following year. BIA processes IRRHPP 
applications as shown in the following table:

------------------------------------------------------------------------
           By . . .                          BIA will . . .
------------------------------------------------------------------------
(1) January 31...............  Notify all applicants and Regions in
                                writing of acceptance of applications.
(2) March 31.................  Coordinate with FLH to rank all accepted
                                applications in accordance with Appendix
                                A to Subpart C, develop the FPL, and
                                return unaccepted applications to the
                                applicant with an explanation of the
                                deficiencies.
(3) April 15.................  Notify all accepted applicants of the
                                projects included on the FPL.
(4) May 15...................  Distribute funds to BIA Regions or in
                                accordance with procedures of the Office
                                of Self-Governance for selected IRRHPP.
------------------------------------------------------------------------

    (b) If total funding for accepted projects does not equal the total 
funds available for IRRHPP, the remaining funds will be redistributed 
by the Relative Need Distribution Factor in accordance with Appendix C 
to subpart C.
    (c) All IRRHPP funds must be obligated on or before August 15. If 
it is anticipated that these funds cannot be obligated by the end of 
the fiscal year, IRRHPP funds assigned to an approved project must be 
returned to FHWA by August 1. BIA will redistribute these funds the 
following fiscal year to those approved projects. (See Sec.  170.213.)


Sec.  170.213  How long are IRRHPP funds available for a project?

    Any project not under contract for construction within 3 fiscal 
years of its initial listing on an FPL will forfeit its unexpended 
funding. Applicants may request, in writing, a one-time, 1-year 
extension of this deadline from BIA. Upon completion of an IRRHPP, 
funds that are reserved but not expended are to be recovered and 
returned to the IRRHPP funding pool.

[[Page 43118]]

Sec.  170.214  How does award of an emergency/disaster project affect 
projects on the FPL?

    (a) A tribe may submit an emergency/disaster project any time 
during the fiscal year. BIA considers these projects a priority and 
funds them as follows:
    (1) If a tribe submits a project before the issuance of the FPL and 
it is determined as eligible for IRRHPP funds, BIA will provide funding 
before providing funding for the other approved projects on the FPL; or
    (2) If a tribe submits a project after the issuance of the FPL and 
the distribution of the IRRHPP funds, BIA will provide funding when 
funds provided to the FPL projects is returned to BIA due to their 
inability to be obligated. (See Sec.  170.212(c).)
    (b) If BIA uses funding previously designated for a project on the 
FPL to fund a emergency/disaster project, the FPL project that lost its 
funding will move to the top of the FPL for the following year.

Population Adjustment Factor


Sec.  170.220  What is the Population Adjustment Factor?

    The Population Adjustment Factor (PAF) is a special portion of the 
total IRR Program distribution calculated annually that provides for 
broader participation in the IRR Program by tribes (or a governmental 
subdivision of a tribe authorized to administer the tribe's IRR Program 
funding). The PAF is based upon the population ranges and distribution 
factors in appendix B to subpart C. The population data used is the 
American Indian and Alaska Native Service Population developed by the 
Department of Housing and Urban Development, under the Native American 
Housing Assistance and Self-Determination Act (NAHASDA), (25 U.S.C. 
4101 et seq.). Appendix B to subpart C explains how the PAF is derived. 
The funds generated by the PAF can be used for transportation planning 
or IRR projects.


Sec.  170.221  What funding is available for distribution using the 
PAF?

    When the annual authorization for the IRR Program is greater than 
$275 million, 12.5 percent of the amount above $275 million after the 
appropriate statutory and regulatory set-asides, as well as other 
takedowns, is available for distribution using the PAF.

Relative Need Distribution Factor


Sec.  170.223  What is the Relative Need Distribution Factor (RNDF)?

    The Relative Need Distribution Factor (RNDF) is a mathematical 
formula used for distributing the IRR Program construction funds. The 
RNDF is derived from a combination of the cost to construct, vehicle 
miles traveled, and population. Appendix C to subpart C explains how 
the RNDF is derived and applied.

IRR Inventory and Long-Range Transportation Planning (LRTP)


Sec.  170.225  How does the LRTP process relate to the IRR Inventory?

    The LRTP process (see subpart D) is a uniform process that 
identifies the transportation needs and priorities of the tribes. The 
IRR Inventory is derived from transportation facilities identified 
through LRTP. It is also a means for identifying projects for the 
IRRHPP Program.


Sec.  170.226  How will this part affect the IRR Inventory?

    The IRR Inventory defined in this part will expand the IRR 
Inventory for funding purposes to include:
    (a) All roads, highway bridges, and other eligible transportation 
facilities that were previously approved in the BIA Road System in 1992 
and each following year;
    (b) All Indian reservation roads constructed using Highway Trust 
funds since 1983;
    (c) All designated IRR routes (25 CFR 170.442-170.444);
    (d) Non-road transportation related facilities; and
    (e) Other applicable IRR transportation facilities.


Sec.  170.227  How does BIA develop and use the IRR Inventory?

    The IRR Inventory as defined in Sec.  170.442 identifies the 
transportation need by providing the data that BIA uses to generate the 
Cost to Construct (CTC) and Vehicle Miles Traveled (VMT) components of 
RNDF. The IRR Inventory is developed through the LRTP process, as 
described in Sec. Sec.  170.410 through 170.415. BIA Regional offices 
maintain, certify, and enter the data for their region's portion of the 
IRR Inventory database. Only project-specific transportation activities 
are included in the IRR Inventory.


Sec.  170.228  Are all facilities included in the IRR Inventory used to 
calculate CTC?

    No. Projects/facilities proposed to receive construction funds on 
an approved IRRTIP are not eligible for future inclusion in the 
calculation of the CTC portion of the formula for a period of 5 years 
thereafter.

General Data Appeals


Sec.  170.231  May a tribe challenge the data BIA uses in the RNDF?

    (a) A tribe may submit a request to the BIA Regional Director to 
revise the data for the tribe that BIA uses in the RNDF. The request 
must include the tribe's data and written support for its contention 
that the tribal data is more accurate than BIA's.
    (b) A tribe may submit a data correction request at any time. In 
order to impact the distribution in a given fiscal year, a data 
correction request must be approved, or any subsequent appeals 
resolved, by June 1 of the prior fiscal year.
    (c) The BIA Regional Director must respond within 30 days of 
receiving a data correction request under this section.
    (1) Unless the BIA Regional Director determines that the existing 
BIA data is more accurate, the BIA Regional Director must approve the 
tribe's data correction request and accept the tribe's corrected data.
    (2) If the BIA Regional Director disapproves the tribe's request, 
the decision must include a detailed written explanation of the reasons 
for the disapproval, copies of any supporting documentation (other than 
the tribe's request) that the BIA Regional Director relied upon in 
reaching the decision, and notice of the tribe's right to appeal the 
decision.
    (3) If the BIA Regional Director does not approve the tribe's 
request within 30 days of receiving the request, the request must be 
deemed disapproved.


Sec.  170.232  How does a tribe appeal a disapproval from the BIA 
Regional Director?

    (a) Within 30 days of receiving a disapproval, or within 30 days of 
a disapproval by non-action of the BIA Regional Director, a tribe may 
file a written notice of appeal to the Director, Bureau of Indian 
Affairs, with a copy provided to the BIA Regional Director; and
    (b) Within 30 days of receiving an appeal, the Director, Bureau of 
Indian Affairs must issue a written decision upholding or reversing the 
BIA Regional Director's disapproval. This decision must include a 
detailed written explanation of the reasons for the disapproval, copies 
of any supporting documentation that the Director, Bureau of Indian 
Affairs relied upon in reaching the decision (other than the tribe's 
request or notice of appeal), and notice of the tribe's right to appeal 
the decision to the Interior Board of Indian Appeals under 25 CFR part 
2.

[[Page 43119]]

Flexible Financing


Sec.  170.300  May tribes use flexible financing to finance IRR 
transportation projects?

    Yes. Tribes may use flexible financing in the same manner as States 
to finance IRR transportation projects, unless otherwise prohibited by 
law.
    (a) Tribes may issue bonds or enter into other debt financing 
instruments under 23 U.S.C. 122 with the expectation of payment of IRR 
Program funds to satisfy the instruments.
    (b) Under 23 U.S.C. 183, the Secretary of Transportation may enter 
into an agreement for secured loans or lines of credit for IRR projects 
meeting the requirements contained in 23 U.S.C. 182. Tribes or BIA may 
service Federal credit instruments. The secured loans or lines of 
credit must be paid from tolls, user fees, or other dedicated revenue 
sources.
    (c) Tribes may use IRR Program funds as collateral for loans or 
bonds to finance IRR projects. Upon the request of a tribe, a BIA 
region will provide necessary documentation to banks and other 
financial institutions.


170.301  Can a tribe use IRR Program funds to leverage other funds or 
pay back loans?

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


170.302  Can BIA regional offices borrow IRR Program funds from each 
other?

    Yes. A BIA Regional office, in consultation with tribes, may enter 
into agreements to borrow IRR Program funds to assist another BIA 
regional office in financing the completion of an IRR project. These 
funds must be repaid within the next fiscal year. These agreements 
cannot be executed during the last year of a transportation 
authorization act unless Congress has authorized IRR Program funds for 
the next year.


Sec.  170.303  Can a tribe apply for loans or credit from a State 
infrastructure bank?

    Yes. Upon the request of a tribe, BIA region will provide necessary 
documentation to a State infrastructure bank to facilitate obtaining 
loans and other forms of credit for an IRR project. A state 
infrastructure bank is a state or multi-state fund that can offer loans 
and other forms of credit to help project sponsors, such as tribes, pay 
for transportation projects.

                                           Appendix A to Subpart C.--IRR High Priority Project Scoring Matrix
--------------------------------------------------------------------------------------------------------------------------------------------------------
               Score                          10                     5                      3                      1                       0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Accident and fatality rate for      Severe...............  X....................  Moderate.............  Minimal.............  No accidents.
 candidate route \1\.
Years since last IRR construction   Never................  Last project more      Last project 5-9       Last project within   Currently has project.
 project completed.                                         than 10 years ago.     years ago.             last 1 to 4 years.
Readiness to Proceed to             PS&E Complete and      Bridge Replacement     Bridge Rehabilitation  Non-bridge PS & E     X.
 Construction or IRRBP Design Need.  approved.              PS&E development       PS&E development       development Project.
                                                            Project.               Project.
Percentage of Project matched by    X....................  80 percent or more by  20-79 percent by       1-19 percent........  No other funds.
 other funds.                                               other funds.           other funds.
Amount of funds requested \2\.....  X....................  250,000 or less......  250,001-500,000......  500,001-750,000.....  Over 750,000.
Geographic isolation..............  No external access to  Substandard Primary    Substandard Secondary  Substandard access    X.
                                     community.             access to community.   access to community.   to tribal facility.
All weather access for:...........  Addresses all 6        Addresses 4 or 5       Addresses 3 elements.  Addresses 2 elements  Addresses 1 element.
--Employment......................   elements.              elements.
--Commerce........................
--Health..........................
--Safety..........................
--Educational Resources...........
--Housing.........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ National Highway Traffic Safety Board standards.
\2\ Total funds requested, including preliminary engineering, construction, and construction engineering.

Appendix B to Subpart C--Population Adjustment Factor

    1. The Population Adjustment Factor allows for participation in 
the IRR Program by all tribes. This component of the funding formula 
creates a special calculation of funding which is available in 
accordance with the TTAM each fiscal year for a tribe based on the 
population range within which the tribe is included. The following 
table shows how BIA develops the PAF.

----------------------------------------------------------------------------------------------------------------
                                           Distribution
           Population  range                 factor*         Number of tribes**       Funding amount  per tribe
----------------------------------------------------------------------------------------------------------------
Less than 25...........................              1    N1......................  MBA*** x 1
25-100.................................              3.5  N2......................  MBA x 3.5
101-1000...............................              5.0  N3......................  MBA x 5.0
1001-10,000............................              6.5  N4......................  MBA x 6.5
10,001+................................              8    N5......................  MBA x 8
----------------------------------------------------------------------------------------------------------------
* Multiplier used to determine the PAF funding for the population ranges. For example, if $1000 is available for
  the first population range (less than 25), then the second population range (25-100) will receive $3,500 or
  3.5 times the amount available to the first population range.
** The number of tribes changes yearly.
*** The Minimum Base Allocation (MBA) is the dollar value to be multiplied by the distribution factor for each
  population range to determine the distribution of the PAF.


[[Page 43120]]

    2. The following example shows how the PAF applies to a total 
IRR Program authorization for the allocation year of $375 million. 
The five steps to calculate the Population Adjustment Factor are 
applied as follows:
    Step 1. For each population range, multiply the Distribution 
Factor by the total number of tribes identified in the population 
range to determine the Step Factor;
    Step 2. Add the Step Factors determined in Step 1 above to 
derive a Total Step Factor;
    Step 3. Calculate the $A = IRR Program authorization available 
in the allocation year by taking the Total IRR Program authorization 
for the allocation year ($375M for this example) minus the 
appropriate statutory and regulatory set-asides, as well as other 
takedowns ($25M for this example)

$375M-$25M = $350M;

    Step 4. Derive a Minimum Base Allocation by taking 12\1/2\ per 
cent of the difference (from Step 3) and dividing it by the Total 
Step Factor. The mathematical equation for the Base Allocation is as 
follows:
[GRAPHIC] [TIFF OMITTED] TR19JY04.002

MBA = Minimum Base Allocation
Distribution Factors = 1, 3.5, 5, 6.5, and 8
$A = IRR Program Authorization Available in the Allocation Year
$275M = Base Reference Amount
n = The nth Population Range
1 . . . 5 = Population Ranges 1 through 5
Nn = Number of tribes in the nth Population Range

For the example above, the formula yields:
[GRAPHIC] [TIFF OMITTED] TR19JY04.003

    Step 5. Calculate Population Adjustment Factor within each 
Population Range by multiplying the Distribution Factor for the 
Population Range by the Minimum Base Allocation.
    The mathematical equation for the Population Adjustment Factor 
calculation is as follows:

PAFn = DFn X MBA

Where:

PAF = Population Adjustment Factor
DF = Distribution Factor
n = The nth Population Range
MBA = Minimum Base Allocation

For example, for DF1 = 1.00; PAF1 = 1 x 
$3,215.57 = $3,215.57

For example, for DF3 = 5.00; PAF3 = 5 x 
$3,215.57 = $16,077.86

    The following table illustrates the results of the above 
calculations for all population ranges:

----------------------------------------------------------------------------------------------------------------
                                                                                  Tribal PAF per
      Population range (step)              Distribution    Step  factor     population   Total  funding
                                      of  tribes       factor                          range          per step
----------------------------------------------------------------------------------------------------------------
Less than 25.......................           17               1           17          $3,215.57      $54,664.72
25-100.............................           66               3.5        231          11,254.50      742,797.12
101-1000...........................          309               5         1545          16,077.36    4,968,058.65
1001-10,000........................          137               6.5        890.50       20,901.22    2,863,466.82
10,001 +...........................           29               8          232          25,724.58      746,012.69
                                    --------------
    Totals.........................  ...........   Total Step Factor = 2,915.50   ..............       9,375,000
----------------------------------------------------------------------------------------------------------------

Appendix C to Subpart C--Relative Need Distribution Factor

    The Relative Need Distribution Factor (RNDF) is a mathematical 
formula for distributing the IRR Program construction funds using 
the following three factors: Cost to Construct (CTC), Vehicle Miles 
Traveled (VMT), and Population (POP).

