[Federal Register Volume 79, Number 244 (Friday, December 19, 2014)]
[Proposed Rules]
[Pages 76192-76222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29604]
[[Page 76191]]
Vol. 79
Friday,
No. 244
December 19, 2014
Part V
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 170
Tribal Transportation Program; Proposed Rule
Federal Register / Vol. 79 , No. 244 / Friday, December 19, 2014 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[BIA 2014-0005; K00103 12/13 A3A10; 134D0102DR-DS5A300000-
DR.5A311.IA000113]
25 CFR Part 170
RIN 1076-AF19
Tribal Transportation Program
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would update the Tribal Transportation
Program regulations (formerly the Indian Reservation Roads Program) to
comply with the current surface transportation authorization, Moving
Ahead for Progress in the 21st Century, as extended, reflect changes in
the delivery options for the program that have occurred since the
regulation was published in 2004, remove certain sections that were
provided for informational purposes only, and make technical
corrections.
DATES: Comments on this rule must be received by March 20, 2015.
Comments on the information collections contained in this proposed
regulation are separate from those on the substance of the rule.
Comments on the information collection burden should be received by
January 20, 2015 to ensure consideration, but must be received no later
than February 17, 2015.
ADDRESSES: You may submit comments by any of the following methods:
-- Federal rulemaking portal: http://www.regulations.gov. The rule is
listed under the agency name ``Bureau of Indian Affairs.'' The rule has
been assigned Docket ID: BIA-2014-0005.
--Mail: Elizabeth Appel, Office of Regulatory Affairs & Collaborative
Action, U.S. Department of the Interior, 1849 C Street NW., Washington,
DC 20240. Include the number 1076-AF19 in the submission.
--Hand delivery: Elizabeth Appel, Office of Regulatory Affairs &
Collaborative Action, U.S. Department of the Interior, 1849 C Street
NW., Washington, DC 20240. Include the number 1076-AF19 in the
submission.
We cannot ensure that comments received after the close of the
comment period (see DATES) will be included in the docket for this
rulemaking and considered. Comments sent to an address other than those
listed here will not be included in the docket for this rulemaking.
Comments on the information collections in this proposed regulation
are separate from those on the substance of the rule. Send comments on
the information collection burden to OMB by facsimile to (202) 395-5806
or email to the OMB Desk Officer for the Department of the Interior at
[email protected]. Please send a copy of your comments to the
person listed in the FOR FURTHER INFORMATION CONTACT section of this
notice.
FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of
Regulatory Affairs & Collaborative Action, (202) 273-4680;
[email protected]. You may review the information collection
request online at http://www.reginfo.gov. Follow the instructions to
review Department of the Interior collections under review by OMB.
SUPPLEMENTARY INFORMATION:
I. Executive Summary of Rule
The proposed rule would:
Revise 25 CFR part 170 to comply with legislation
governing the Tribal Transportation Program;
Update the regulation to reflect changes in the delivery
options for the Tribal Transportation Program that are available to
tribal governments;
Make technical corrections to clarify program-related
responsibilities and requirements for tribal governments, the Bureau of
Indian Affairs, and the Federal Highway Administration (FHWA); and
Clarify the requirements for proposed roads and access
roads to be added to or remain in the National Tribal Transportation
Facility Inventory (formerly known as the Indian Reservation Roads
Inventory).
Remove certain sections of the current rule that were
provided for informational purposes only while directing the reader to
BIA or FHWA Web sites where the most current information is now
available.
BIA and FHWA distributed draft revisions to 25 CFR part 170 to
tribes and published a notice in the Federal Register of consultations
on the draft that were conducted at three locations in May of 2013. See
78 Federal Register 21861 (April 12, 2013). Written comments were
accepted at the consultations as well as email and mail until June 14,
2013.
Consultation sessions on the proposed rule will be held on the
following dates at the following locations:
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Meeting date Location Time
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January 13, 2015............. Sacramento, CA.. 9 a.m.-4:00 p.m.
January 15, 2015............. Phoenix, AZ..... 9 a.m.-4:00 p.m.
January 27, 2015............. Minneapolis, MN. 9 a.m.-4:00 p.m.
January 29, 2015............. Oklahoma City, 9 a.m.-4:00 p.m.
OK.
February 10, 2015............ Anchorage, AK... 9 a.m.-4:00 p.m.
February 12, 2015............ Seattle, WA..... 9 a.m.-4:00 p.m.
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Meeting Agenda (All Times Local)
9:00 a.m.-9:15 a.m. Welcome and Introductions
9:15 a.m.-10:30 a.m. Review Proposed Rule--Subparts A-C
10:30 a.m.-10:45 a.m. Break
11:45 a.m.-11:45 a.m. Review Proposed Rule--Subparts D-F
11:45 a.m.-1:00 p.m. Lunch
1:00 p.m.-2:15 p.m. Continue Review--Subparts G-H
2:15 p.m.-2:30 p.m. Break
2:30 p.m.-3:45 p.m. Questions and Answers
3:45 p.m.-4:00 p.m. Closing Comments
4:00 p.m. Adjourn
II. Background
Moving Ahead for Progress in the 21st Century Act (MAP-21), Public
Law 112-141, a reauthorization of the surface transportation act, was
signed into law on July 6, 2012, and became effective on October 1,
2012. MAP-21 was extended by the Highway and Transportation Funding Act
of 2014, Public Law 113-159 (August 8, 2014).
Section 1119 of MAP-21 struck the existing laws governing the
Indian Reservation Roads Program from 23 U.S.C. 201-204, and
established the Tribal Transportation Program (TTP) under 23 U.S.C. 201
and 202. In addition, Section 1103 of MAP-21 provided new definitions
for terms utilized in the TTP.