1. What Is the Formula for the RNDF?

    The Relative Need Distribution Factor is as follows:
    [GRAPHIC] [TIFF OMITTED] TR19JY04.004
    
Where:

A = percent Relative Need for an individual tribe
CTC = Total Cost to Construct calculated for an individual tribe
Total C = Total Cost to Construct calculated for all tribes shown in 
the IRR Inventory
VMT = Total vehicle miles traveled for all routes in the IRR 
Inventory for a given tribe
Total VMT = Total vehicle miles traveled for all routes for all 
tribes in the IRR Inventory
POP = Population of an individual tribe
Total POP = Total population for all tribes
[alpha], [beta], [delta], = 0.50, 0.30, 0.20 respectively = 
Coefficients reflecting relative weight given to each formula factor

Example:
    Tribe X has the following data:


CTC = $51,583,000...........  Total CTC = $10,654,171,742
VMT = 45,680................  Total VMT = 10,605,298
POP = 4,637.................  Total POP = 1,010,236
A = 0.50 [CTC / Total CTC] + 0.30[VMT / Total VMT] + 0.20[ POP / Total
 POP].
 
A = 0.50 [51,583,000 / 10,654,171,742] + 0.30 [45,680 / 10,605,298] +
 0.20 [4,637 / 1,010,236].
A = 0.00242 + 0.00129 + 0.00092.........................................
A = 0.00463 or 0.463 percent............................................
 

[[Page 43121]]

 
If IRR Program construction funds available for the fiscal year are
 $226,065,139 .
Then the allocation amount
 would be: $226,065,139 x
 0.00463 = $1,046,682.
 

2. How Does BIA Estimate Construction Costs?

    The methodology for calculating the Cost to Construct is 
explained in Appendix D of this subpart.

3. What Is the Cost to Construct for an Individual Tribe?

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

4. What Is the Cost to Construct Component in the RNDF?

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

5. May the Cost to Construct Component of the RNDF Be Modified?

    Yes, BIA and FHWA, with input and recommendations provided by 
the IRR Program Coordinating Committee, may consider revisions to 
the data elements used in calculating the Cost to Construct 
component.

6. What Is the Source of the Construction Cost Used To Generate the 
CTC?

    (a) The construction cost will be derived from the average of 
the following three project bid tabulation sources:
    (1) Tribal bid tabulations or local BIA bid tabulations;
    (2) State bid tabulations for the region of the State in which 
the tribe's project will be constructed;
    (3) National IRR Program bid tabulations.
    (b) If one or more of these bid tabulation sources is 
unavailable, use the average of the available sources.
    (c) BIADOT will collect the national IRR Program bid tabulation 
data and enter it into the Cost to Construct database.

7. What Is the VMT Component and How Is It Calculated?

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

8. What IRR Route Sections Does BIA Use To Calculate VMT?

    All IRR route sections in the IRR Inventory are used to 
calculate VMT, but percentage factors are applied in accordance with 
Appendix C to subpart C, question (10).

9. What Is the Population Component and How Is It Determined?

    The population component is a factor used to define a portion of 
transportation need based on the number of American Indian or Alaska 
Native people served. The population data used will be the American 
Indian and Alaska Native Service Population developed by the 
Department of Housing and Urban Development, under the Native 
American Housing Assistance and Self-Determination Act (NAHASDA), 
(25 U.S.C. 4101 et seq.).

10. Do All IRR Transportation Facilities in the IRR Inventory Count at 
100 Percent of Their CTC and VMT?

    No. The CTC and VMT must be computed at the non-Federal share 
requirement for matching funds for any transportation facility that 
is added to the IRR inventory and is eligible for funding for 
construction or reconstruction with Federal funds, other than 
Federal Lands Highway Program funds.
    However, if a facility falls into one or more of the following 
categories, then the CTC and VMT factors must be computed at 100 
percent:
    (1) The transportation facility was approved, included, and 
funded at 100 percent of CTC and VMT in the IRR Inventory for 
funding purposes prior to the issuance of these regulations.
    (2) The facility is not eligible for funding for construction or 
reconstruction with Federal funds, other than Federal Lands Highway 
Program funds; or
    (3) The facility is eligible for funding for construction or 
reconstruction with Federal funds, however, the public authority 
responsible for maintenance of the facility provides certification 
of maintenance responsibility and its inability to provide funding 
for the project.

Appendix D to Subpart C--Cost To Construct

Cost to Construct

    (Appendix D includes Tables 1-8 which BIA Division of 
Transportation developed based on internal IRR data and the 
negotiated rulemaking process.) This method utilizes the concepts of 
the Bureau of Indian Affairs' ``Simplified Approach to Compute the 
Cost to Construct''. The concept has been modified to include 
computing costs for High Capacity Roads (multi-lane roads), non-road 
projects (snowmobile trails, boardwalks, footpaths, etc.) and other 
eligible transportation facility projects.
    The theory behind this concept is based on the procedure that 
information gathered during any inventory update can be used to 
compare the existing conditions to defined Adequate Standard 
Characteristics. This comparison can then be used to determine the 
total cost required to bring the transportation facility road up to 
a necessary Adequate Standard. The IRR Inventory database is used to 
determine the costs of a new transportation facility or in the case 
of an existing facility, the costs that will be necessary to improve 
the facility from it's existing condition to an adequate standard. 
Therefore, the Cost to Construct for a particular facility is the 
cost required to improve the facility's existing condition to a 
condition that would meet the Adequate Standard Characteristics (see 
Table 1). For roadways, the recommended design of the geometrics and 
surface type vary based on the road's functional classification and 
average daily traffic and will use four categories of cost. The four 
categories are Grade and Drain Costs, Aggregate Costs, Pavement 
Costs, and Incidental Costs. For bridges, costs are derived from 
costs in the National Bridge Inventory as well as the National 
Bridge Construction unit cost data developed by FHWA. For other 
transportation IRR transportation facilities, an inventory of needs 
must be developed with associated costs for new and existing IRR 
transportation facilities based on long range transportation 
planning. The BIA Regions and tribes must ensure the IRR Inventory 
is sufficiently updated to provide all the necessary information 
indicating the need, the condition and the construction cost data to 
compute the cost to construct of any proposed or existing facility.

Basic Procedures

    The IRR Inventory, based on transportation planning must be 
developed for those tribes without data and updated for those tribes 
that have an existing IRR Inventory. Once the IRR Inventory database 
is current and all IRR transportation facilities needs are 
identified and verified, the Cost to Construct for those IRR 
transportation facilities can be developed.
    The procedure for determining the cost to construct of a 
proposed transportation facility is computed through the following 
step-by-step process:
    (a) Determine the Future ADT of the transportation facility as 
applicable, based upon tribal transportation planning or set default 
future ADT (see Table 2);
    (b) Determine the Class of transportation facility e.g., rural 
local, rural major collector, or other transportation facility, 
utilizing future ADT and based upon tribal transportation planning 
(see Table 1);
    (c) Identify, if appropriate, transportation facility terrain as 
flat, rolling, or mountainous;
    (d) Set Adequate Standard based on Class, and/or future ADT, and 
Terrain (see Table 1);
    (e) Identify the transportation facility's construction cost per 
unit (e.g., cost per mile, cost per linear foot) for the applicable 
components of construction: Aggregate, Paving, Grade/Drain, 
Incidental, or other costs associated with the transportation 
facility;
    (f) Multiply the construction cost per unit for each component 
of construction by the length of the proposed road or other 
appropriate unit of the transportation facility to determine the 
cost for each component of construction; and
    (g) Calculate the cost for the proposed road or transportation 
facility by adding together the costs for each component of 
construction.
    The procedure for determining the cost to reconstruct or 
rehabilitate an existing transportation facility is determined in 
the same manner as a proposed transportation facility, except that 
the existing condition of the project is evaluated to determine the

[[Page 43122]]

remaining percentage of cost of each applicable component of 
construction that will be included in the cost for reconstruction. 
The steps are:
    (1) Evaluate existing condition of road or transportation 
facility in accordance with applicable management systems, 
guidelines or other requirements;
    (2) Identify the percentage of required cost for each component 
of applicable construction costs for the transportation facility by 
determining the Adequate Standards Characteristics (see Table 1) and 
existing condition of the transportation facility and by applying 
the applicable percent cost requirement tables for aggregate, 
paving, grade/drain, incidental, and bridge (see Tables 4-8);
    (3) Multiply the construction cost per unit for each component 
of construction by the corresponding percent of cost required (see 
Tables 4-8) and by the length of the road or other appropriate unit 
of the transportation facility to determine the reconstruction cost 
for each component; and
    (4) Calculate the reconstruction cost for the road or 
transportation facility by adding together the reconstruction costs 
for each component of construction.
    Average daily traffic (ADT) is acquired through actual traffic 
counts on the roadway sections. Where current ADT is practical to 
acquire, it should be acquired and future ADT calculated by 
projecting the current ADT at 2 percent per year for 20 years. If 
the road is proposed, the ADT impractical to acquire, or a current 
ADT does not exist, then BIA will assign a default current ADT and 
calculate future ADT by projecting the default current ADT at 2 
percent per year for 20 years to form the basis of the Adequate 
Standard (see Table 1). Table 2 summarizes the default current and 
default future ADT by class of road.
    Functional Classification: Functional classification means an 
analysis of a specific transportation facility taking into account 
current and future traffic generators, and their relationship to 
connecting or adjacent BIA, state, county, Federal, and/or local 
roads and other intermodal facilities. Functional classification is 
used to delineate the difference between the various road and/or 
intermodal transportation facility standards eligible for funding 
under the IRR Program. As a part of the IRR Inventory system 
management, all IRR transportation facilities included on or added 
to the IRR Inventory must be classified according to the following 
functional classifications:
    (a) Class 1: Major arterial roads providing an integrated 
network with characteristics for serving traffic between large 
population centers, generally without stub connections and having 
average daily traffic volumes of 10,000 vehicles per day or more 
with more than two lanes of traffic.
    (b) Class 2: Rural minor arterial roads providing an integrated 
network having the characteristics for serving traffic between large 
population centers, generally without stub connections. May also 
link smaller towns and communities to major resort areas that 
attract travel over long distances and generally provide for 
relatively high overall travel speeds with minimum interference to 
through traffic movement. Generally provide for at least inter-
county or inter-State service and are spaced at intervals consistent 
with population density. This class of road will have less than 
10,000 vehicles per day.
    (c) Class 3: Streets that are located within communities serving 
residential areas.
    (d) Class 4: Rural Major Collector Road is a collector to rural 
local roads.
    (e) Class 5: Rural Local Road that is either a section line and/
or stub type roads that collect traffic for arterial type roads, 
make connections within the grid of the IRR System. This class of 
road may serve areas around villages, into farming areas, to 
schools, tourist attractions, or various small enterprises. Also 
included are roads and motorized trails for administration of 
forest, grazing, mining, oil, recreation, or other use purposes.
    (f) Class 6: City Minor Arterial Streets that are located within 
communities, and serve as access to major arterials.
    (g) Class 7: City Collector Streets that are located within 
communities and serve as collectors to the city local streets.
    (h) Class 8: This classification encompasses all non-road 
projects such as paths, trails, walkways, or other designated types 
of routes for public use by foot traffic, bicycles, trail bikes, 
snowmobile, all terrain vehicles or other uses to provide for the 
general access of non-vehicular traffic.
    (i) Class 9: This classification encompasses other 
transportation facilities such as public parking facilities adjacent 
to IRR routes and scenic byways, rest areas, and other scenic 
pullouts, ferry boat terminals, and transit terminals.
    (j) Class 10: This classification encompasses airstrips that are 
within the boundaries of the IRR System grid and are open to the 
public. These airstrips are included for inventory and maintenance 
purposes only.
    (k) Class 11: This classification indicates an overlapping of a 
previously inventoried section or sections of a route and is used to 
indicate that it is not to be used for accumulating needs data. This 
class is used for reporting and identification purposes only.
    Construction Need: All existing and proposed transportation 
facilities in the IRR Inventory must have a Construction Need (CN) 
which is used in the Cost to Construct calculations. These 
transportation facilities are assigned a CN by the tribe during the 
long-range transportation planning and inventory update process 
using certain guidelines which are: Ownership or responsibility of 
the facility, whether it is within or provides access to 
reservations, groups, villages and communities in which the majority 
of the residents are Indian, and whether it is vital to the economic 
development of Indian tribes. As part of the IRR Inventory 
management, all facilities included on or added to the IRR Inventory 
must be designated a CN which are defined as follows:
    (a) Construction Need 0: Transportation facilities which have 
been improved to their acceptable standard or projects/facilities 
proposed to receive construction funds on an approved IRRTIP are not 
eligible for future inclusion in the calculation of the CTC portion 
of the formula for a period of 5 years thereafter.
    (b) Construction Need 1: Existing BIA roads needing improvement.
    (c) Construction Need 2: Construction need other than BIA roads 
needing improvement.
    (d) Construction Need 3: Substandard or other roads for which no 
improvements are planned, maintenance only.
    (e) Construction Need 4: Roads which do not currently exist and 
need to be constructed, proposed roads.
BILLING CODE 4310-LH-P

[[Page 43123]]

[GRAPHIC] [TIFF OMITTED] TR19JY04.005

BILLING CODE 4310-LH-C

[[Page 43124]]

Table 2.--Default Current ADT and Default Future ADT

    Table 2 summarizes the default current and default future ADT by 
class of road. Default future ADT is calculated by projecting 
default current ADT at 2 percent per year for 20 years. 2 percent 
per year for 20 years yields a factor of 1.485.

          Table 2.--Default Current ADT and Default Future ADT
------------------------------------------------------------------------
                                           Default current and default
             IRR Class No.                         future ADT*
------------------------------------------------------------------------
1.....................................  N/A, Must Exist
2.....................................  100 * 1.485 = 149
3.....................................  25 * 1.485 = 37
4.....................................  50 * 1.485 = 74
5.....................................  50 * 1.485 = 74
6.....................................  50 * 1.485 = 74
7.....................................  50 * 1.485 = 74
8.....................................  20 * 1.485 = 30
9.....................................  N/A**
10....................................  N/A**
11....................................  N/A**
------------------------------------------------------------------------
* Default Future ADT is used for proposed roads or when impractical to
  acquire current ADT or when current ADT does not exist.
** Class 9, 10, and 11 are point features in the inventory and do not
  have an ADT. All multiplication is rounded.

Table 3.--Future Surface Type

    Table 3 summarizes all possible scenarios of the future surface 
type either required or based on the various future ADT thresholds 
for each type or class of road in the inventory.

                                          Table 3.--Future Surface Type
----------------------------------------------------------------------------------------------------------------
              Const. need                    IRR class No.              Future ADT         Future  surface type
----------------------------------------------------------------------------------------------------------------
0,1,2,3...............................  1......................  Any....................  Paved
0,1,2,3...............................  2......................  Any....................  Paved
0,1,2,3...............................  3,6,7..................  < 50...................  Earth
                                                                 50-250.................  Gravel
                                                                 > 250..................  Paved
0,1,2,3...............................  4,5....................  < 50...................  Earth
                                                                 50-250.................  Gravel
                                                                 > 250..................  Paved
0,1,2,3,4.............................  8......................  N/A....................  N/A*
0,1,2,3,4.............................  9......................  N/A....................  N/A**
0,1,2,3,4.............................  10.....................  N/A....................  N/A***
4***..................................  1......................  N/A****................  N/A****
4.....................................  2......................  ANY....................  Paved
4.....................................  3,6,7..................  < 50...................  Earth
                                                                 50-250.................  Gravel
                                                                 > 250..................  Paved
4.....................................  4......................  < 50...................  Earth
                                                                 50-250.................  Gravel
                                                                 > 250..................  Paved
4.....................................  5......................  < 50...................  Earth
                                                                 50-250.................  Gravel
                                                                 > 250..................  Paved
----------------------------------------------------------------------------------------------------------------
* Class 8 does not have a future surface type. Per mile costs are applied independent of future surface type.
** Class 9 does not have a future surface type. Costs are independent of future surface type.
*** Class 10 does not have a future surface type. These are airstrips and is used for identification purposed
  only.
**** Class 1 with Construction Need of 4 does not apply. Class 1 roads must exist.

Table 4.--Percent of Grade and Drain Cost Required

    Grade and Drain costs include the cost for constructing a 
roadbed to an adequate standard and providing adequate drainage. 
Specifically it includes the necessary earthwork to build the 
roadbed to the required horizontal and vertical geometric parameters 
above the surrounding terrain and provide for proper drainage away 
from the foundation with adequate cross drains.
    Table 4 summarizes the percentage of grade and drain costs 
required based on the existing roadbed condition observed in an 
inventory update.

                               Table 4.--Percent of Grade and Drain Cost Required
----------------------------------------------------------------------------------------------------------------
                                                                                                  Percent grade
                                                                                                  and drain cost
                   Code                                      Roadbed condition                       required
                                                                                                    (Percent)
----------------------------------------------------------------------------------------------------------------
0........................................  Proposed Road.......................................              100
1........................................  Primitive Trail.....................................              100
2........................................  Bladed Unimproved Earth Road, Poor Drainage, Poor                 100
                                            Alignment.
3........................................  Minimum Built-up Roadbed (Shallow cuts and fills)                 100
                                            with inadequate drainage and alignment that
                                            generally follows existing ground.
4........................................  A designed and constructed roadbed with some                      100
                                            drainage and alignment improvements required.

[[Page 43125]]

 
5........................................  A roadbed constructed to the adequate standards with                0
                                            good horizontal and vertical alignment and proper
                                            drainage.
6........................................  A roadbed constructed to adequate standards with                    0
                                            curb and gutter on one side.
7........................................  A roadbed constructed to adequate standards with                    0
                                            curb and gutter on both sides.
----------------------------------------------------------------------------------------------------------------

Table 5.--Percent of Aggregate Surface Cost Required

    Table 5 summarizes the percentage of aggregate surface costs 
required based on all possible scenarios of existing surface type 
conditions and calculated future surface type.

                              Table 5.--Percent of Aggregate Surface Cost Required
----------------------------------------------------------------------------------------------------------------
                                                                                Future surface type
                                                                 -----------------------------------------------
                      Existing surface type                            Paved          Gravel           Earth
                                                                     (percent)       (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
Proposed........................................................             100             100              0.
Primitive.......................................................             100             100              0.
Earth...........................................................             100             100              0.
Gravel..........................................................             100            *100              0.
Bituminous < 2''................................................             100               0              0.
Bituminous > 2''................................................        0 or 100               0              0.
Concrete........................................................        0 or 100               0             0.
----------------------------------------------------------------------------------------------------------------
*If the Surface Condition Index (SCI) is 40 or less indicating that reconstruction will be required, then 100
  percent of the aggregate cost will be required. If greater than 40, then none of the aggregate cost will be
  applied.

Table 6.--Percent of Pavement Surface Cost Required

    Table 6 Summarizes the percentage of pavement surface costs for 
existing conditions required based on all possible scenarios of 
existing surface type conditions and calculated future surface type. 
Pavement overlays are calculated at 100 percent of the pavement 
costs.

                               Table 6.--Percent of Pavement Surface Cost Required
----------------------------------------------------------------------------------------------------------------
                                                                                Future surface type
                                                                 -----------------------------------------------
                      Existing surface type                            Paved          Gravel           Earth
                                                                     (percent)       (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
Proposed........................................................             100             100              0.
Primitive.......................................................             100             100              0.
Earth...........................................................             100             100              0.
Gravel..........................................................             100             100              0.
Bituminous < 2''................................................             100               0              0.
Bituminous > 2''................................................       *0 or 100               0              0.
Concrete........................................................       *0 or 100               0             0.
----------------------------------------------------------------------------------------------------------------
*If the Surface Condition Index (SCI) is 60 or less indicating that reconstruction will be required, then 100
  percent of the aggregate cost will be required. If greater than 60, then none of the aggregate cost will be
  applied.

Table 7.--Percent of Incidental Construction Cost Required

    Incidental cost items are generally required if a project 
includes construction or reconstruction of the roadbed. Some 
incidental items are included in all road improvement projects, 
while others are only required for specific projects. Table 7 
summarizes the incidental construction determination estimating 
procedure for each of the Roadbed Category Codes. As shown in Table 
4, roadbed condition codes 0 through 2 will require 65 percent of 
the incidental costs for construction because they generally will 
not require maintenance of traffic during construction. If 
maintenance of traffic is required as will generally be the case for 
roadbed condition codes 3 and 4, the minimum percentage of 
incidental costs for these roadbed condition codes will be 75 
percent. It is assumed that improvement roadbed condition codes 5, 6 
and 7 will primarily be paving projects with little or no earthwork 
involved and the minimum percentage of the total incidental 
construction cost for these projects will be 30 percent.

[[Page 43126]]



                           Table 7.--Percent of Incidental Construction Cost Required
----------------------------------------------------------------------------------------------------------------
                                                                                                  Maintenance of
                                                                                   New alignment      traffic
                   Code                              Roadbed condition               (percent)       required
                                                                                                     (percent)
----------------------------------------------------------------------------------------------------------------
0........................................  Proposed road........................              65             N/A
1........................................  Primitive trail......................              65             N/A
2........................................  Bladed unimproved earth road, poor                 65             N/A
                                            drainage, poor alignment.
3........................................  Minimum built-up roadbed (shallow                 N/A              75
                                            cuts and fills) with inadequate
                                            drainage and alignment that
                                            generally follows existing ground.
4........................................  A designed and constructed roadbed                N/A              75
                                            with some drainage and alignment
                                            improvements required.
5........................................  A roadbed constructed to the adequate             N/A              30
                                            standards with good horizontal and
                                            vertical alignment and proper
                                            drainage. Requiring surfacing.
6........................................  A roadbed constructed to adequate                 N/A              30
                                            standards with curb and gutter on
                                            one side. Requiring surfacing.
7........................................  A roadbed constructed to adequate                 N/A              30
                                            standards with curb and gutter on
                                            both sides. Requiring surfacing.
----------------------------------------------------------------------------------------------------------------

    Table 7 only accounts for those incidental construction costs 
normally found on a typical project. The construction items found in 
Table 8 may or may not be on any particular project and the cost of 
these items is 25 percent. Add the percentage required (from 0 to 25 
percent) based on the Regional recommendation with verification. If 
there are no additional items required, use the default of zero.

      Table 8.--Percent of Additional Incidental Construction Cost
------------------------------------------------------------------------
                                                            Percent of
                                                               total
         Additional incidental construction item            incidental
                                                           construction
                                                               cost
------------------------------------------------------------------------
Fencing.................................................               1
Landscaping.............................................               9
Structural concrete.....................................               9
Traffic signals.........................................               3
Utilities...............................................               3
------------------------------------------------------------------------

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

Transportation Planning


Sec.  170.400  What is the purpose of transportation planning?

    The purpose of transportation planning is to fulfill goals by 
developing strategies to meet transportation needs. These strategies 
address current and future land use, economic development, traffic 
demand, public safety, health, and social needs.


Sec.  170.401  What is BIA's role in transportation planning?

    Except as provided in Sec.  170.402, the functions and activities 
that BIA must perform for the IRR Program are:
    (a) Preparing the regional IRRTIP;
    (b) Updating the IRR Inventory from data updates;
    (c) Preparing IRR Inventory data updates as needed;
    (d) Coordinating with States and their political subdivisions, and 
appropriate planning authorities on regionally significant IRR 
projects;
    (e) Providing technical assistance to tribal governments;
    (f) Developing IRR Program budgets including transportation 
planning cost estimates;
    (g) Facilitating public involvement;
    (h) Participating in transportation planning and other 
transportation-related meetings;
    (i) Performing traffic studies;
    (j) Performing preliminary project planning;
    (k) Conducting special transportation studies;
    (l) Developing short and long-range transportation plans;
    (m) Mapping;
    (n) Developing and maintaining management systems;
    (o) Performing transportation planning for operational and 
maintenance facilities; and
    (p) Researching rights-of-way documents for project planning.


Sec.  170.402  What is the tribal role in transportation planning?

    (a) All tribes must prepare a tribal TIP (TTIP) or tribal priority 
list.
    (b) Tribes with a self-determination contract or self-governance 
agreement may assume any of the following planning functions:
    (1) Coordinating with States and their political subdivisions, and 
appropriate planning authorities on regionally significant IRR 
projects;
    (2) Preparing IRR Inventory data updates;
    (3) Facilitating public involvement;
    (4) Performing traffic studies;
    (5) Developing short- and long-range transportation plans;
    (6) Mapping;
    (7) Developing and maintaining tribal management systems;
    (8) Participating in transportation planning and other 
transportation related meetings;
    (9) Performing transportation planning for operational and 
maintenance facilities;
    (10) Developing IRR Program budgets including transportation 
planning cost estimates;
    (11) Conducting special transportation studies, as appropriate;
    (12) Researching rights-of-way documents for project planning; and
    (13) Performing preliminary project planning.


Sec.  170.403  What IRR Program funds can be used for transportation 
planning?

    Funds as defined in 23 U.S.C. 204(j) are specifically reserved for 
a tribal government's transportation planning. Tribes may also identify 
transportation planning as a priority in their tribal priority list or 
TTIP and request the use of up to 100 percent of their IRR Program 
construction funds for transportation planning.


Sec.  170.404  What happens when a tribe uses its IRR Program 
construction funds for transportation planning?

    In order for IRR Program construction funds to be concentrated on 
the projects within the inventory, a tribe may use up to $35,000 or 5 
percent of its IRR Program construction funds, whichever is greater, 
for transportation planning. If a tribe exceeds this threshold, BIA 
will subtract the amount over the threshold from the tribe's CTC for 
the following year.


Sec.  170.405  Can tribal transportation planning funds be used for 
road construction and other projects?

    Yes, any tribe can request to have its planning funds as defined in 
23 U.S.C. 204(j) transferred into construction funds for use on any 
eligible and

[[Page 43127]]

approved IRR project. (Also see Sec.  170.407.)


Sec.  170.406  How must tribes use planning funds?

    (a) IRR Program funds as defined in 23 U.S.C. 204(j) are only 
available upon request of a tribal government and approved by the BIA 
Regional Office. These funds support development and implementation of 
tribal transportation planning and associated strategies for 
identifying transportation needs, including:
    (1) Attending transportation planning meetings;
    (2) Pursuing other sources of funds; and
    (3) Developing the tribal priority list or any of the 
transportation functions/activities as defined in the FHWA IRR Program 
Transportation Planning Procedures and Guidelines (TPPG) or listed in 
Sec.  170.402.
    (b) A tribe may ask the BIA regional office to enter into a self-
determination contract or self-governance agreement for transportation 
planning activities and functions under ISDEAA or it may request a 
travel authorization to attend transportation planning functions and 
related activities using these funds. (See appendix A of subpart B for 
use of IRR Program Funds.)


Sec.  170.407  What happens to unobligated planning funds?

    Once all tribal governments' requests for tribal transportation 
planning funds have been satisfied for a given fiscal year or no later 
than August 15, the BIA regional office may use the remaining funds for 
construction after consultation with the affected tribal governments.

Long-Range Transportation Planning


Sec.  170.410  What is the purpose of tribal long-range transportation 
planning?

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


Sec.  170.411  What may a long-range transportation plan include?

    A comprehensive long-range transportation plan may include:
    (a) An evaluation of a full range of transportation modes and 
connections between modes such as highway, rail, air, and water, to 
meet transportation needs;
    (b) Trip generation studies, including determination of traffic 
generators due to land use;
    (c) Social and economic development planning to identify 
transportation improvements or needs to accommodate existing and 
proposed land use in a safe and economical fashion;
    (d) Measures that address health and safety concerns relating to 
transportation improvements;
    (e) A review of the existing and proposed transportation system to 
identify the relationships between transportation and the environment;
    (f) Cultural preservation planning to identify important issues and 
develop a transportation plan that is sensitive to tribal cultural 
preservation;
    (g) Scenic byway and tourism plans;
    (h) Measures that address energy conservation considerations;
    (i) A prioritized list of short and long-term transportation needs; 
and
    (j) An analysis of funding alternatives to implement plan 
recommendations.


Sec.  170.412  How is the tribal IRR long-range transportation plan 
developed and approved?

    (a) The tribal IRR long-range transportation plan is developed by:
    (1) A tribe working through a self-determination contract or self-
governance agreement or other funding sources; or
    (2) BIA upon request of, and in consultation with, a tribe. The 
tribe and BIA need to agree on the methodology and elements included in 
development of the IRR long-range transportation plan along with time 
frames before work begins.
    (b) During the development of the IRR long-range transportation 
plan, the tribe and BIA should jointly conduct a midpoint review.
    (c) The public reviews a draft IRR long-range transportation plan 
as required by Sec.  170.413. The plan is further refined to address 
any issues identified during the public review process. The tribe then 
approves the IRR long-range transportation plan.


Sec.  170.413  What is the public role in developing the long-range 
transportation plan?

    BIA or the tribe must solicit public involvement. If there are no 
tribal policies regarding public involvement, a tribe must use the 
procedures shown below. Public involvement begins at the same time 
long-range transportation planning begins and covers the range of 
users, from stakeholders and private citizens to major public and 
private entities. Public involvement may be handled in either of the 
following two ways:
    (a) For public meetings, BIA or a tribe must:
    (1) Advertise each public meeting in local public newspapers at 
least 15 days before the meeting date. In the absence of local public 
newspapers, BIA or the tribe may post notices under local acceptable 
practices;
    (2) Provide at the meeting copies of the draft long-range 
transportation plan;
    (3) Provide information on funding and the planning process; and
    (4) Provide the public the opportunity to comment, either orally or 
in writing.
    (b) For public notices, BIA or a tribe must:
    (1) Publish a notice in the local and tribal newspapers when the 
draft long-range transportation plan is complete. In the absence of 
local public newspapers, BIA or the tribe may post notices under local 
acceptable practices; and
    (2) State in the notice that the long-range transportation plan is 
available for review, where a copy can be obtained, whom to contact for 
questions, where comments may be submitted, and the deadline for 
submitting comments (normally 30 days).


Sec.  170.414  How is the tribal long-range transportation plan used 
and updated?

    The tribal government uses its IRR long-range transportation plan 
in its development of a tribal priority list or TTIP. To be consistent 
with State and MPO planning practices, the tribe or BIA (for direct 
service tribes) should:
    (a) Review the IRR long-range transportation plan annually; and
    (b) Update the plan every 5 years.


Sec.  170.415  What is pre-project planning?

    (a) Pre-project planning is part of overall transportation planning 
and includes the activities conducted before final project approval on 
the IRR Transportation Improvement Program (IRRTIP). These activities 
include;
    (1) Preliminary project cost estimates;
    (2) Certification of public involvement;
    (3) Consultation and coordination with States and/or MPO's for a 
regionally significant projects;
    (4) Preliminary needs assessments; and
    (5) Preliminary environmental and archeological reviews.
    (b) The BIA regional office must work cooperatively with tribal, 
state, regional, and metropolitan transportation planning organizations 
concerning the

[[Page 43128]]

leveraging of funds from non-IRR Program sources and identification of 
other funding sources to expedite the planning, design, and 
construction of projects on the IRRTIP.

Transportation Improvement Program


Sec.  170.420  What is the tribal priority list?

    The tribal priority list is a list of all transportation projects 
that the tribe wants funded. The list:
    (a) May or may not identify projects in order of priority;
    (b) Is not financially constrained; and
    (c) Is provided to BIA by official tribal action, unless the tribal 
government submits a Tribal Transportation Improvement Program (TTIP).