[[Page 76193]]
Section 1119 of MAP-21 created a new formula for distribution of
TTP funds among tribes, which had the effect of overriding the existing
Relative Need Distribution Formula (RNDF) that was published in 2004 at
25 CFR part 170, subpart C. See 23 U.S.C. 202(b)(3). Although the RNDF
is no longer applicable under the new TTP formula, certain historical
aspects of the former RNDF continue to be relevant in the new TTP
formula. MAP-21 also identified how certain roads included in the
National Tribal Transportation Program Facility Inventory (NTTFI)
impact funding within the new formula. See 23 U.S.C. 202(b)(1).
The current regulation was published in the Federal Register in
2004 (69 FR 43090, July 19, 2004). Congress later enacted the Safe,
Accountable, Flexible and Efficient Transportation Equity Act--A Legacy
for Users (SAFETEA-LU), Public Law 100-59 (August 10, 2005). Certain
provisions of 25 CFR part 170 were amended as a result of SAFETEA-LU
but the regulation was not revised at that time. The primary purpose of
the proposed rule is to bring the regulation into compliance with MAP-
21, which amends or renders obsolete parts of the existing rule.
There have also been significant changes in how TTP is delivered to
tribes since 25 CFR part 170 was published in 2004, and the proposed
rule reflects these changes. When 25 CFR part 170 was published, BIA
delivered the IRR program either by direct service to tribes or by
contracting with tribes to carry out certain program functions under
the Indian Self-Determination and Education Assistance Act. (P.L. 93-
638, as amended). Under SAFETEA-LU, FHWA and the BIA developed an
additional delivery option known as ``program agreements'' which allow
tribes that meet certain administrative and financial management
requirements to carry out all but the inherently Federal functions of
the TTP. MAP-21 carried forward the authority of SAFETEA-LU in this
area and the proposed rule incorporates these changes.
Additionally, the proposed rule codifies the requirements that
Proposed Roads or Access Roads must meet in order to be added to or
remain in the NTTFI. Tribes, BIA, and FHWA have identified the lack of
these requirements for Proposed and Access Roads to be added to or
remain in the NTTFI as an area of concern in the current regulation for
many years. Proposed roads are currently defined by 25 CFR 170.5 as ``a
road which does not currently exist and needs to be constructed.'' A
primary access route is the shortest practicable route connecting two
points, including roads between villages, roads to landfills, roads to
drinking water sources, roads to natural resources identified for
economic development, and roads that provide access to intermodal
termini, such as airports, harbors, or boat landings. See 23 U.S.C.
202(b)(1).
During 2012, BIA and FHWA conducted thirteen tribal consultation
meetings throughout the country on a joint BIA and FHWA recommendation
for changing how proposed roads and access roads would contribute to
the RNDF for Indian Reservation Roads Program funds. See 25 CFR part
170, subpart C. Although MAP-21 replaces the RNDF as discussed above,
the proposed rule would clarify the requirements that proposed roads or
access roads must meet in order to be added to or remain in the NTTFI.
III. Explanation of Revisions
Subpart A--General Provisions and Definitions
This subpart is revised to:
Be consistent with the language used throughout 23 U.S.C.
201 and 202;
Outline the policies, guidance manuals, directives, and
procedures that govern the TTP under the program delivery options that
are available to tribes; and
Include new and updated definitions that are used
throughout the rule.
Subpart B--Tribal Transportation Program Policy and Eligibility
This subpart is revised to be consistent with MAP-21 by:
Revising the language discussing Federal, tribal, state,
and local governments' coordination, collaboration, and consultation
responsibilities;
Updating the list of eligible uses of TTP funding and the
point of contact information for fund eligibility requests;
Updating the regulation regarding cultural access roads,
toll roads, recreation, tourism, trails, airport access roads, transit
facilities and seasonal transportation routes;
Changing the name ``Indian Local Technical Assistance
Program'' was changed to ``Tribal Technical Assistance Centers''
(TTACs).
MAP-21 established a TTP safety funding set-aside, and the proposed
rule describes the eligible uses and distribution of these funds. The
TTP Coordinating Committee was established by the current rule. The
proposed rule updates the responsibilities of the Committee regarding
information dissemination requirements and scheduling of Committee
meetings.
Subpart C--Tribal Transportation Program Funding
This subpart is revised as to do the following:
Remove the chart showing the flow of TTP funds.
Reflect the statutory formula and methodology established
by MAP-21 to distribute TTP funds including new formula factors, set-
asides, supplemental funding and transition period.
Remove the sections of the current regulation governing
the Indian Reservation Roads Program High Priority Projects because
Section 1123 of MAP-21 established the Tribal High Priority Projects
Program as a separate, stand-alone program.
Revise how the National Tribal Transportation Facility
Inventory (NTTFI) relates to the long-range tribal transportation
planning process.
Revise the appeal process for fund distribution to be
consistent with MAP-21.
Remove the appendices to Subpart C of the current
regulation because they are not applicable to the statutory funding
formula established by MAP-21.
Subpart D--Planning, Design, and Construction of Tribal Transportation
Program Facilities
This proposed subpart contains revisions to the sections involving
NTTFI submissions, review and approval of plans, specifications and
estimates (PS&Es). A section on the TTP Bridge Program was added to
reflect changes as a result of the enactment of MAP-21. The appendices
to this subpart were removed because they contained only reference
information that is now available on BIA and FHWA Web sites.
Subpart E--Service Delivery for Tribal Transportation Program
This subpart revises the sections involving Notice of Funds
Availability (NOFA), Contracts and Agreements including savings. The
Appendix to Subpart E is updated to be consistent with MAP-21.
Subpart F--Program Oversight and Accountability
This subpart revises the stewardship and oversight roles and
responsibilities for the TTP to reflect changes in the way the TTP is
delivered to tribes. The current regulations regarding Program Reviews
are moved to this subpart and
[[Page 76194]]
are updated to be consistent with MAP-21.
Subpart G--Maintenance
This subpart is updated to reflect changes in MAP-21 and clarify
the eligible activities funded only through TTP. The Appendix to
Subpart G of the existing regulation was removed and that information
that is now available on BIA and FHWA Web sites.