Sec.  170.421  What is the Tribal Transportation Improvement Program 
(TTIP)?

    The TTIP:
    (a) Must be consistent with the tribal long-range transportation 
plan;
    (b) Must contain all IRR Program funded projects programmed for 
construction in the next 3 to 5 years;
    (c) Must identify the implementation year of each project scheduled 
to begin within the next 3 to 5 years;
    (d) May include other Federal, State, county, and municipal, 
transportation projects initiated by or developed in cooperation with 
the tribal government;
    (e) Will be reviewed and updated as necessary by the tribal 
government;
    (f) Can be changed only by the tribal government; and
    (g) Must be forwarded to BIA by resolution or by tribally 
authorized government action for inclusion into the IRRTIP.


Sec.  170.422  What is the IRR Transportation Improvement Program 
(IRRTIP)?

    The IRRTIP:
    (a) Is financially constrained;
    (b) Must include eligible projects from tribal TTIPs;
    (c) Is selected by tribal governments from TTIPs or other tribal 
actions;
    (d) Is organized by year, State, and tribe; and
    (e) May include non-IRR projects for inclusion into the State 
Transportation Improvement Program (STIP).


Sec.  170.423  How are projects placed on the IRRTIP?

    (a) BIA selects projects from the TTIP or tribal priority list for 
inclusion on the IRRTIP as follows:
    (1) The tribal government develops a list of detailed tasks and 
information for each project from the tribal priority list or TTIP;
    (2) BIA includes this project information in its region-wide 
control schedule without change, unless the funding required exceeds 
the amount available to the tribe;
    (3) BIA must include projects that are scheduled in the next 3 to 5 
years; and
    (4) BIA develops the IRRTIP after consulting with the tribes and 
taking their priorities into account.
    (b) A tribe that does not generate enough annual funding under the 
IRR Program funding formula to complete a project may either:
    (1) Submit its tribal priority list to the appropriate BIA Region, 
which will develop the region-wide control schedule after consulting 
with the tribe and taking its priorities into account; or
    (2) Enter a consortium of tribes and delegate authority to the 
consortium to develop the TTIP and tribal control schedule;
    (3) Enter into agreement with other tribes to permit completion of 
the project; or
    (4) Apply for IRRHPP funding under subpart C.
    (c) In order to get a project on the IRRTIP, tribes may seek 
flexible financing alternatives as described in subpart C.


Sec.  170.424  How does the public participate in developing the 
IRRTIP?

    Public involvement is required in the development of the IRRTIP.
    (a) BIA or the tribe must publish a notice in local and tribal 
newspapers when the draft tribal or IRRTIP is complete. In the absence 
of local public newspapers, the tribe or BIA may post notices under 
local acceptable practices. The notice must indicate where a copy can 
be obtained, contact person for questions, where comments may be 
submitted, and the deadline for submitting comments.
    (b) BIA or the tribe may hold public meetings at which the public 
may comment orally or in writing.
    (c) BIA, the tribe, the State transportation agency or MPO may 
conduct public involvement activities.


Sec.  170.425  How does BIA update the IRRTIP?

    The IRRTIP annual update allows incorporation of transportation 
projects planned for the next 3 to 5 years. Each BIA regional office 
updates the IRRTIP for each State in its service area to reflect 
changes in the TTIPs or tribal project listings.
    (a) During the first quarter of the fiscal year each BIA Regional 
Office notifies tribes of the update and provides projected IRR Program 
funding amounts and a copy of the previous year's regional IRRTIP.
    (b) The tribe reviews any new transportation planning information, 
priority lists, and TTIP and forwards an updated TTIP or project 
listing to BIA Regional Office on or before July 15.
    (c) The BIA regional office reviews all submitted information with 
the tribes. BIA adds agreed-upon updates, including previously approved 
amendments (see Sec.  170.427), to the IRRTIP so that the Secretaries 
can approve the new updated IRRTIP before the start of the next fiscal 
year.


Sec.  170.426  What is the approval process for the IRRTIP?

    The approval process for the IRRTIP is:
    (a) The BIA Regional Office forwards the IRRTIP to the Secretaries 
for review and approval;
    (b) Federal Lands Highway Office will provide copies of the 
approved IRRTIP to the FHWA division office for transmittal to the 
State transportation agency for inclusion in the State Transportation 
Improvement Program (STIP). The approved IRRTIP will be returned to 
BIA;
    (c) BIA sends copies of the approved IRRTIP to BIA Regional Offices 
and tribal governments; and
    (d) Within 10 working days of receiving the approved IRRTIP and IRR 
Program funds, BIA enters the projects into the Federal finance system.


Sec.  170.427  How may an IRRTIP be amended?

    (a) A tribe may amend the IRRTIP by changing its TTIP on or before 
July 15 and submitting the changed TTIP to BIA for inclusion in the 
IRRTIP. BIA's regional office will review all submitted information 
with the tribe and provide a written response (approving, denying, or 
requesting additional information) within 45 days. If the proposed 
IRRTIP amendment contains a project not listed on the current approved 
IRRTIP, BIA must submit the proposed amendment to FHWA for final 
approval.
    (b) BIA may amend the IRRTIP:
    (1) To add or delete projects or reflect significant changes in 
scope at any time if requested by the tribe; and
    (2) To reduce funding or reschedule a project after consulting with 
the affected tribe and obtaining its consent, if practical.
    (c) The Secretary may not reduce funding for or reschedule a 
project that is the subject of a negotiated agreement, except under the 
terms of the agreement.
    (d) BIA amends the IRRTIP using the same public involvement process 
used to develop the original IRRTIP.

[[Page 43129]]

Sec.  170.428  How is the State Transportation Improvement Program 
related to the IRRTIP?

    The annual update of the IRRTIP for each State in a BIA regional 
office's service area should be coordinated with the State 
transportation agencies. This will ensure that approved IRRTIP updates 
and amendments are included with the STIP.

Public Hearings


Sec.  170.435  How does BIA or the tribe determine the need for a 
public hearing?

    The tribe, or BIA after consultation with the appropriate tribe and 
other involved agencies, determines whether or not a public hearing is 
needed for an IRRTIP, long-range transportation plan or project. A 
public hearing must be held if a project:
    (a) Is a new route or facility;
    (b) Would significantly change the layout or function of connecting 
or related roads or streets;
    (c) Would cause a substantial adverse effect on adjacent property; 
or
    (d) Is controversial or expected to be controversial in nature.


Sec.  170.436  How are public hearings for IRR planning and projects 
funded?

    (a) Public hearings for IRR planning are funded as follows:
    (1) Public hearings for TTIPS and long-range transportation plans 
conducted by tribes are funded using the funds defined in title 23 
U.S.C. 204(j) or IRR Program construction funds; and
    (2) Public hearings for a tribe's long-range transportation plan 
conducted by BIA at the tribe's request are funded using the tribes' 
funds as defined in title 23 U.S.C. 204(j) or IRR Program construction 
funds.
    (b) Public hearings for IRR projects conducted by either tribes or 
BIA are funded using IRR Program construction funds.


Sec.  170.437  How must BIA or a tribe inform the public when no 
hearing is held?

    (a) When no public hearing for an IRR project is scheduled, either 
the tribe or BIA must give adequate notice to the public before project 
activities are scheduled to begin. The notice should include:
    (1) Project location;
    (2) Type of improvement planned;
    (3) Dates and schedule for work;
    (4) Name and address where more information is available; and
    (5) Provisions for requesting a hearing.
    (b) If the work is not to be performed by the tribe, BIA must send 
a copy of the notice to the affected tribe.


Sec.  170.438  How must BIA or a tribe inform the public when a hearing 
is held?

    When BIA or a tribe holds a hearing under this part, it must notify 
the public of the hearing by publishing a notice.
    (a) The public hearing notice is a document containing:
    (1) Date, time, and place of the hearing;
    (2) Planning activities or project location;
    (3) Proposed work to be done, activities to be conducted, etc.;
    (4) Where preliminary plans, designs or specifications may be 
reviewed; and
    (5) How and where to get more information.
    (b) BIA or the tribe must publish the notice:
    (1) By posting and/or publishing the notice at least 30 days before 
the public hearing. A second notice for a hearing is optional; and,
    (2) By sending a courtesy copy of the notice to the affected 
tribe(s) and BIA Regional Office.


Sec.  170.439  How is a public hearing conducted?

    (a) Who conducts the hearing. A tribal or Federal official is 
appointed to preside over the public hearing. The official presiding 
over the hearing must maintain a free and open discussion of the 
issues.
    (b) Record of hearing. The presiding official is responsible for 
compiling the official record of the hearing. A record of a hearing is 
a summary of oral testimony and all written statements submitted at the 
hearing. Additional written comments made or provided at the hearing, 
or within 5 working days of the hearing, will be made a part of the 
record.
    (c) Hearing process.
    (1) The presiding official explains the purpose of the hearing and 
provides an agenda;
    (2) The presiding official solicits public comments from the 
audience on the merits of IRR projects and activities; and
    (3) The presiding official informs the hearing audience of the 
appropriate procedures for a proposed IRR project or activity, that may 
include, but are not limited to:
    (i) Project development activities;
    (ii) Rights-of-way acquisition;
    (iii) Environmental and archeological clearance;
    (iv) Relocation of utilities and relocation services;
    (v) Authorized payments allowed by the Uniform Relocation and Real 
Property Acquisition Policies Act, 42 U.S.C. 4601 et seq., as amended;
    (vi) Draft transportation plan; and
    (vii) The scope of the project and its effect on traffic during and 
after construction.
    (d) Availability of information. Appropriate maps, plats, project 
plans and specifications will be available at the hearing for public 
review. Appropriate officials are present to answer questions.
    (e) Opportunity for comment. Comments are received as follows:
    (1) Oral statement at the hearing;
    (2) Written statement submitted at the hearing;
    (3) Written statement sent to the address noted in the hearing 
notice within 5 working days following the public hearing.


Sec.  170.440  How can the public learn the results of a public 
hearing?

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


Sec.  170.441  Can a decision resulting from a hearing be appealed?

    Yes. A decision resulting from the public hearing may be appealed 
pursuant to 25 CFR part 2.

IRR Inventory


Sec.  170.442  What is the IRR Inventory?

    (a) The IRR Inventory is a comprehensive database of all 
transportation facilities eligible for IRR Program funding by tribe, 
reservation, BIA agency and region, Congressional district, State, and 
county. Other specific information collected and maintained under the 
IRR Program includes classification, route number, bridge number, 
current and future traffic volumes, maintenance responsibility, and 
ownership.
    (b) Elements of the inventory are used in the Relative Need 
Distribution Factor. BIA or tribes can also use the inventory to assist 
in transportation and project planning, justify expenditures, identify 
transportation needs, maintain existing IRR transportation facilities, 
and develop management systems.


Sec.  170.443  How can a tribe list a proposed transportation facility 
in the IRR Inventory?

    A proposed IRR transportation facility is any transportation 
facility, including a highway bridge, that will serve public

[[Page 43130]]

transportation needs, is eligible for construction under the IRR 
Program and does not currently exist. To be included in the IRR 
inventory, a proposed transportation facility must:
    (a) Be supported by a tribal resolution or other official tribal 
authorization;
    (b) Address documented transportation needs as developed by and 
identified in tribal transportation planning efforts, such as the long-
range transportation plan;
    (c) Be eligible for IRR Program funding; and
    (d) Be open to the public when built.


Sec.  170.444  How is the IRR Inventory updated?

    The IRR Inventory data for a tribe is updated on an annual basis as 
follows:
    (a) Each BIA Regional Office provides the tribes in its region 
copies of the IRR Inventory by November 1st of each year;
    (b) The tribe reviews the data and submits changes (together with a 
strip map of each change) to the BIA Regional Office along with 
authorizing resolutions or similar official authorization by March 15;
    (c) The BIA Regional Office reviews each tribe's submission for 
errors or omissions and provides the tribe with its revised inventory 
by May 15;
    (d) The tribe must correct any errors or omissions by June 15;
    (e) Each BIA Regional Office certifies its data and enters the data 
into the IRR Inventory by July 15;
    (f) BIA provides each tribe with copies of the Relative Need 
Distribution Factor distribution percentages by August 15; and
    (g) BIADOT approves submissions from BIA Regional Offices before 
they are included in the National IRR Inventory.


Sec.  170.445  What is a strip map?

    A strip map is a graphic representation of a section of road or 
other transportation facility being added to or modified in the IRR 
Inventory. Each strip map submitted with an IRR Inventory change must:
    (a) Define the facility's location with respect to State, county, 
tribal, and congressional boundaries;
    (b) Define the overall dimensions of the facility and the 
accompanying inventory data;
    (c) Include a table that provides the IRR Inventory information 
about the transportation facility.

Environmental and Archeological Requirements


Sec.  170.450  What archeological and environmental requirements must 
the IRR Program meet?

    (a) The archeological and environmental requirements with which BIA 
must comply on the IRR Program are contained in Appendix A to this 
subpart.
    (b) The archeological and environmental requirements for tribes 
that enter into self-determination contracts or self-governance 
agreements for the IRR Program are in 25 CFR 900.125 and 1000.243.


Sec.  170.451  Can IRR Program funds be used for archeological and 
environmental compliance?

    Yes. For approved IRR projects, IRR Program funds can be used for 
environmental and archeological work consistent with 25 CFR 
900.125(c)(6) and (c)(8) and 25 CFR 1000.243(b) and applicable tribal 
laws for:
    (a) Road and bridge rights-of-way;
    (b) Borrow pits and aggregate pits associated with IRR activities 
staging areas;
    (c) Limited mitigation outside of the construction limits as 
necessary to address the direct impacts of the construction activity as 
determined in the environmental analysis and after consultation with 
the affected tribe(s) and the appropriate Secretary(s); and
    (d) Construction easements.

Design


Sec.  170.454  What design standards are used in the IRR Program?

    (a) Appendix B to this subpart lists design standards that BIA may 
use for the IRR program.
    (b) BIA may also use FHWA-approved State or tribal design 
standards.
    (c) Tribes may propose road and bridge design standards to be used 
in the IRR Program that are consistent with or exceed applicable 
Federal standards. The standards may be negotiated between BIA and the 
tribe and included in a self-determination contract or self-governance 
agreement.


Sec.  170.455  How are design standards used in IRR projects?

    The standards in this section must be applied to each construction 
project consistent with a minimum 20-year design life for highway 
projects and 75-year design life for highway bridges. The design of IRR 
projects must take into consideration:
    (a) The existing and planned future use of the IRR transportation 
facility in a manner that is conducive to safety, durability, and 
economy of maintenance;
    (b) The particular needs of each locality, and the environmental, 
scenic, historic, aesthetic, community, and other cultural values and 
mobility needs in a cost-effective manner; and
    (c) Access and accommodation for other modes of transportation.


Sec.  170.456  When can a tribe request an exception from the design 
standards?

    A tribe can request an exception from the design standards in 
Appendix B of this subpart under the conditions in this section. The 
tribe must submit its request for a design exception to the BIA 
Regional Office for approval. If the BIA Regional Office has design 
exception approval authority within their IRR Stewardship Plan with 
FHWA, they may approve or decline the request; otherwise BIA forwards 
the request to FHWA. The engineer of record must submit written 
documentation with appropriate supporting data, sketches, details, and 
justification based on engineering analysis.
    (a) FHWA or BIA may grant exceptions for:
    (1) Experimental features on projects; and
    (2) Projects where conditions warrant that exceptions be made.
    (b) FHWA or BIA can approve a project design that does not conform 
to the minimum criteria only after giving due consideration to all 
project conditions, such as:
    (1) Maximum service and safety benefits for the dollar invested;
    (2) Compatibility with adjacent features; and
    (3) Probable time before reconstruction of the project due to 
changed conditions or transportation demands.
    (c) FHWA or BIA have 30 days from receiving the request to approve 
or decline the exception.


Sec.  170.457  Can a tribe appeal a denial?

    Yes. If BIA denies a design exception request made by a tribe, the 
decision may be appealed to FHWA. Tribes may appeal the denial of a 
design exception to: FHWA, 400 7th St., SW., HFL-1, Washington, DC 
20590. If FHWA denies a design exception, the tribe may appeal the 
decision to the next higher level of review within the Department of 
Transportation at the Office of the FHWA Administrator, 400 7th Street, 
SW., HOA-1, Washington, DC 20590.

[[Page 43131]]

Review and Approval of Plans, Specifications, and Estimates


Sec.  170.460  What must a project package include?

    (a) The minimum requirements for a project package are:
    (1) Plans;
    (2) Specifications; and
    (3) Estimates.
    (b) In order to receive project approval the following additional 
items are required:
    (1) A tribal resolution or other authorized document supporting the 
project;
    (2) Right-of-way clearances;
    (3) Required environmental, archeological, and cultural clearances; 
and
    (4) Identification of design exceptions if used in the plans.
    (c) A tribe may include additional items at its option.


Sec.  170.461  May a tribe approve plans, specifications, and 
estimates?

    A tribe may review and approve plan, specification, and estimate 
(PS&E) project packages for IRR Program funded projects when:
    (a) This function is included in the tribe's self-determination 
contract or self-governance agreement; or
    (b) The tribe is the owner of the IRR transportation facility or is 
responsible for maintaining the facility. In this case, the tribe must 
have at least 30 days to review and approve the proposed PS&E package.


Sec.  170.462  When may a self-determination contract or self-
governance agreement include PS&E review and approval?

    (a) For a BIA or tribally-owned facility, the tribe may assume 
responsibility to review and approve PS&E packages under a self-
determination contract or self-governance agreement if the tribe 
specifies in the contract or agreement that:
    (1) A licensed professional engineer will supervise design and 
approval of the PS&E package;
    (2) A licensed professional engineer will certify that the PS&E 
meets or exceeds the design, health, and safety standards in appendix B 
to subpart D for an IRR transportation facility;
    (3) An additional licensed professional engineer (either a BIA 
engineer or, if the tribe chooses, a non-BIA engineer) will review the 
PS&E package when it is at least 95 percent complete; and
    (4) If the project is to be performed by the tribe, the tribe will 
provide a copy of the certification and approved PS&E package to BIA 
before the solicitation of the project or notice to proceed.
    (b) For a facility maintained by a public authority other than BIA 
or a tribe, in addition to satisfying the requirements of paragraph (a) 
of this section:
    (1) The public authority must have a chance to review and approve 
the PS&E when it is between 75 percent and 95 percent complete, unless 
an agreement between the tribe and the public authority states 
otherwise;
    (2) If a licensed professional engineer performs the review and 
approval when the PS&E provided is at least 95 percent complete, the 
second level review requirement in paragraph (a)(2) of this section is 
satisfied; and
    (3) The tribe must allow the public authority at least 30 days for 
review and approval. If the public authority does not meet this 
deadline or an extension granted by the tribe, the tribe may proceed 
with the review in accordance with paragraph (a)(2) of this section.
    (c) If a BIA engineer does not complete a review within 30 days 
under paragraph (a)(2) of this section, the tribe may contract its own 
engineer to perform the review.


Sec.  170.463  What should the Secretary do if a design deficiency is 
identified?

    If a review under Sec.  170.462 identifies a design deficiency that 
may jeopardize public health and safety if the facility is completed, 
the Secretary must:
    (a) For a tribally-approved PS&E package, immediately notify the 
tribe of the design deficiency and request that the tribe promptly 
resolve the deficiency in accordance with the standards in appendix B 
to subpart D; and
    (b) For a BIA-approved PS&E package, promptly resolve the 
deficiency in accordance with the standards in appendix B to subpart D 
and notify the tribe of the required design changes.

Construction and Construction Monitoring


Sec.  170.470  What are the IRR construction standards?

    (a) Appendix B to this subpart lists design standards that may be 
used for roads and bridges.
    (1) Tribes may propose road and highway bridge construction 
standards that are consistent with or exceed these standards.
    (2) BIA may also use FHWA-approved, State or tribal road and 
highway bridge construction standards.
    (b) For designing and building eligible intermodal projects funded 
by the IRR Program, tribes must use either:
    (1) Nationally recognized standards for comparable projects; or
    (2) Tribally adopted standards that meet or exceed nationally 
recognized standards for comparable projects.


Sec.  170.471  How are projects administered?

    (a) When a tribe carries out an IRR project under ISDEAA, BIA will 
monitor performance under the requirements of 25 CFR 900.130 and 
900.131(b)(9) or 25 CFR 1000.243 and 1000.249(c) and (e), as 
appropriate. If BIA discovers a problem during an on-site monitoring 
visit, BIA must promptly notify the tribe and, if asked, provide 
technical assistance.
    (b) BIA or the tribal government, as provided for under the 
contract or agreement, is responsible for day-to-day project 
inspections except for BIA monitoring under paragraph (a) of this 
section.
    (c) BIA must process substantial changes in the scope of a 
construction project in coordination with the affected tribe.
    (d) The tribe, other contractors, and BIA may perform quality 
control.
    (e) Only the licensed professional engineer may change an IRR 
project's plans, specifications, and estimates (PS&E) during 
construction.
    (1) For substantial changes, the original approving agency must 
review the change. The approving agency is the Federal, tribal, State, 
or local entity with PS&E approval authority over the project.
    (2) In making any substantial change, the approving agency must 
consult with the affected tribe and the entity having maintenance 
responsibility.
    (3) A change that exceeds the limits of available funding may be 
made only with the approving agency's consent.


Sec.  170.472  What construction records must tribes and BIA keep?

    The following table shows which IRR construction records BIA and 
tribes must keep and the requirements for access.

[[Page 43132]]



------------------------------------------------------------------------
                              Records that must be
        Record keeper                 kept                 Access
------------------------------------------------------------------------
(a) Tribe...................  All records required  BIA is allowed
                               by ISDEAA and 25      access to tribal
                               CFR 900.130-131 or    IRR construction
                               25 CFR 1000.243 and   records as required
                               1000.249, as          under 25 CFR
                               appropriate.          900.130, 900.131 or
                                                     25 CFR 1000.243 and
                                                     1000.249, as
                                                     appropriate.
(b) BIA.....................  Completed daily       Upon reasonable
                               reports of            advance request by
                               construction          a tribe, BIA must
                               activities            provide reasonable
                               appropriate to the    access to records.
                               type of
                               construction it is
                               performing.
------------------------------------------------------------------------

Sec.  170.473  What happens when a construction project ends?

    (a) At the end of a construction project, the agency or 
organization responsible for the project must make a final inspection. 
The inspection determines whether the project has been completed in 
reasonable conformity with the PS&E.
    (1) Appropriate officials from the tribe, BIA, and FHWA should 
participate in the inspection, as well as contractors and maintenance 
personnel.
    (2) All project information must be made available during final 
inspection and used to develop the IRR construction project closeout 
report. Some examples of project information are: Daily diaries, weekly 
progress reports, subcontracts, subcontract expenditures, salaries, 
equipment expenditures, as-built drawings, etc.
    (b) An IRR construction project closeout is the final accounting of 
all IRR construction project expenditures. It is the closing of the 
financial books of the Federal Government for that construction 
project. Closeout occurs after:
    (1) The final project inspection concludes; and
    (2) The facility owner makes final acceptance of the project.


Sec.  170.474  Who conducts the project closeout?

    The following table shows who must conduct the IRR construction 
project closeout and develop the report.

----------------------------------------------------------------------------------------------------------------
 If the project was completed by . . .            then . . .               and the closeout report must . . .
----------------------------------------------------------------------------------------------------------------
(a) BIA...............................  The regional engineer or        (1) Summarize the construction project
                                         designee is responsible for     records to ensure compliance
                                         closing out the project and     requirements have been met;
                                         preparing the report.          (2) Review the bid item quantities and
                                                                         expenditures to ensure reasonable
                                                                         conformance with the PS&E and
                                                                         modifications;
                                                                        (3) Be completed within 120 calendar
                                                                         days of the date of acceptance of the
                                                                         IRR. construction project; and
                                                                        (4) Be provided to the affected tribes
                                                                         and the Secretaries.
(b) A tribe...........................  Agreements negotiated under     (1) Meet the requirements of ISDEAA;
                                         ISDEAA specify who is          (2) Comply with 25 CFR 900.130(d) and
                                         responsible for closeout and   131(b) (10) and 25 CFR 1000.249, as
                                         preparing the report.           applicable;
                                                                        (3) Be completed within 120 calendar
                                                                         days of the date of acceptance of the
                                                                         project; and
                                                                        (4) Be provided to all parties specified
                                                                         in the agreements negotiated under
                                                                         ISDEAA.
----------------------------------------------------------------------------------------------------------------

Program Reviews and Management Systems


Sec.  170.500  What program reviews do the Secretaries conduct?

    (a) BIADOT and FHWA annually conduct informal program reviews to 
examine program procedures and identify improvements. BIA must notify 
tribes of these informal program reviews. Tribes may send 
representatives to these meetings at their own expense. These reviews 
may be held in conjunction with either a national BIA transportation 
meeting or an IRR Program Coordinating Committee meeting.
    (b) FHWA, BIA, and affected tribes periodically conduct an IRR 
Program process review of each BIA regional office's processes, 
controls, and stewardship. The review provides recommendations to 
improve the processes and controls of the following activities that a 
BIA Regional Office performs:
    (1) Program Management and Oversight;
    (2) Transportation planning;
    (3) Design;
    (4) Contract administration;
    (5) Construction;
    (6) Financial management; and
    (7) Systems management and existing stewardship agreements.
    (c) After the IRR process review, the review team must:
    (1) Conduct an exit interview during which it makes a brief oral 
report of findings and recommendations to the BIA Regional Director and 
staff; and
    (2) Provide a written report of its findings and recommendations to 
the reviewed office, BIA, all participants, and affected tribal 
governments and organizations.


Sec.  170.501  What happens when the review process identifies areas 
for improvement?

    When the review process identifies areas for improvement:
    (a) The regional office must develop a corrective action plan;
    (b) BIADOT and FHWA review and approve the plan;
    (c) FHWA may provide technical assistance during the development 
and implementation of the plan; and
    (d) The reviewed BIA regional office implements the plan and 
reports either annually or biennially to BIADOT and FHWA on 
implementation accomplishments.


Sec.  170.502  Are management systems required for the IRR Program?

    (a) To the extent appropriate, the Secretaries must, in 
consultation with tribes, develop and maintain the following systems 
for the IRR Program:
    (1) Pavement management;
    (2) Safety management;
    (3) Bridge management; and
    (4) Congestion management.
    (b) Other management systems may include the following:
    (1) Public transportation facilities;
    (2) Public transportation equipment; and
    (3) Intermodal transportation facilities and systems.

[[Page 43133]]

    (c) All management systems for the IRR Program must meet the 
requirements of 23 CFR part 973.
    (d) A tribe may enter into an ISDEAA contract or agreement to 
develop, implement, and maintain an alternative tribal management 
system for that tribe, provided that such systems are consistent with 
Federal management systems.


Sec.  170.503  How are IRR Program management systems funded?

    BIA uses IRR Program management funds to develop the nationwide IRR 
Program management systems. If a tribe elects to develop its own tribal 
management system based on the nationwide management system 
requirements in 23 CFR part 973, it may use for this purpose either:
    (a) The funds defined in 23 U.S.C. 204(j) for IRR Program tribal 
transportation planning; or
    (b) IRR Program construction funds.

Bridge Inspection


Sec.  170.504  When and how are bridge inspections performed?

    IRR bridge inspections must be performed at least every 2 years to 
update the NBI using criteria that meets or exceeds applicable Federal 
standards (23 CFR 650.305).
    (a) Federal standards for bridge inspections are found in 23 CFR 
part 650, subpart C.
    (b) Tribes may develop alternative bridge inspection standards, 
provided that these standards meet or exceed applicable Federal 
standards.


Sec.  170.505  How must bridge inspections be coordinated?

    This section applies to bridge inspectors working for BIA; for 
tribes under an ISDEAA contract or self-governance agreement; or for 
State, county, or local governments. Before performing an inspection, 
inspectors must:
    (a) Notify affected tribes and State and local governments that an 
inspection will occur;
    (b) Offer tribal and State and local governments the opportunity to 
accompany the inspectors; and
    (c) Otherwise coordinate with tribal and State and local 
governments.


Sec.  170.506  What are the minimum qualifications for certified bridge 
inspectors?

    The person responsible for the bridge inspection team must meet the 
qualifications for bridge inspectors as defined in 23 CFR part 650, 
subpart C.


Sec.  170.507  Who reviews bridge inspection reports?

    The person responsible for the bridge inspection team must send a 
copy of the inspection report to the BIA regional office. The regional 
office:
    (a) Reviews the report and furnishes a copy to the affected tribe 
for review, comment, and use in programming transportation projects; 
and
    (b) Sends the report to BIADOT for quality assurance and inclusion 
in the National Bridge Inventory (NBI).

Appendix A to Subpart D--Cultural Resource and Environmental 
Requirements for the IRR Program

    All BIA work for the IRR Program must comply with cultural 
resource and environmental requirements under applicable Federal 
laws and regulations, including, but not limited to:
    1. 16 U.S.C. 1531, Endangered Species Act.
    2. 16 U.S.C. 4601, Land and Water Conservation Fund Act (Section 
6(f)).
    3. 16 U.S.C. 661-667d, Fish and Wildlife Coordination Act.
    4. 23 U.S.C. 138, Preservation of Parklands.
    5. 25 U.S.C. 3001-3013, Native American Graves Protection and 
Repatriation Act.
    6. 33 U.S.C. 1251, Federal Water Pollution Control Act and Clean 
Water Act.
    7. 42 U.S.C. 7401, Clean Air Act.
    8. 42 U.S.C. 4321, National Environmental Policy Act.
    9. 49 U.S.C. 303, Preservation of Parklands.
    10. 7 U.S.C. 4201, Farmland Protection Policy Act.
    11. 50 CFR part 402, Endangered Species Act regulations.
    12. 7 CFR part 658, Farmland Protection Policy Act regulations.
    13. 40 CFR part 93, Air Quality Conformity and Priority 
Procedures for use in Federal-aid Highway and Federally-Funded 
Transit Programs.
    14. 23 CFR part 771, Environmental Impact and Related 
Procedures.
    15. 23 CFR part 772, Procedures for Abatement of Highway Traffic 
Noises and Construction Noises.
    16. 23 CFR part 777, Mitigation of Impacts To Wetlands and 
Natural Habitat.
    17. 36 CFR part 800, Protection of Historic Properties.
    18. 40 CFR parts 260-271, Resource Conservation and Recovery 
Act.
    19. Applicable tribal/State laws.
    20. Other applicable Federal laws and regulations.