Subpart H--Miscellaneous
This subpart is updated to be consistent with statutory references
that changed due to the enactment of MAP-21. The sections involving
Emergency Relief and Hazardous and Nuclear Waste Transportation were
removed because they contained only reference information that is now
available on BIA and FHWA Web sites. The section regarding the Tribal
High Priority Projects Program was also removed because it is
authorized under Section 1123 of MAP-21 is therefore not a part of the
TTP.
IV. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public
where these approaches are relevant, feasible, and consistent with
regulatory objectives. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this rule in a manner consistent with these
requirements. This rule is also part of the Department's commitment
under the Executive Order to reduce the number and burden of
regulations and provide greater notice and clarity to the public.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this rule 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.).
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. It will not result in the
expenditure by State, local, or tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year. The
rule's requirements will not result in a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions. Nor will this rule 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 rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
E. Takings (E.O. 12630)
Under the criteria in E.O. 12630, this rule does not affect
individual property rights protected by the Fifth Amendment nor does it
involve a compensable ``taking.'' A takings implication assessment is
therefore not required.
F. Federalism (E.O. 13132)
Under the criteria in E.O. 13132, this rule has no substantial
direct effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule has been reviewed to eliminate errors and
ambiguity and written to minimize litigation; and is written in clear
language and contains clear legal standards.
H. Consultation With Indian Tribes (E.O. 13175)
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments,'' E.O. 13175 (59 FR 22951, November 6, 2000), and 512 DM
2, we have evaluated the potential effects on federally recognized
Indian tribes and Indian trust assets. During development of this
proposed rule, the Department discussed this topic with tribal leaders,
and will further consult specifically on the proposed rule during the
public comment period.
I. Paperwork Reduction Act
OMB Control Number: 1076-0161.
Title: 25 CFR 170, Tribal Transportation Program.
Brief Description of Collection: Some of the information such as
the providing inventory updates (25 CFR 170.444), the development of a
long range transportation plan (25 CFR 170.411 and 170. 412), the
development of a tribal transportation improvement program (25 CFR
170.421), and priority list (25 CFR 170.420) are mandatory to determine
how funds will allocated to implement the Tribal Transportation
Program. Some of the information, such as public hearing requirements,
is necessary for public notification and involvement (25 CFR 170.437
and 170.438). While other information, such as a request for exception
from design standards (25 CFR 170.456), are voluntary.
Type of Review: Revision of currently approved collection.
Respondents: Federally recognized Indian Tribal governments.
Number of Respondents: 1,349 on average (each year).
Number of Responses: 1,349 on average (each year).
Frequency of Response: On occasion.
Estimated Time per Response: (See table below).
Estimated Total Annual Hour Burden: 17,828 hours.
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Estimated
Citation 25 CFR 170 Information Average number Average number annual burden
of hours per year hours
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170.444......................... Provide and Review Information 20 141 2,820
170.411......................... Long Range Transportation Plan 40 113 4,520
Contents.
170.421......................... Reporting Requirement for 10 281 2,810
Tribal Transportation
Improvement Program (TTIP).
170.420......................... Reporting Requirement for 10 281 2,810
Tribal Priority List.
170.412......................... Submission of Long Range 40 113 4,520
Transportation Plan to BIA
and Public, and Further
Development.
170.437......................... Notice of Requirements for \1/2\ 205 103
Public Hearing.
170.439......................... Record keeping 1 205 205
Requirement_Record of Public
Hearing.
170.456......................... Provide Information for 4 10 40
Exception.
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OMB Control No. 1076-0161 currently authorizes the collections of
information contained in 25 CFR part 170. If this proposed rule is
finalized, the annual burden hours for respondents will decrease by
approximately 1,800 hours because two previously identified information
collection requirements have been deleted under this rule.
You may review the information collection request online at http://www.reginfo.gov. Follow the instructions to review Department of the
Interior collections under review by OMB. We invite comments on the
information collection requirements in the proposed rule. You may
submit comments to OMB by facsimile to (202) 395-5806 or you may send
an email to the attention of the OMB Desk Officer for the Department of
the Interior: [email protected]. Please send a copy of your
comments to the person listed in the FOR FURTHER INFORMATION CONTACT
section of this notice. Note that the request for comments on the rule
and the request for comments on the information collection are
separate. To best ensure consideration of your comments on the
information collection, we encourage you to submit them by January 20,
2015; while OMB has 60 days from the date of publication to act on the
information collection request, OMB may choose to act on or after 30
days. Comments on the information collection should address: (a) The
necessity of this information collection for the proper performance of
the functions of the agency, including whether the information will
have practical utility; (b) the accuracy of the agency's estimate of
the burden (hours and cost) of the collection of information, including
the validity of the methodology and assumptions used; (c) ways we could
enhance the quality, utility and clarity of the information to be
collected; and (d) ways we could minimize the burden of the collection
of the information on the respondents, such as through the use of
automated collection techniques or other forms of information
technology. Please note that an agency may not sponsor or request, and
an individual need not respond to, a collection of information unless
it displays a valid OMB Control Number.
J. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment because it is of an
administrative, technical, and procedural nature.
K. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O. 13211. A Statement of Energy Effects is not required.
L. Clarity of This Regulation
We are required by E.O. 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ``COMMENTS'' section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you believe lists or tables would be
useful, etc.
M. Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
List of Subjects in 25 CFR Part 170
Highways and roads, Indians-lands.
For the reasons stated in the preamble, the Department of the
Interior, Bureau of Indian Affairs, proposes to revise part 170 in
Title 25 of the Code of Federal Regulations to read as follows:
PART 170--TRIBAL TRANSPORTATION PROGRAM
Subpart A--Policies, Applicability, and Definitions
Sec.
170.1 What does this part do?
170.2 What policies govern the TTP?
170.3 When do other requirements apply to the TTP?
170.4 How does this part affect existing tribal rights?
170.5 What definitions apply to this part?
170.6 Information collection.
Subpart B--Tribal Transportation Program Policy and Eligibility
Consultation, Collaboration, Coordination
170.100 What do the terms ``consultation, collaboration, and
coordination'' mean?