Appendix B to Subpart D--Design Standards for the IRR Program

    Depending on the nature of the project, tribes may use the 
following design standards. Additional standards may also apply. To 
the extent that any provisions of these standards are inconsistent 
with ISDEAA, these provisions do not apply.
    1. AASHTO Policy on Geometric Design of Highways and Streets.
    2. AASHTO A Guide for Transportation Landscape and Environmental 
Design.
    3. AASHTO Roadside Design Guide, latest edition.
    4. AASHTO Guide for Selecting, Locating and Designing Traffic 
Barriers, latest edition.
    5. AASHTO Standard Specifications for Highway Bridges, latest 
edition.
    6. AASHTO Guidelines of Geometric Design of Very Low-Volume 
Local Roads (ADT less than or equal to 400).
    7. FHWA Federal Lands Highway, Project Development and Design 
Manual.
    8. FHWA Flexibility in Highway Design.
    9. FHWA Roadside Improvements for Local Road and Streets.
    10. FHWA Improving Guardrail Installations and Local Roads and 
Streets.
    11. 23 CFR part 625, Design Standards for Highways.
    12. 23 CFR part 630, Preconstruction Procedures.
    13. 23 CFR part 633, Required Contract Provisions.
    14. 23 CFR part 635, Construction and Maintenance.
    15. 23 CFR part 645, Utilities.
    16. 23 CFR part 646, Railroads.
    17. 23 U.S.C. 106, PS&E.
    18. 23 U.S.C. 109, Standards.
    19. DOT Metric Conversion Plan, October 31, 1991.
    20. MUTCD Manual of Uniform Traffic Safety Devices, latest 
edition.
    21. Standard Specifications for Construction of Roads and 
Bridges on Federal Highway Projects, latest edition.

Subpart E--Service Delivery for Indian Reservation Roads

Funding Process


Sec.  170.600  What must BIA include in the notice of availability of 
funds?

    (a) Upon receiving the total fiscal year of IRR Program funding 
from FHWA, BIA will publish a notice of availability of funds in the 
Federal Register that includes the following:
    (1) The total funding available to each region for IRR 
transportation planning, design, and construction projects based on 
each region's Relative Need Distribution Factor (RNDF) defined in 
subpart C;
    (2) The total funding available to each tribe based on its RNDF, 
along with prior year information on IRR Program funding by tribe that 
identifies over-funded or advance-funded tribes; and
    (3) A listing of FHWA-approved IRRTIP projects for each State 
within each BIA region.
    (b) Upon publication of the notice under this section, each BIA 
Regional Office must provide to each tribe within its region:
    (1) A proposed project listing used to develop the region's control 
schedule;
    (2) An offer to provide the tribe with technical assistance in 
preparing contract proposals;
    (3) The various options available to the tribe for IRR construction 
projects

[[Page 43134]]

(force account methods, direct service, self-determination contract, 
and self-governance agreement); and
    (4) A request for a response from the tribe within 30 days.


Sec.  170.601  What happens to the unused portion of IRR Program 
management and oversight funds reserved by the Secretary?

    BIA distributes any unused IRR Program management and oversight 
funds to its Regional Offices using the RNDF (see subpart C). The 
Regional Offices use the funds for additional construction activities.


Sec.  170.602  If a tribe incurs unforeseen construction costs, can it 
get additional funds?

    Yes. To the extent feasible, the Secretary must pay for all costs 
incurred resulting from unforeseen circumstances of the construction 
process (i.e., cost overruns). If the Secretary is unable to fund the 
unforeseen costs in a cost reimbursable contract, the tribe may suspend 
performance of the contract until sufficient additional funds are 
awarded. (See 25 CFR 900.130(e).)

Miscellaneous Provisions


Sec.  170.605  When may BIA use force account methods in the IRR 
Program?

    BIA may use force account methods in the IRR Program unless the 
tribe elects otherwise to enter into a self-determination contract or a 
self-governance agreement for the IRR Program. However, BIA must 
continue to consult with the tribe before using a force account under 
this situation. The applicable FAR and Federal law apply to BIA force 
account project activities.


Sec.  170.606  How do legislation and procurement requirements affect 
the IRR Program?

    Other legislation and procurement requirements apply to the IRR 
Program as shown in the following table.

----------------------------------------------------------------------------------------------------------------
                                Applies to tribes under
 Legislation, regulation or       self-determination        Applies to tribes under      Applies to activities
      other requirement                contracts          self-governance agreements  performed by the Secretary
----------------------------------------------------------------------------------------------------------------
Buy Indian Act..............  No                          No                          Yes.
Buy American Act............  No                          No                          Yes.
Federal Acquisition           No\1\                       No                          Yes.
 Regulation (FAR).
Federal Tort Claims Act.....  Yes                         Yes                         Yes.
Davis-Bacon Act.............  Yes \2\                     Yes \2\                     Yes.
----------------------------------------------------------------------------------------------------------------
\1\ Unless agreed to by the tribe or tribal organization under ISDEAA, 25 U.S.C. 450j(a), and 25 CFR part
  900.115.
\2\ Does not apply when tribe performs work with its own employees.

Sec.  170.607  Can a tribe use its allocation of IRR Program funds for 
contract support costs?

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


Sec.  170.608  Can a tribe pay contract support costs from Department 
of the Interior or BIA appropriations?

    No. Contract support costs for IRR construction projects cannot be 
paid out of Department of the Interior or BIA appropriations.

Contracts and Agreements Under ISDEAA


Sec.  170.610  What IRR Program functions may a tribe assume under 
ISDEAA?

    A tribe may assume all IRR Program functions and activities that 
are otherwise contractible under a self-determination contract or self-
governance agreement following the requirements in 25 CFR parts 900 or 
1000.
    (a) Tribes may use IRR Program project funds contained in their 
contracts or annual funding agreements for contractible supportive 
administrative functions.
    (b) Appendix A to this subpart contains a list of non-contractible 
functions and activities that cannot be included in contracts or 
agreements.


Sec.  170.611  What special provisions apply to ISDEAA contracts and 
agreements?

    (a) Multi-year contracts and agreements. The Secretary can enter 
into a multi-year IRR Program self-determination contract and self-
governance agreement with a tribe under sections 105(c)(1)(A) and (2) 
of ISDEAA. The amount of such contracts or agreements is subject to the 
availability of appropriations.
    (b) Consortia. Under Title I and Title IV of ISDEAA, tribes and 
multi-tribal organizations are eligible to assume IRR Programs under 
consortium contracts or agreements. For an explanation of self-
determination contracts, refer to Title I, 25 U.S.C. 450f. For an 
explanation of self-governance agreements, see Title IV, 25 U.S.C. 
450b(l) and 458b(b)(2).
    (c) Advance payments. The Secretary and the tribe must negotiate a 
schedule of advance payments as part of the terms of a self-
determination contract in accordance with 25 CFR 900.132.
    (d) Design and construction contracts. The Secretary can enter into 
a design/construct IRR Program self-determination contract that 
includes both the design and construction of one or more IRR projects. 
The Secretary may make advance payments to a tribe:
    (1) Under a self-determination design/construct contract for 
construction activities based on progress, need, and the payment 
schedule negotiated under 25 CFR 900.132; and
    (2) Under a self-governance agreement in the form of annual or 
semiannual installments as indicated in the agreement.


Sec.  170.612  How are non-contractible functions funded?

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


Sec.  170.613  When does BIA determine the amount of funds needed for 
non-contractible non-project related functions?

    Each fiscal year the Secretary will develop national and regional 
BIA IRR Program budgets. Within the first quarter of each fiscal year 
BIA will publish a copy of the national and regional IRR budgets.


Sec.  170.614  Can a tribe receive funds before BIA publishes the 
notice of funding availability?

    A tribe can receive funds before BIA publishes the notice of 
funding availability required by Sec.  170.600(a)(1) only if the tribe 
has a negotiated self-determination contract or self-governance 
agreement.


Sec.  170.615  Can a tribe receive advance payments for non-
construction activities?

    Yes. BIA must make advance payments to a tribe for non-construction

[[Page 43135]]

activities under 25 U.S.C. 450l for self-determination contracts on a 
quarterly, semiannual, lump-sum, or other basis proposed by a tribe and 
authorized by law.


Sec.  170. 616  How are advance payments made when additional IRR 
Program funds are made available after execution of the self-governance 
agreement?

    When additional IRR Program funds are available, following the 
procedures in 25 CFR 1000.104, tribes can request to use the additional 
funds for IRR Program activities or projects and have an addendum to 
the agreement executed.


Sec.  170.617  May a tribe include a contingency in its proposal 
budget?

    (a) A tribe with a self-determination contract may include a 
contingency amount in its proposed budget in accordance with 25 CFR 
900.127(e)(8).
    (b) A tribe with a self-governance agreement may include a project-
specific line item for contingencies if the tribe does not include its 
full IRR Program funding allocation in the agreement.
    (c) The amounts in both paragraphs (a) and (b) of this section must 
be within the RNDF allocation or within the negotiated ISDEAA contract 
or agreement.


Sec.  170.618  Can a tribe keep savings resulting from project 
administration?

    When actual costs of the projects under contracts or agreements for 
construction projects are less than the estimated costs, the Secretary 
will determine the use of the excess funds after consultation with the 
tribe. (See 25 U.S.C. 450e-2.)


Sec.  170.619  Do tribal preference and Indian preference apply to IRR 
Program funding?

    Tribal preference and Indian preference apply to IRR Program 
funding as shown in the following table:

------------------------------------------------------------------------
                 If . . .                            Then . . .
------------------------------------------------------------------------
(a) A contract serves a single tribe......  Section 7(c) under Title I
                                             of ISDEAA allows tribal
                                             employment or contract
                                             preference laws, including
                                             tribe local preference
                                             laws, to govern.
(b) A contract serves more than one tribe.  Section 7(b) under Title I
                                             of ISDEAA applies.
(c) A self-governance agreement exists      25 CFR 1000.406 applies.
 under Title IV of ISDEAA.
------------------------------------------------------------------------

Sec.  170.620  How do ISDEAA's Indian preference provisions apply?

    This section applies when the Secretary or a tribe enters into a 
cooperative agreement with a State or local government for an IRR 
construction project. The tribe and the parties may choose to 
incorporate the provisions of section 7(b) of ISDEAA in a cooperative 
agreement.


Sec.  170.621  What if a tribe fails to substantially perform work 
under a contract or agreement?

    If a tribe fails to substantially perform work under a contract or 
agreement:
    (a) For self-determination contracts, the Secretary must use the 
monitoring and enforcement procedures in 25 CFR 900.131(a)-(b) and 
ISDEAA, part 900 subpart L (appeals); and
    (b) For self-governance agreements, the Secretary must use the 
monitoring and enforcement procedures in 25 CFR part 1000 subpart K.


Sec.  170.622  What IRR programs, functions, services, and activities 
are subject to the self-governance construction regulations?

    All IRR Program design and construction projects and activities, 
whether included separately or under a program in the agreement, are 
subject to the regulations in 25 CFR 1000 subpart K, including 
applicable exceptions.


Sec.  170.623  How are IRR Program projects and activities included in 
a self-governance agreement?

    To include an IRR Program project or activity in a self-governance 
agreement, the following information is required:
    (a) A line item for each project or activity;
    (b) Sufficient detail to describe the work as included in the FHWA-
approved IRRTIP and Control Schedule; and
    (c) All other information required under 25 CFR 1000 subpart K.


Sec.  170.624  Is technical assistance available?

    Yes. Technical assistance is available from BIA for tribes with 
questions about contracting the IRR Program or IRR projects. For tribes 
with questions about self-governance agreements for the IRR Program or 
IRR project(s), technical assistance is available from the Office of 
Self-Governance and BIA. Technical assistance can include, but is not 
limited to, assistance in the preparation of self-determination 
contract proposal(s) and self-governance agreements.


Sec.  170.625  What regulations apply to waivers?

    The following regulations apply to waivers:
    (a) For self-determination contracts, 25 CFR 900.140-148;
    (b) For self-governance agreements, 25 CFR 1000.220-232; and
    (c) For direct service, 25 CFR 1.2.


Sec.  170.626  How does a tribe request a waiver of a Department of 
Transportation regulation?

    A tribe must follow the procedures in ISDEAA, Title I, and 25 CFR 
900.140-148 for self-determination contracts and Title IV, 25 CFR 
1000.220-232 for tribal self-governance agreements. A courtesy copy of 
the request should be sent to the Secretary of Transportation at: 400 
7th St., SW., HFL-1, Washington, DC 20590. When a waiver request is 
outside the Secretary's authority, the Secretary should forward the 
request to the Secretary of Transportation.

Appendix A to Subpart E--IRR Program Functions That Are Not Otherwise 
Contractible

    The program functions listed in this appendix cannot be included 
in a self-determination contract or self-governance agreement. (23 
U.S.C. 202(d)(3)(B))
    A. IRR project-related pre-contracting activities:
    1. Notifying tribes of available funding including the right of 
first refusal; and
    2. Providing technical assistance.
    B. IRR project-related contracting activities:
    1. Providing technical assistance;
    2. Reviewing all scopes of work under 25 CFR 900.122;
    3. Evaluating proposals and making declination decisions, if 
warranted;
    4. Performing declination activities;
    5. Negotiating and entering into contracts or agreements with 
State, tribal, and local governments and other Federal agencies;
    6. Processing progress payments or contract payments;
    7. Approving contract modifications;
    8. Processing claims and disputes with tribal governments; and
    9. Closing out contracts or agreements.
    C. Planning activities:
    1. Reviewing IRR transportation improvement programs developed 
by tribes or other contractors;
    2. Reviewing IRR long-range transportation plans developed by 
tribes or other contractors; and
    3. Performing other Federal responsibilities identified in the 
IRR Transportation Planning Procedures and Guidelines manual.
    D. Environmental and historical preservation activities:
    1. Reviewing and approving all items required for environmental 
compliance; and
    2. Reviewing and approving all items required for archaeological 
compliance.
    E. Processing rights-of-way:
    1. Reviewing rights-of-way applications and certifications;
    2. Approving rights-of-way documents;
    3. Processing grants and acquisition of rights-of-way requests 
for tribal trust and allotted lands under 25 CFR part 169;
    4. Responding to information requests;

[[Page 43136]]