170.101 What is the TTP consultation and coordination policy?
170.102 What goals and principles guide program implementation?
170.103 Is consultation with tribal governments required before
obligating TTP funds for direct service activities?
170.104 Are funds available for consultation, collaboration, and
coordination activities?
170.105 When must State governments consult with tribes?
170.106 Should planning organizations and local governments consult
with tribes when planning for transportation projects?
[[Page 76196]]
170.107 Should tribes and BIA consult with planning organizations
and local governments in developing projects?
170.108 How do the Secretaries prevent discrimination or adverse
impacts?
170.109 How can State and local governments prevent discrimination
or adverse impacts?
170.110 What if discrimination or adverse impacts occur?
Eligible Uses of TTP Funds
170.111 What activities may be carried out using TTP funds?
170.112 What activities are not eligible for TTP funding?
170.113 How can a tribe determine whether a new use of funds is
allowable?
Use of TTP and Cultural Access Roads
170.114 What restrictions apply to the use of a tribal
transportation facility?
170.115 What is a cultural access road?
170.116 Can a tribe close a cultural access road?
Seasonal Transportation Routes
170.117 Can TTP funds be used on seasonal transportation routes?
TTP Housing Access Roads
170.118 What terms apply to access roads?
170.119 Are housing access roads and housing streets eligible for
TTP funding?
Toll, Ferry and Airport Facilities
170.120 How can tribes use Federal highway funds for toll and ferry
facilities?
170.121 Where is information about designing and operating a toll
facility available?
170.122 When can a tribe use TTP funds for airport facilities?
Recreation, Tourism and Trails
170.123 Can a tribe use Federal funds for its recreation, tourism,
and trails program?
170.124 How can a tribe obtain funds?
170.125 What types of activities can a recreation, tourism, and
trails program include?
170.126 Can roads be built in roadless and wild areas?
Highway Safety Functions
170.127 What funds are available for a tribe's highway safety
activities?
170.128 What activities are eligible for the TTP safety funds?
170.129 How will tribes receive safety funds?
170.130 How can tribes obtain non-TTP funds to perform highway
safety projects?
Transit Facilities
170.131 How do tribes identify transit needs?
170.132 What Federal funds are available for a tribe's transit
program?
170.133 May a tribe or BIA use TTP funds as matching funds?
170.134 What transit facilities and activities are eligible for TTP
funding?
TTP Coordinating Committee
170.135 What is the TTP Coordinating Committee?
170.136 What are the TTP Coordinating Committee's responsibilities?
170.137 How does the TTP Coordinating Committee conduct business?
Tribal Technical Assistance Centers
170.138 What are Tribal Technical Assistance Centers?
Appendix to Subpart B--Items for Which TTP Funds May Be Used.
Subpart C--Tribal Transportation Program Funding
170.200 How do BIA and FHWA determine the TTP funding amount?
170.201 What is the statutory distribution formula for tribal
shares?
170.202 How do BIA and FHWA determine and distribute the tribal
supplemental program funds?
170.203 How do BIA and FHWA allocate and distribute tribal
transportation planning funds?
170.204 What restrictions apply to TTP funds provided to tribes?
170.205 What is the timeframe for distributing TTP funds?
TTP Inventory and Long-Range Transportation Plan
170.225 How does a long-range transportation plan relate to the
National Tribal Transportation Facility Inventory?
Formula Data Appeals
170.226 How can a tribe appeal its share calculation?
Flexible Financing
170.227 Can tribes use flexible financing for TTP projects?
170.228 Can a tribe use TTP funds to leverage other funds or pay
back loans?
170.229 Can a tribe apply for loans or credit from a State
infrastructure bank?
170.230 How long must a project financed through flexible financing
remain on a TTPTIP?
Subpart D--Planning, Design, and Construction of Tribal Transportation
Program Facilities
Transportation Planning
170.400 What is the purpose of transportation planning?
170.401 What are BIA's and FHWA's roles in transportation planning?
170.402 What is the tribal role in transportation planning?
170.403 What TTP funds can be used for transportation planning?
170.404 Can tribes use transportation planning funds for other
activities?
170.405 How must tribes use planning funds?
170.406-170.409 [Reserved].
170.410 What is the purpose of tribal long-range transportation
planning?
170.411 What should a long-range transportation plan include?
170.412 How is the tribal TTP 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 are pre-project planning and project identification
studies?
170.420 What is the tribal priority list?
Transportation Improvement Programs
170.421 What is the Tribal Transportation Improvement Program
(TTIP)?
170.422 What is the TTP Transportation Improvement Program (TTPTIP)?
170.423 How are projects placed on the TTPTIP?
170.424 How does the public participate in developing the TTPTIP?
170.425 How do BIA and FHWA conduct the annual update to the TTPTIP?
170.426 How is the TTPTIP approved?
170.427 How can a tribe amend an approved TTPTIP?
170.428 How is the State Transportation Improvement Program related
to the TTPTIP?
Public Hearings
170.435 When is a public hearing required?
170.436 How are public hearings for TTP planning and projects
funded?
170.437 If there is no hearing, how must BIA, FHWA, or a tribe
inform the public?
170.438 How must BIA, FHWA, 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?
TTP Facility Inventory
170.442 What is the National Tribal Transportation Facility
Inventory?
170.443 What is required to successfully include a proposed
transportation facility in the NTTFI?
170.444 How is the NTTFI updated?
170.445 What is a strip map?
170.446 What minimum attachments are required for an NTTFI
submission?
Environmental and Archeological Requirements
170.450 What archeological and environmental requirements must the
TTP meet?
170.451 Can TTP funds be used for archeological and environmental
compliance?
170.452 When can TTP funds be used for archeological and
environmental activities?
Design
170.454 What design standards are used in the TTP?
170.455 What other factors must influence project design?
170.456 When can a tribe request an exception from the design
standards?
170.457 Can a tribe appeal a denial?
[[Page 76197]]
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?