    5. Filing Affidavit of Completion Forms; and
    6. Performing custodial functions related to storing rights-of-
way documents.
    F. Conducting project development and design under 25 CFR 
900.131:
    1. Participating in the plan-in-hand reviews on behalf of BIA as 
facility owner;
    2. Reviewing and/or approving plans, specifications, and cost 
estimates (PS&E's) for health and safety assurance on behalf of BIA 
as facility owner;
    3. Reviewing PS&E's to assure compliance with NEPA as well as 
all other applicable Federal laws; and
    4. Reviewing PS&E's to assure compliance with or exceeding 
Federal standards for IRR design and construction.
    G. Construction:
    1. Making application for clean air/clean water permits as 
facility owner;
    2. Ensuring that all required State/tribal/Federal permits are 
obtained;
    3. Performing quality assurance activities;
    4. Conducting value engineering activities as facility owner;
    5. Negotiating with contractors on behalf of Federal Government;
    6. Approving contract modifications/change orders;
    7. Conducting periodic site visits;
    8. Performing all Federal Government required project-related 
activities contained in the contract documents and required by 25 
CFR parts 900 and 1000;
    9. Conducting activities to assure compliance with safety plans 
as a jurisdictional responsibility hazardous materials, traffic 
control, OSHA, etc.;
    10. Participating in final inspection and acceptance of project 
documents as-built drawings on behalf of BIA as facility owner; and
    11. Reviewing project closeout activities and reports.
    H. Other activities:
    1. Performing other non-contractible required IRR project 
activities contained in this part, ISDEAA and part 1000; and
    2. Other Title 23 non-project-related management activities.
    I. BIADOT program management:
    1. Developing budget on needs for the IRR Program;
    2. Developing legislative proposals;
    3. Coordinating legislative activities;
    4. Developing and issuing regulations;
    5. Developing and issuing IRR planning, design, and construction 
standards;
    6. Developing/revising interagency agreements;
    7. Developing and approving IRR Program stewardship agreements 
in conjunction with FHWA;
    8. Developing annual IRR Program obligation and IRR Program 
accomplishments reports;
    9. Developing reports on IRR Program project expenditures and 
performance measures for the Government Performance and Results Act 
(GPRA);
    10. Responding to/maintaining data for congressional inquiries;
    11. Developing and maintaining funding formula and its database;
    12. Allocating IRR Program and other transportation funding;
    13. Providing technical assistance to tribe/tribal 
organizations/agencies/regions;
    14. Providing national program leadership for: National Scenic 
Byways Program, Public Lands Highways Discretionary Program, 
Transportation Enhancement Program, Indian Local Technical 
Assistance Program, Recreational Travel and Tourism, Transit 
Program, ERFO Program, Presidential initiatives (Millennium Trails, 
Lewis & Clark, Western Tourism Policy Group);
    15. Participating in and supporting tribal transportation 
association meetings;
    16. Coordinating with and monitoring Indian Local Technical 
Assistance Program centers;
    17. Planning, coordinating, and conducting BIA/tribal training;
    18. Developing information management systems to support 
consistency in data format, use, etc., with the Secretary of 
Transportation for the IRR Program;
    19. Participating in special transportation related workgroups, 
special projects, task forces and meetings as requested by tribes;
    20. Participating in national, regional, and local 
transportation organizations;
    21. Participating in and supporting FHWA Coordinated Technology 
Implementation program;
    22. Participating in national and regional IRR Program meetings;
    23. Consulting with tribes on non-project related IRR Program 
issues;
    24. Participating in IRR Program, process, and product reviews;
    25. Developing and approving national indefinite quantity 
service contracts;
    26. Assisting and supporting the IRR Coordinating Committee;
    27. Processing IRR Bridge program projects and other 
discretionary funding applications or proposals from tribes;
    28. Coordinating with FHWA;
    29. Performing stewardship of the IRR Program;
    30. Performing oversight of the IRR Program and its funded 
activities;
    31. Performing any other non-contractible IRR Program activity 
included in this part; and
    32. Determining eligibility of new uses of IRR Program funds.
    J. BIADOT Planning:
    1. Maintaining the official IRR inventory;
    2. Reviewing long-range transportation plans;
    3. Reviewing and approving IRR transportation improvement 
programs;
    4. Maintaining nationwide inventory of IRR strip and atlas maps;
    5. Coordinating with tribal/State/regional/local governments;
    6. Developing and issuing procedures for management systems;
    7. Distributing approved IRR transportation improvement programs 
to BIA regions;
    8. Coordinating with other Federal agencies as applicable;
    9. Coordinating and processing the funding and repair of damaged 
Indian Reservation Roads with FHWA;
    10. Calculating and distributing IRR transportation planning 
funds to BIA regions;
    11. Reprogramming unused IRR transportation planning funds at 
the end of the fiscal year;
    12. Monitoring the nationwide obligation of IRR transportation 
planning funds;
    13. Providing technical assistance and training to BIA regions 
and tribes;
    14. Approving Atlas maps;
    15. Reviewing IRR inventory information for quality assurance; 
and
    16. Advising BIA regions and tribes of transportation funding 
opportunities.
    K. BIADOT engineering:
    1. Participating in the development of design/construction 
standards with FHWA;
    2. Developing and approving design/construction/maintenance 
standards;
    3. Conducting IRR Program/product reviews; and
    4. Developing and issuing technical criteria for management 
systems.
    L. BIADOT responsibilities for bridges:
    1. Maintaining BIA National Bridge Inventory information/
database;
    2. Conducting quality assurance of the bridge inspection 
program;
    3. Reviewing and processing IRR Bridge program applications;
    4. Participating in second level review of IRR bridge PS-E's; 
and
    5. Developing criteria for bridge management systems.
    M. BIADOT responsibilities to perform other non-contractible 
required IRR Program activities contained in this part.
    N. BIA regional offices program management:
    1. Designating IRR System roads;
    2. Notifying tribes of available funding;
    3. Developing state IRR transportation improvement programs;
    4. Providing FHWA-approved IRR transportation improvement 
programs to tribes;
    5. Providing technical assistance to tribes/tribal 
organizations/agencies;
    6. Funding common services as provided as part of the region/
agency/BIA Division of Transportation IRR Program costs;
    7. Processing and investigating non-project related tort claims;
    8. Preparing budgets for BIA regional and agency IRR Program 
activities;
    9. Developing/revising interagency agreements;
    10. Developing control schedules/transportation improvement 
programs;
    11. Developing regional IRR Program stewardship agreements;
    12. Developing quarterly/annual IRR Program obligation and 
program accomplishments reports;
    13. Developing reports on IRR project expenditures and 
performance measures for Government Performance and Results Act 
(GPRA);
    14. Responding to/maintaining data for congressional inquiries;
    15. Participating in Indian transportation association meetings;
    16. Participating in Indian Local Technical Assistance Program 
(LTAP) meetings and workshops;
    17. Participating in BIA/tribal training development highway 
safety, work zone safety, etc;
    18. Participating in special workgroups, task forces, and 
meetings as requested by tribes and BIA region/agency personnel;

[[Page 43137]]

    19. Participating in national, regional, or local transportation 
organizations meetings and workshops;
    20. Reviewing Coordinated Technology Implementation Program 
project proposals;
    21. Consulting with tribal governments on non-project related 
program issues;
    22. Funding costs for common services as provided as part of BIA 
IRR region/agency/contracting support costs;
    23. Reviewing IRR Atlas maps;
    24. Processing Freedom of Information Act (FOIA) requests;
    25. Monitoring the obligation and expenditure of all IRR Program 
funds allocated to BIA region;
    26. Performing activities related to the application for ERFO 
funds, administration, and oversight of such funds; and
    27. Participating in IRR Program, process, and product reviews.
    O. BIA regional offices' planning:
    1. Coordinating with tribal/State/regional/local government;
    2. Coordinating and processing the funding and repair of damaged 
Indian Reservation Roads with tribes;
    3. Reviewing and approving IRR Inventory data;
    4. Maintaining, reviewing, and approving the management systems 
databases;
    5. Reviewing and approving IRR State transportation improvement 
programs; and
    6. Performing Federal responsibilities identified in the IRR 
Transportation Planning Procedures and Guidelines manual.
    P. BIA regional offices' engineering:
    1. Approving tribal standards for the IRR Program use;
    2. Developing and implementing new engineering techniques in the 
IRR Program; and
    3. Providing technical assistance.
    Q. BIA regional offices' responsibilities for bridges:
    1. Reviewing and processing IRR bridge program applications;
    2. Reviewing and processing IRR bridge inspection reports and 
information; and
    3. Ensuring the safe use of roads and bridges.
R. BIA regional offices' other responsibilities for performing other 
non-contractible required IRR Program activities contained in this 
part.

Subpart F--Program Oversight and Accountability


Sec.  170.700  What is the IRR Program stewardship plan?

    The IRR Program stewardship plan delineates the respective roles 
and responsibilities of BIA and FHWA in the administration of the IRR 
Program and the process used for fulfilling those roles and 
responsibilities.


Sec.  170.701  May a direct service tribe and BIA Region sign a 
Memorandum of Understanding?

    Yes. An IRR Program tribal/BIA region MOU is a document that a 
direct service tribe and BIA may enter into to help define the roles, 
responsibilities and consultation process between the regional BIA 
office and the Indian tribal government. It describes how the IRR 
Program will be carried out by BIA on the tribe's behalf.


Sec.  170.702  What activities may the Secretary review and monitor?

    The Secretary reviews and monitors the performance of construction 
activities under 25 CFR 900 subpart J and 25 CFR 1000 subpart K.

Subpart G--BIA Road Maintenance


Sec.  170.800  Who owns IRR transportation facilities?

    Public authorities such as tribes, States, counties, local 
governments, and the Federal Government own IRR transportation 
facilities.


Sec.  170.801  What is the BIA Road Maintenance Program?

    The BIA Road Maintenance Program covers the distribution and use of 
the funds provided by Congress in the annual Department of the Interior 
appropriations acts for maintaining transportation facilities. Appendix 
A to this subpart contains a list of activities that are eligible for 
funding under the BIA road maintenance program.


Sec.  170.802  How is road maintenance funded?

    (a) The U.S. Congress funds a BIA program for the maintenance of 
IRR transportation facilities as defined in this part through annual 
appropriations for the Department of the Interior.
    (b) The States, counties, and local governments fund the 
maintenance of IRR transportation facilities that they own or have 
agreed to maintain.
    (c) Tribal governments, at their discretion, may also provide for 
the maintenance of IRR transportation facilities.


Sec.  170.803  What facilities are eligible under the BIA Road 
Maintenance Program?

    (a) The following public transportation facilities are eligible for 
maintenance under the BIA Road Maintenance Program:
    (1) BIA transportation facilities listed in paragraph (b) of this 
section;
    (2) Non-BIA transportation facilities, if the tribe served by the 
facility feels that maintenance is required to ensure public health, 
safety, and economy, and if the tribe executes an agreement with the 
owning public authority within available funding;
    (3) Tribal transportation facilities such as public roads, highway 
bridges, trails, and bus stations; and
    (4) Other transportation facilities as approved by the Secretary.
    (b) The following BIA transportation facilities are eligible for 
maintenance under paragraph (a)(1) of this section:
    (1) BIA road systems and related road appurtenances such as signs, 
traffic signals, pavement striping, trail markers, guardrails, etc.;
    (2) Highway bridges and drainage structures;
    (3) Airport runways and heliport pads, including runway lighting;
    (4) Boardwalks;
    (5) Adjacent parking areas;
    (6) Maintenance yards;
    (7) Bus stations;
    (8) System public pedestrian walkways, paths, bike and other 
trails;
    (9) Motorized vehicle trails;
    (10) Public access roads to heliports and airports;
    (11) BIA and tribal post-secondary school roads and parking lots 
built with IRR Program funds; and
    (12) Public ferry boats and boat ramps.


Sec.  170.804  How is BIA's Road Maintenance Program related to the IRR 
Program?

    The following chart illustrates how BIA's Road Maintenance Program 
is related to other Title 23 U.S.C. programs:

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Sec.  170.805  What are the local, tribal, and BIA roles in 
transportation facility maintenance?

    (a) State, county, and local governments normally perform the 
maintenance of their IRR transportation facilities.
    (b) Tribes may perform or provide for their maintenance 
responsibilities by formal agreement or other contracts with any other, 
State, county, or local government.
    (c) BIA's responsibility includes preparing annual budget requests 
under 23 U.S.C. 204(c) that include a report of the shortfalls in each 
BIA Region in appropriations of BIA Road Maintenance dollars.


Sec.  170.806  What is an IRR Transportation Facilities Maintenance 
Management System?

    An IRR Transportation Facilities Maintenance Management System 
(TFMMS) is a tool BIA and tribes will use to budget, prioritize, and 
schedule transportation facility maintenance activities. It will be 
used to extend the service life of an IRR transportation facility, 
ensure safety, and report future funding needs to the Secretary. BIA 
will develop the IRR TFMMS.


Sec.  170.807  What must BIA include when it develops an IRR 
Transportation Facilities Maintenance Management System?

    (a) At a minimum, an IRR TFMMS system must include components for:
    (1) Uniformly collecting, processing, and updating data;
    (2) Predicting facility deterioration;
    (3) Identifying alternative actions;
    (4) Projecting maintenance costs;
    (5) Tracking and reporting of actual maintenance costs and 
activities accomplished;
    (6) Forecasting short- and long-term budget needs;
    (7) Recommended programs and schedules for implementation within 
policy and budget constraints;
    (8) Tracking and reporting unmet needs; and
    (9) Ability to produce various reports, including customized 
reports.
    (b) The minimum data requirements include:
    (1) Cost of maintenance activity per mile broken down by surface 
type and frequency of activity;
    (2) Cost of bridge maintenance by surface area of deck and 
frequency of activity;
    (3) Cost of maintenance of other inter-modal facilities;
    (4) Information from other IRR Program management systems;
    (5) Future needs; and
    (6) Basic facility data including but not limited to route, bridge 
number, maintenance activity code, facility inspection dates.


Sec.  170.808  Can BIA Road Maintenance Program funds be used to 
improve IRR transportation facilities?

    No. BIA Road Maintenance Program funds cannot be used to improve 
roads or other IRR transportation facilities to a higher road 
classification, standard, or capacity.


Sec.  170.809  Can a tribe perform road maintenance under a self-
determination contract or self-governance agreement?

    Yes. Any tribe may enter into a self-determination contract or 
self-governance agreement to conduct BIA or tribal transportation 
facility maintenance under ISDEAA and 25 CFR part 900 or 1000. The 
self-determination contract or self-governance agreement does not 
relieve BIA of its responsibility for maintenance.


Sec.  170.810  To what standards must an IRR transportation facility be 
maintained?

    IRR transportation facilities must be maintained, subject to 
availability of funding, in accordance with the IRR TFMMS. The 
Secretary will develop these standards with the input of the IRR 
Program Coordinating Committee. The Secretary must accept as interim 
standards any tribal maintenance standards that meet or exceed 
applicable Federal standards. Interim standards must include any of the 
following:
    (a) Appropriate National Association of County Engineers 
maintenance standards;
    (b) AASHTO road and bridge maintenance manuals, latest edition; or
    (c) Other applicable Federal, State, tribal, or local government 
maintenance standards as may be negotiated in an ISDEAA road 
maintenance self-determination contract or self-governance agreement.


Sec.  170.811  What happens if lack of funds results in inadequate 
maintenance?

    If BIA determines that an IRR transportation facility is not being 
maintained under IRR TFMMS standards due to insufficient funding, the 
Secretary will notify the facility owner, and if tribal or BIA owned, 
continue to request annual maintenance funding for that facility. In 
addition, the Secretary will report these findings to Secretary of 
Transportation under 23 U.S.C. 204. The Secretary will provide a draft 
copy of the report to the affected tribe for comment before forwarding 
it to Secretary of Transportation.

[[Page 43139]]

Sec.  170.812  What is emergency maintenance?

    Emergency maintenance is work that must be accomplished immediately 
because of life threatening circumstances due to a catastrophic failure 
or natural disaster. Examples of emergency maintenance include: ice and 
snow control, traffic control, work in slide areas, repairs to drainage 
washouts, retrieving hazardous materials, suppressing wild fires, and 
repairing the ravages of other disasters.


Sec.  170.813  When can access to IRR transportation facilities be 
restricted?

    IRR transportation facilities must be open and available for public 
use, as are IRRs (Sec.  170.120).
    (a) The Secretary may, in consultation with a tribe and applicable 
private landowners, restrict or temporarily close an IRR transportation 
facility to public use for the following reasons:
    (1) Because of unsafe conditions;
    (2) Because of natural disasters;
    (3) For fish or game protection;
    (4) To prevent traffic from causing damage to the facility; and
    (5) For reasons deemed to be in the public interest such as fire 
prevention or suppression as approved by the Secretary.
    (b) Consultation is not required whenever the above conditions 
involve immediate safety or life-threatening situations.
    (c) Certain IRR transportation facilities owned by the tribes or 
BIA may be permanently closed when the tribal government and the 
Secretary agree. Once this agreement is reached, BIA must remove the 
facility from the IRR System.