170.463 What if a design deficiency is identified?
Construction and Construction Monitoring
170.470 Which construction standards must tribes use?
170.471 How are projects administered?
170.472 What construction records must tribes and BIA keep?
170.473 When is a project complete?
170.474 Who conducts the project closeout?
Management Systems
170.502 Are nationwide management systems required for the TTP?
Bridge Program
170.510 What funds are available to address bridge activities?
170.511 What activities are eligible for Tribal Transportation
Facility Bridge funds?
170.512 How will Tribal Transportation Facility Bridge funds be made
available to the tribes?
170.513 When and how are bridge inspections performed?
170.514 Who reviews bridge inspection reports?
Subpart E--Service Delivery for Tribal Transportation Program
Funding Process
170.600 What must BIA include in the notice of funds availability?
170.602 If a tribe incurs unforeseen construction costs, can it get
additional funds?
Miscellaneous Provisions
170.605 May BIA or FHWA use force-account methods in the TTP?
170.606 How do legislation and procurement requirements affect the
TTP?
170.607 Can a tribe use its allocation of TTP funds for contract
support costs?
170.608 Can a tribe pay contract support costs from DOI or BIA
appropriations?
170.609 Can a tribe receive additional TTP funds for start-up
activities?
Contracts and Agreements
170.610 What TTP functions may a tribe assume?
170.611 What special provisions apply to ISDEAA contracts and
agreements?
170.612 Can non-contractible functions and activities be included in
contracts or agreements?
170.614 Can a tribe receive funds before BIA publishes the final
notice of funding availability?
170.615 Can a tribe receive advance payments for non-construction
activities under the TTP?
170.616 How are payments made to tribes if additional funds are
available?
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 TTP
funding?
170.620 How do ISDEAA's Indian preference provisions apply?
170.621 What if a tribe doesn't perform work under a contract or
agreement?
170.622 What TTP program, functions, services, and activities are
subject to the self-governance construction regulations?
170.623 How are TTP 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 to Subpart E--List of Program Functions that Cannot be
Subcontracted
Subpart F--Program Oversight and Accountability
170.700 What is the TTP Stewardship Plan/National Business Plan?
170.701 May a direct service tribe and BIA Region sign a Memorandum
of Understanding?
170.702 What activities may the Secretaries review and monitor?
170.703 What program reviews do the Secretaries conduct?
170.704 What happens when the review process identifies areas for
improvement?
Subpart G--Maintenance Programs
170.800 What funds are available for maintenance activities?
170.801 Can maintenance funds be used to implement TTP
transportation facilities?
170.802 Can a tribe perform road maintenance?
170.803 To what standards must a TTP transportation facility be
maintained?
170.804 What if maintenance funding is inadequate?
170.805 What maintenance activities are eligible for TTP funding?
Subpart H--Miscellaneous Provisions
Reporting Requirements and Indian Preference
170.910 What information on the TTP or projects must BIA or FHWA
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 preference and Indian
preference?
170.915 May tribal employment taxes or fees be included in a TTP
project budget?
170.916 May tribes impose taxes or fees on those performing TTP
services?
170.917 Can tribes receive direct payment of tribal employment taxes
or fees?
170.918 What applies to the Secretaries collection of data under the
TTP?
Tribal Transportation Departments
170.930 What is a tribal transportation department?
170.931 Can tribes use TTP 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 quality-of-life improvement programs?
170.943 What is the Tribal High Priority Projects Program?
Authority: Pub. L. 112-141, 23 U.S.C. 202.
PART 170--TRIBAL TRANSPORTATION PROGRAM
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 cooperation with the Department of
Transportation (DOT), to implement the Tribal Transportation Program
(TTP). Included in this part are other Title 23 and Title 25
transportation programs administered by the Secretary of the Interior
and the Secretary of Transportation (Secretaries) and implemented by
tribes and tribal organizations under the Indian Self- Determination
and Education Assistance Act of 1975 (ISDEAA), as amended, program
agreements, and other appropriate agreements.
Sec. 170.2 What policies govern the TTP?
(a) The Secretaries' policy for the TTP is to:
(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 inclusion of these programs under self-determination
contracts, self-governance agreements, program agreements, and other
appropriate agreements;
(5) Make available all contractible non-inherently Federal
administrative functions under self-determination contracts, self-
governance agreements,
[[Page 76198]]
program agreements, and other appropriate agreements.
(6) Carry out 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 increasing tribal autonomy and discretion
in program operation.
(c) This part is designed to enable Indian tribes to participate in
all contractible activities of the TTP and BIA Road Maintenance
program. The Secretary of the Interior will afford Indian tribes the
flexibility, information, and discretion to design roads programs under
self-determination contracts, self-governance agreements, program
agreements, and other appropriate agreements to meet the needs of their
communities consistent with this part.
(d) 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, self-governance
agreements, program agreements, and other appropriate 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 DOI that carries out these functions. Including TTP
administrative functions under self-determination contracts, self-
governance agreements, program agreements or other appropriate
agreements, does not limit or reduce the funding for any program or
service serving any other tribe.
(g) The Secretaries are 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 to facilitate and enable the transfer of programs authorized by
23 U.S.C. 201 and 202 and title 25 of the U.S.C.
Sec. 170.3 When do other requirements apply to the TTP?
TTP policies, guidance, and directives apply, to the extent
permitted by law, only if they are consistent with this part and 25 CFR
parts 900 and 1000. See 25 CFR 900.5 for when a tribe must comply with
other unpublished requirements.
Sec. 170.4 How does this part affect existing tribal rights?
This part does not:
(a) Affect tribes' sovereign immunity from suit;
(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 TTP; 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.
Access road as defined in 23 CFR 635.117(e) means a road that
extends outward from the tribal boundary to a point at which it
intersects with a road functionally classified as a collector or higher
classification in both urban and rural areas. The maximum length of an
Access road will not exceed 15 miles.
Agreement means a self-determination contract, self-governance
agreement, Program Agreement or other appropriate agreement, to fund
and manage the programs, functions, services and activities transferred
to a tribe.
Appeal means a request by a tribe or consortium for an
administrative review of an adverse agency decision.
Asset management as defined in 23 U.S.C. 101(a)(2) means a
strategic and systematic process of operating, maintaining, and
improving physical assets, with a focus on both engineering and
economic analysis based upon quality information, to identify a
structured sequence of maintenance, preservation, repair,
rehabilitation, and replacement actions that will achieve and sustain a
desired state of good repair over the lifecycle of the assets at
minimum practicable cost.
BIA means the Bureau of Indian Affairs of the Department of the
Interior.
BIADOT means the Bureau of Indian Affairs, Indian Services--
Division of Transportation--Central Office.
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 National Tribal Transportation Facility Inventory (NTTFI) and
includes only those existing and proposed facilities for which the BIA
has or plans to obtain legal right-of-way.
BIA System Inventory means Bureau of Indian Affairs System
Inventory under the NTTFI that included the BIA road system, tribally
owned public roads, and facilities not owned by an Indian tribal
government or the BIA in the States of Oklahoma and Alaska that were
used to generate road mileage for computation of the funding formula in
the Indian Reservation Roads Program prior to October 1, 2004.
BIA Transportation Facility means any of the following:
(1) 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 TTP Program funds; and
(12) Public ferry boats and boat ramps.
CFR means the United States Code of Federal Regulations.
Construction, as defined in 23 U.S.C. 101(a)(4), means the
supervising, inspecting, actual building, and incurrence of all costs
incidental to the construction or reconstruction of a tribal
transportation facility, as defined in 23 U.S.C. 101(a)(31). The term
includes--
(1) Preliminary engineering, engineering, and design-related
services directly relating to the construction of a tribal
transportation facility project, including engineering, design, project
development and management, construction project management and
inspection, surveying, mapping
[[Page 76199]]
(including the establishment of temporary and permanent geodetic
control under specifications of the National Oceanic and Atmospheric
Administration), and architectural-related services;
(2) Reconstruction, resurfacing, restoration, rehabilitation, and
preservation;
(3) Acquisition of rights-of-way;
(4) Relocation assistance, acquisition of replacement housing
sites, and acquisition and rehabilitation, relocation, and construction
of replacement housing;
(5) Elimination of hazards of railway-highway grade crossings;
(6) Elimination of roadside hazards;
(7) Improvements that directly facilitate and control traffic flow,
such as grade separation of intersections, widening of lanes,
channelization of traffic, traffic control systems, and passenger
loading and unloading areas; and
(8) 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 or an eligible
TTP funded road maintenance 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) Provide 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 will carry over to the next business day unless
otherwise prohibited by law.
Design means services related to preparing drawings,
specifications, estimates, and other design submissions specified in a
contract or agreement, as well as services during the bidding/
negotiating, construction, and operational phases of the project.
DOI means the Department of the Interior.
DOT means the Department of Transportation.
FHWA means the Federal Highway Administration of the Department of
Transportation.
Financial Constraint or Fiscal Constraint means that a plan
(metropolitan transportation plan, TIP, or STIP) includes financial
information demonstrating that projects can be implemented using
committed, available, or reasonably available revenue sources, with
reasonable assurance that the federally supported transportation system
is adequately operated and maintained. (See 23 U.S.C. 134 and 135.)
(1) For the TIP and the STIP, financial constraint/fiscal
constraint applies to each program year.
(2) Projects in air quality nonattainment and maintenance areas can
be included in the first two years of the TIP and STIP only if funds
are ``available'' or ``committed.'' See 23 CFR 450.104.
FTA means the Federal Transit Administration within the Department
of Transportation.
Governmental subdivision of a tribe means a unit of a federally-
recognized tribe which is authorized to participate in a TTP 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.
ISDEAA means the Indian Self-Determination and Education Assistance
Act of 1975, Public Law 93-638, as amended.
Maintenance means the preservation of the tribal transportation
facilities, including surface, shoulders, roadsides, structures, and
such traffic-control devices as are necessary for safe and efficient
utilization of the facility as defined in 23 U.S.C. 101(31).
NBTI means the National Bridge and Tunnel Inventory, which is the
database of structural and appraisal data collected to fulfill the
requirements of the National Bridge and Tunnel Inspection Standards, as
defined in 23 U.S.C. 144. Each State and BIA must maintain an inventory
of all bridges and tunnels that are subject to the NBTI standards and
provide this data to the Federal Highway Administration (FHWA).
National Tribal Transportation Facility Inventory (NTTFI) means at
a minimum, transportation facilities that are eligible for assistance
under the tribal transportation program that an Indian tribe has
requested, including facilities that meet at least one of the following
criteria:
(1) Were included in the Bureau of Indian Affairs system inventory
prior to October 1, 2004.
(2) Are owned by an Indian tribal government (``owned'' means
having the authority to finance, build, operate, or maintain the
facility (see 23 U.S.C. 101(a)(20)).
(3) Are owned by the Bureau of Indian Affairs (``owned'' means
having the authority to finance, build, operate, or maintain the
facility (See 23 U.S.C. 101(a)(20)).
(4) Were constructed or reconstructed with funds from the Highway
Trust Fund under the Indian reservation roads program since 1983.
(5) Are public roads or bridges within the exterior boundary of
Indian reservations, Alaska Native villages, and other recognized
Indian communities (including communities in former Indian reservations
in the State of Oklahoma) in which the majority of residents are
American Indians or Alaska Natives.
(6) Are public roads within or providing access to either:
(i) 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
(ii) Indian or Alaska Native villages, groups, or communities whose
residents include Indians and Alaska Natives whom the Secretary has
determined are eligible for services generally available to Indians
under Federal laws applicable to Indians.
(7) Are primary access routes proposed by tribal governments,
including roads between villages, roads to landfills, roads to drinking
water sources, roads to natural resources identified for economic
development, and roads that provide access to intermodal terminals,
such as airports, harbors, or boat landings.