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

    The following activities are eligible for BIA Transportation 
Facility Maintenance Program. The list is not all-inclusive.
    1. Cleaning and repairing ditches and culverts.
    2. Stabilizing, removing, and controlling slides, drift sand, 
mud, ice, snow, and other impediments.
    3. Adding additional culverts to prevent roadway and adjoining 
property damage.
    4. Repairing, replacing or installing traffic control devices, 
guardrails and other features necessary to control traffic and 
protect the road and the traveling public.
    5. Removing roadway hazards.
    6. Repairing or developing stable road embankments.
    7. Repairing parking facilities and appurtenances such as 
striping, lights, curbs, etc.
    8. Repairing transit facilities and appurtenances such as bus 
shelters, striping, sidewalks, etc.
    9. Training maintenance personnel.
    10. Administering the BIA Transportation Facility Maintenance 
Program.
    11. Performing environmental/archeological mitigation associated 
with transportation facility maintenance.
    12. Leasing, renting, or purchasing of maintenance equipment.
    13. Paying utilities cost for roadway lighting and traffic 
signals.
    14. Purchasing maintenance materials.
    15. Developing, implementing, and maintaining an IRR 
Transportation Facility Maintenance Management System (TFMMS).
    16. Performing pavement maintenance such as pot hole patching, 
crack sealing, chip sealing, surface rejuvenation, and thin overlays 
(less than 1 inch).
    17. Performing erosion control.
    18. Controlling roadway dust.
    19. Re-graveling roads.
    20. Controlling vegetation through mowing, noxious weed control, 
trimming, etc.
    21. Making bridge repairs.
    22. Paying the cost of closing of transportation facilities due 
to safety or other concerns.
    23. Maintaining airport runways, heliport pads, and their public 
access roads.
    24. Maintaining and operating BIA public ferry boats.
    25. Making highway alignment changes for safety reasons. These 
changes require prior notice to the Secretary.
    26. Making temporary highway alignment or relocation changes for 
emergency reasons.
    27. Maintaining other IRR intermodal transportation facilities 
provided that there is a properly executed agreement with the owning 
public authority within available funding.

Subpart H--Miscellaneous Provisions

Hazardous and Nuclear Waste Transportation


Sec.  170.900  What is the purpose of the provisions relating to 
transportation of hazardous and nuclear waste?

    Sections 170.900 through 170.907 on transportation of nuclear and 
hazardous waste are provided for information only, they do not create 
any legal responsibilities or duties for any person or entity, and are 
not intended to create any basis for a cause of action under the 
Federal Tort Claims Act.


Sec.  170.901  What standards govern transportation of radioactive and 
hazardous materials?

    DOT, the International Atomic Energy Agency, the U.S. Nuclear 
Regulatory Commission (NRC) and the Environmental Protection Agency 
have established standards and regulations for the shipment of 
radioactive and hazardous materials. Legal authority includes, but is 
not limited to, 23 U.S.C. 141; 23 U.S.C. 127; 49 CFR parts 107, 171-
180; 10 CFR part 71.


Sec.  170.902  What is the role of State, tribal, and local 
governments?

    State, tribal, and local governments typically provide for the 
safety of their residents and other persons and protection of resources 
within their jurisdictions. With respect to radioactive and hazardous 
materials, some State, tribal, and local governments enact legislation, 
execute cooperative agreements, designate alternate transportation 
routes, develop emergency response plans, perform emergency response, 
issue permits, conduct vehicle inspections, enforce traffic laws, and 
perform highway construction and maintenance. These activities must not 
conflict with Federal laws and regulations.


Sec.  170.903  Who notifies tribes of the transport of radioactive 
waste?

    The Department of Energy (DOE) has elected, by policy, to notify 
tribes of DOE shipments through their jurisdiction.


Sec.  170.904  Who responds to an accident involving a radioactive or 
hazardous materials shipment?

    Tribal, Federal, local, and State police, fire departments, and 
rescue squads are often the first to respond to transportation 
accidents involving radioactive or hazardous materials. If radioactive 
materials are involved, DOE typically:
    (a) Ensures that appropriate State and tribal agencies are 
contacted and coordinate any necessary Radiological Assistance Program 
team activities; and
    (b) Dispatches a Radiological Assistance Program team that may 
include nuclear engineers, health physicists, industrial hygienists, 
public affairs specialists, and other personnel who provide related 
services.


Sec.  170.905  How can tribes obtain training in handling hazardous 
material?

    (a) Tribes cannot use IRR Program funds to train personnel to 
handle radioactive and hazardous material.
    (b) Tribes can seek training from DOE, EPA, NRC, OSHA, States, and 
other sources. Funding is available from DOT under the Hazardous 
Materials Uniform Safety Act, EPA for monitoring and FEMA for general 
preparedness.


Sec.  170.906  Who cleans up radioactive and hazardous material spills?

    The carrier is typically responsible for cleanup of a radioactive 
or hazardous material spill with assistance from the shipper using 
established standards and guidelines. The carrier should work with the 
appropriate tribal, local, State and Federal agencies to address all 
cleanup issues, such as arranging or

[[Page 43140]]

repackaging of the cargo, if necessary, and disposing of contaminated 
materials.

Reporting Requirements and Indian Preference


Sec.  170.910  What information on the IRR Program or projects must BIA 
provide to tribes?

    At the written request of a tribe, BIA must provide available 
information on the IRR Program or projects to a tribe within a 
reasonable time.


Sec.  170.911  Are Indians entitled to employment and training 
preferences?

    (a) Federal law gives hiring and training preferences, to the 
greatest extent feasible, to Indians for all work performed under the 
IRR Program.
    (b) Under 25 U.S.C. 450e(b) and 23 U.S.C. 204(e), Indian 
organizations and Indian-owned economic enterprises are entitled to a 
preference, to the greatest extent feasible, in the award of contracts, 
subcontracts and sub-grants for all work performed under the IRR 
Program.


Sec.  170.912  Does Indian employment preference apply to Federal-aid 
Highway Projects?

    (a) Tribal, State, and local governments may provide an Indian 
employment preference for Indians living on or near a reservation on 
projects and contracts that meet the definition of an Indian 
Reservation Road. (See 23 U.S.C. 101(a)(12) and 140(d), and 23 CFR 
635.117(d).)
    (b) Tribes may target recruiting efforts toward Indians living on 
or near Indian reservations, Indian lands, Alaska Native villages, 
pueblos, and Indian communities.
    (c) Tribes and tribal employment rights offices should work 
cooperatively with State and local governments to develop contract 
provisions promoting employment opportunities for Indians on eligible 
federally funded transportation projects. Tribal, State, and local 
representatives should confer to establish Indian employment goals for 
these projects.


Sec.  170.913  Do tribal-specific employment rights and contract 
preference laws apply?

    Yes. When a tribe or consortium administers an IRR Program or 
project intended to benefit that tribe or a tribe within the 
consortium, the benefitting tribe's employment rights and contracting 
preference laws apply. (See Sec.  170.619 and 25 U.S.C. 450e(c).)


Sec.  170.914  What is the difference between tribal preference and 
Indian preference?

    Indian preference is a hiring preference for Indians in general. 
Tribal preference is a preference adopted by a tribal government that 
may or may not include a preference for Indians in general, Indians of 
a particular tribe, Indians in a particular region, or any combination 
thereof.


Sec.  170.915  May tribal employment taxes or fees be included in an 
IRR project budget?

    Yes. The cost of tribal employment taxes or fees may be included in 
the budget for an IRR program or project, except for BIA force account.


Sec.  170.916  May tribes impose taxes or fees on those performing IRR 
Program services?

    Yes. Tribes, as sovereign nations, may impose taxes and fees for 
IRR Program activities. When a tribe administers IRR programs or 
projects under ISDEAA, its tribal employment and contracting preference 
laws, including taxes and fees, apply.


Sec.  170.917  Can tribes receive direct payment of tribal employment 
taxes or fees?

    This section applies to non-tribally administered IRR projects. 
Tribes can request that BIA pay tribal employment taxes or fees 
directly to them under a voucher or other written payment instrument, 
based on a negotiated payment schedule. Tribes may consider requesting 
direct payment of tribal employment taxes or fees from other 
transportation departments in lieu of receiving their payment from the 
contractor.

Emergency Relief


Sec.  170.920  What is the purpose of the provisions relating to 
emergency relief?

    Sections 170.920 through 170.927 relating to emergency relief are 
provided for information only and do not change the provisions of 23 
CFR part 668 or existing guidance on emergency relief.


Sec.  170.921  What emergency or disaster assistance programs are 
available?

    (a) FHWA operates two emergency relief programs:
    (1) The Emergency Relief (ER) Program, which provides disaster 
assistance for Federal-aid highways owned by State, county and local 
governments; and
    (2) The Emergency Relief for Federally Owned Roads (ERFO) Program, 
which provides disaster assistance for Federal roads, including Indian 
Reservation Roads, that have been damaged due to natural disasters 
(floods, hurricanes, tornadoes, etc.).
    (b) The Federal Emergency Management Agency (FEMA) may be 
considered as an alternate funding source to repair damage that is 
ineligible under the ER or ERFO Programs.


Sec.  170.922  How can States get Emergency Relief Program funds to 
repair IRR System damage?

    States can request emergency relief program funds to repair damage 
to Federal-aid highways caused by natural disasters or catastrophic 
failures. It is the responsibility of individual States to request 
these funds.


Sec.  170.923  What qualifies for ERFO funding?

    (a) Tribes can use ERFO funding to repair damage to IRR 
transportation facilities (including roads, bridges, and related 
structures) caused by natural disaster over a widespread area or by a 
catastrophic failure from any external cause. The Secretary of 
Transportation determines eligible repairs under 23 CFR 668, subpart B.
    (1) Examples of natural disasters include, but are not limited to, 
floods, earthquakes, tornadoes, landslides, avalanches or severe 
storms, such as saturated surface conditions and high-water table 
caused by precipitation over an extended period of time.
    (2) An example of a catastrophic failure includes, but is not 
limited to, a bridge collapse after being struck by a barge, truck or a 
landslide.
    (b) Structural deficiencies, normal physical deterioration, and 
routine heavy maintenance do not qualify for ERFO funding.


Sec.  170.924  What happens if DOT denies an ERFO claim?

    The appealing tribe or the facility owner (if the tribe is not the 
owner) may appeal the finding or determination to the Secretary of 
Transportation at: FHWA, 400 7th St., SW., HFL-1, Washington, DC 20590. 
If the tribe is appealing it must provide a courtesy copy of its appeal 
to BIA.


Sec.  170.925  Is ERFO funding supplemental to IRR Program funding?

    Yes. If ERFO funds are approved and available, they can be used to 
supplement IRR construction and maintenance funds for FHWA-approved 
repairs. If IRR construction or maintenance funds are used to address 
an approved claim when ERFO funds are unavailable, the next authorized 
ERFO funds may be used to reimburse the construction or maintenance 
funds expended.


Sec.  170.926  Can a tribe administer approved ERFO repairs under a 
self-determination contract or a self-governance agreement?

    Yes.


Sec.  170.927  How can FEMA Program funds be used to repair damage?

    (a) A tribe can request FEMA Program funds for emergency repairs to 
damaged

[[Page 43141]]

roads not on the IRR System if the President has declared a major 
disaster or emergency. The tribe makes the request by submitting an SF 
424, Application for Federal Assistance, directly to FEMA, as described 
in FEMA Response and Recovery Directorate 9512.4 (Dec. 28, 1999).
    (b) Tribes can ask States to seek FEMA Program funds to repair 
damage to roads not on the IRR System.

Tribal Transportation Departments


Sec.  170.930  What is a tribal transportation department?

    A tribal transportation department is a department, commission, 
board, or official of any tribal government charged by its laws with 
the responsibility for highway construction. Tribal governments, as 
sovereign nations, have inherent authority to establish their own 
transportation departments under their own tribal laws. Tribes may 
staff and organize transportation departments in any manner that best 
suits their needs. Tribes can receive technical assistance from Indian 
LTAP centers, BIA regional road engineers, or AASHTO to establish a 
tribal transportation department.


Sec.  170.931  Can tribes use IRR Program funds to pay tribal 
transportation department operating costs?

    Yes. Tribes can use IRR Program funds to pay the cost of planning, 
administration, and performance of approved IRR Program activities (see 
appendix A, subpart B). Tribes can also use BIA road maintenance funds 
to pay the cost of planning, administration, and performance of 
maintenance activities under this part.


Sec.  170.932  Are there other funding sources for tribal 
transportation departments?

    There are many sources of funds that may help support a tribal 
transportation department. The following are some examples of 
additional funding sources:
    (a) Tribal general funds;
    (b) Tribal Priority Allocation;
    (c) Tribal permits and license fees;
    (d) Tribal fuel tax;
    (e) Federal, State, private, and local transportation grants 
assistance;
    (f) Tribal Employment Rights Ordinance fees (TERO); and
    (g) Capacity building grants from Administration for Native 
Americans and other organizations.


Sec.  170.933  Can tribes regulate oversize or overweight vehicles?

    Yes. Tribal governments can regulate travel on roads under their 
jurisdiction and establish a permitting process to regulate the travel 
of oversize or overweight vehicles, in accordance with applicable 
Federal law. BIA may, with the consent of the affected tribe, establish 
a permitting process to regulate the travel of oversize or overweight 
vehicles on BIA-system roads.

Resolving Disputes


Sec.  170.934  Are alternative dispute resolution procedures available?

    (a) Federal agencies should use mediation, conciliation, 
arbitration, and other techniques to resolve disputes brought by IRR 
Program beneficiaries. The goal of these alternative dispute resolution 
(ADR) procedures is to provide an inexpensive and expeditious forum to 
resolve disputes. Federal agencies should resolve disputes at the 
lowest possible staff level and in a consensual manner whenever 
possible.
    (b) Except as required in 25 CFR part 900 and part 1000, tribes 
operating under a self-determination contract or self-governance 
agreement are entitled to use dispute resolution techniques prescribed 
in:
    (1) The ADR Act, 5 U.S.C. 571-583;
    (2) The Contract Disputes Act, 41 U.S.C. 601-613; and
    (3) The Indian Self-Determination and Education Assistance Act and 
the implementing regulations (including for non-construction the 
mediation and alternative dispute resolution options listed in 25 
U.S.C. 4501 (model contract section (b)(12)).


Sec.  170.935  How does a direct service tribe begin the alternative 
dispute resolution process?

    (a) To begin the ADR process, a direct service tribe must write to 
the BIA Regional Director or the Chief of BIA Division of 
Transportation. The letter must:
    (1) Ask to begin one of the alternative dispute resolution (ADR) 
procedures in the Administrative Dispute Resolution Act of 1996, 5 
U.S.C. 571-583 (ADR Act); and
    (2) Explain the factual and legal basis for the dispute.
    (b) ADR proceedings will be governed by procedures in the ADR Act 
and the implementing regulations.

Other Miscellaneous Provisions


Sec.  170.941  May tribes become involved in transportation research?

    Yes. Tribes may:
    (a) Participate in Transportation Research Board meetings, 
committees, and workshops sponsored by the National Science Foundation;
    (b) Participate in and coordinate the development of tribal and IRR 
transportation research needs;
    (c) Submit transportation research proposals to States, FHWA, 
AASHTO, and FTA;
    (d) Prepare and include transportation research proposals in their 
IRRTIPS;
    (e) Access Transportation Research Information System Network 
(TRISNET) database; and
    (f) Participate in transportation research activities under 
Intergovernmental Personnel Act agreements.


Sec.  170.942  Can a tribe use Federal funds for transportation 
services for a tribe's Welfare-to-Work, Temporary Assistance to Needy 
Families, and other quality-of-life improvement programs?

    (a) A tribe can use IRR Program funds:
    (1) To coordinate transportation-related activities to help provide 
access to jobs and make education, training, childcare, healthcare, and 
other services more accessible to tribal members; and
    (2) As the matching share for other Federal, State, and local 
mobility programs
    (b) To the extent authorized by law additional grants and program 
funds are available for the purposes in paragraph (a)(1) of this 
section from other programs administered by the Departments of 
Transportation, Health and Human Services, and Labor.
    (c) Tribes should also apply for Federal and State public 
transportation and personal mobility program grants and funds.

[FR Doc. 04-15928 Filed 7-16-04; 8:45 am]
BILLING CODE 4310-LH-P