Population Adjustment Factor means a special portion of the former
Indian Reservation Roads (IRR) Program distribution formula that was
calculated annually and provided for broader participation in the IRR
Program.
Program means any program, function, service, activity, or portion
thereof.
Program agreement means an agreement between the tribe and
Assistant Secretary--Indian Affairs or
[[Page 76200]]
the Administrator of the Federal Highway Administration, or their
respective designees, that transfers all but the inherently federal
program functions, services and activities of the Tribal Transportation
Program to the tribe.
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 or facility means a road or facility that will serve
public transportation needs, meets the eligibility requirements of the
TTP, and does not currently exist.
Public authority as defined in 23 U.S.C. 101(a)(20) 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, fixtures and appurtenances.
Regionally significant project means a project (other than projects
that may be grouped in the STIP/TIP under 23 CFR 450) that:
(1) Is on a facility which serves regional transportation needs
(such as access to and from the area outside of the region, major
activity centers in the region, major planned developments such as new
retail malls, sports complexes, etc., or transportation terminals as
well as most terminals themselves); and
(2) Would normally be included in the modeling of a metropolitan
area's transportation network, including, as a minimum, all principal
arterial highways and all fixed guideway transit facilities that offer
a significant alternative to regional highway travel.
Rehabilitation means the work required to restore the structural
integrity of transportation facilities as well as work necessary to
correct safety defects.
Relative Need Distribution Factor means a mathematical formula used
for distributing construction funds under the former Indian Reservation
Roads Program.
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.
Seasonal transportation route means a non-recreational
transportation route in the national tribal transportation facility
inventory such as snowmobile trails, ice roads, and overland winter
roads that provide access to Indian communities or villages and may not
be open for year-round use.
Secretaries means the Secretary of the Interior and the Secretary
of Transportation or designees authorized to act on their behalf.
Secretary means the Secretary of the Interior or a designee
authorized to act on the Secretary's behalf.
Secretary of Transportation means the Secretary of Transportation
or a designee authorized to act on behalf of the Secretary.
State Transportation Department as defined in 23 U.S.C. 101(a)(28)
means that department, commission, board, or official of any State
charged by its laws with the responsibility for highway construction.
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 provided by a tribe or other public authority using Federal
funds.
Transportation planning means developing land use, economic
development, traffic demand, public safety, health and social
strategies to meet transportation current and future needs.
Tribal road system means the tribally owned roads under the
National Tribal Transportation Facility Inventory (NTTFI). For the
purposes of fund distribution as defined in 23 U.S.C. 202(b), the
tribal road system includes only those existing and proposed facilities
that are approved and included in the NTTFI as of fiscal year 2012.
Tribal transit program means 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 tribal lands.
Tribal Transportation Program (TTP) means a program established in
Section 1119 of Moving Ahead for Progress in the 21st Century (MAP-21),
Public Law 112-141 (July 6, 2012), and codified in 23 U.S.C. 201 and
202 to address transportation needs of tribes.
Tribal Transportation Facility means a public highway, road,
bridge, trail, or transit system that is located on or provides access
to tribal land and appears on the national tribal transportation
facility inventory described in 23 U.S.C. 202(b)(1).
Tribal Transportation Facility Bridge Program means the program
authorized and defined under 23 U.S.C. 202(d) and set forth in 23 CFR
part 661 that uses TTP funds for the improvement of deficient bridges.
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 list of proposed transportation projects developed by a
tribe from the tribal priority list or the long-range transportation
plan.
TTP formula funds means the pool of funds made available to tribes
under 23 U.S.C. 202(b)(3).
TTP funds means the funds authorized under 23 U.S.C. 201 and 202.
TTP planning funds means funds referenced in 23 U.S.C. 202(c)(1).
TTP Program Management and Oversight (PM&O) funds means those funds
authorized by 23U.S.C 202(a)(6)
[[Page 76201]]
to pay the cost of carrying out inherently Federal program management
and oversight, and project-related administrative expenses activities.
TTP System means all of the facilities eligible for inclusion in
the National Tribal Transportation Facility Inventory.
TTPTIP means Tribal Transportation Program Transportation
Improvement Program. It is a financially constrained prioritized list
of transportation projects and activities eligible for TTP funding
covering a period of 4 years that is developed by BIA and FHWA based on
the TTIP or tribal priority list. It is required for projects and
activities to be eligible for funding under Title 23 U.S.C. and Title
49 U.S.C. Chapter 53. The Secretary of Transportation reviews and
approves the TTPTIP and distributes copies to each State for inclusion
in their respective STIPs without further action.
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 control number 1076-0161. 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 information collection should be sent to the
Information Collection Clearance Officer, Bureau of Indian Affairs,
1849 C Street NW., Washington, DC 20240.
Subpart B--Tribal Transportation 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 TTP consultation and coordination policy?
(a) The TTP'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, TTP, and tribal
transportation improvement programs that impact tribal lands,
communities, and members;
(3) Developing short and long-range transportation plans;
(4) Developing TTP 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 carry out the Tribal
Transportation Facility Bridge Program identified in 23 U.S.C. 202(d);
(7) Developing plans or projects for disaster and emergency relief
response and the repair of eligible damaged TTP transportation
facilities;
(8) Assisting in the development of State and tribal agreements
related to the TTP;
(9) Developing and improving transit systems serving Indian lands
and communities;
(10) Assisting in the submission of discretionary grant
applications for State and Federal funding for TTP transportation
facilities; and
(11) Developing plans and projects for the Safety funding
identified in 23 U.S.C. 202(e).
(b) Tribes and State and Federal Government agencies may enter into
intergovernmental Memoranda of Agreement to streamline and facilitate
consultation, collaboration, and coordination.
(c) DOI and DOT operate within a government-to-government
relationship with federally recognized tribes. As a critical element of
this relationship, these agencies 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 program implementation?
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;
(f) Encourage flexibility and innovation in the implementation of
the TTP;
(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 TTP 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. 170.103 Is consultation with tribal governments required before
obligating TTP funds for direct service activities?
Yes. Consultation with tribal governments is required before
obligating TTP funds for direct service activities. Before obligating
TTP funds on any project for direct service activities, the Secretary
must:
(a) Consult with the affected tribe to determine tribal preferences
concerning the program, project, or activity; and
[[Page 76202]]
(b) Provide information under Sec. 170.600 within 30 days of the
notice of availability of funds.
Sec. 170.104 Are funds available for consultation, collaboration, and
coordination activities?
Yes. Funds are available for consultation, collaboration, and
coordination activities. To fund consultation, collaboration, and
coordination of TTP activities, tribes may use:
(a) The tribes' TTP allocations;
(b) Tribal Priority Allocation funds;
(c) Administration for Native Americans funds;
(d) Economic Development Administration funds;
(e) United States Department of Agriculture Rural Development
funds;
(f) Community Development Block Grant funds;
(g) Indian Housing Block Grant funds;
(h) Indian Health Service Tribal Management Grant funds;
(i) General funds of the tribal government; and
(j) Any other funds available for the purpose of consultation,
collaboration, and coordination activities.
Sec. 170.105 When must State governments consult with tribes?
As identified in 23 U.S.C. 134 and 135, States will develop their
State Transportation Improvement Program (STIP) in consultation with
tribes and the Secretary in those areas under Indian tribal
jurisdiction. This includes providing for a process that coordinates
transportation planning efforts carried out by the State with similar
efforts carried out by tribes. Regulations governing STIPs can be found
at 23 CFR part 450.
Sec. 170.106 Should planning organizations and local governments
consult with tribes when planning for transportation projects?
Yes. Planning organizations and local governments should consult
with tribes when planning for transportation projects. 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. 170.107 Should tribes and BIA consult with planning
organizations and local governments in developing projects?
Yes. Tribes and BIA should consult with planning organizations and
local governments in developing projects.
(a) All regionally significant TTP projects must be:
(1) Developed in cooperation with State and metropolitan planning
organizations; and
(2) Included in a FHWA approved TTPTIP 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. 170.108 How do the Secretaries prevent discrimination or adverse
impacts?
The Secretaries ensure that non-discrimination and environmental
justice principles are integral TTP 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. 170.109 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 will consult and work with tribes 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. 170.110 What 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; and
(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 of TTP Funds
Sec. 170.111 What activities may be carried out using TTP funds?
TTP funds will be used to pay the cost of items identified in 23
U.S.C. 202(a)(1). A more detailed list of eligible activities is
available at Appendix A to this subpart. Each of the items identified
in Appendix A must be interpreted in a manner that permits, rather than
prohibits, a proposed use of funds.
Sec. 170.112 What activities are not eligible for TTP funding?
TTP funds cannot be used for any of the following:
(a) Structures and erosion protection unrelated to transportation
and roadways;
(b) General or tribal planning not involving transportation;
(c) Landscaping and irrigation systems not involving transportation
programs and projects;
(d) Work or activities that are not listed on an FHWA-approved TTP
Transportation Improvement Program (TTPTIP);
(e) Purchase of construction and maintenance equipment unless
approved by BIA and FHWA as authorized under Sec. 170.113; or
(f) Condemnation of land for recreational trails.
Sec. 170.113 How can a tribe determine whether a new use of funds is
allowable?
(a) A tribe that proposes new uses of TTP funds must ask BIA or
FHWA in writing whether the proposed use is eligible under Federal law.
(1) In cases involving eligibility questions that refer to 25
U.S.C., BIA will determine whether the new proposed use of TTP 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
4513 MIB, Washington, DC 20240.
(2) In cases involving eligibility questions that refer to the TTP
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
[[Page 76203]]
receiving the written inquiry from the tribe. Tribes may appeal denials
of a proposed use by the FHWA to: FHWA, 1200 New Jersey Ave. SE.,
Washington, DC 20590.
(b) To the extent practical, the deciding agency must consult with
the TTP Coordinating Committee before denying a request.
(c) BIA and FHWA will:
(1) Send copies of all eligibility determinations to the TTP
Coordinating Committee and BIA Regional offices;
(2) Coordinate all responses and if the requested agency fails to
issue a decision to the requesting tribe within the required time, the
proposed use will be deemed to be allowable for that specific project;
and
(3) Promptly make any final determination available on agency Web
sites.
Use of TTP and Cultural Access Roads
Sec. 170.114 What restrictions apply to the use of a tribal
transportation facility?
(a) All tribal transportation facilities listed in the approved
National Tribal Transportation Facility Inventory must be open and
available for public use as required by 23 U.S.C. 101(a)(31). However,
the public authority having jurisdiction over these roads or the
Secretary, in consultation with a tribe and applicable private
landowners, may restrict road use or close roads temporarily when:
(1) Required for public health and safety or as provided in Sec.
170.115.
(2) Conducting engineering and traffic analysis to determine
maximum speed limits, maximum vehicular size, and weight limits, and
identify needed traffic control devices; and
(3) Erecting, maintaining, and enforcing compliance with signs and
pavement markings.
(b) Consultation is not required whenever the conditions in
paragraph (a) of this section involve immediate safety or life-
threatening situations.
(c) A tribal transportation facility owned by a tribe or BIA may be
permanently closed only when the tribal government and the Secretary
agree. Once this agreement is reached, BIA must remove the facility
from the NTTFI and it will no longer generate funding and be ineligible
for expenditure of any TTP funds.
Sec. 170.115 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 tribal traditions, which may
include, for example:
(1) Sacred and medicinal sites;
(2) Gathering medicines or materials such as grasses for basket
weaving; and
(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 National Tribal
Transportation System Inventory if they meet the definition of a TTP
facility.
Sec. 170.116 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. 170.115(c).
Seasonal Transportation Routes
Sec. 170.117 Can TTP funds be used on seasonal transportation routes?
Yes. A tribe may use TTP funds on seasonal transportation routes
that are included in the national tribal transportation facility
inventory.
(a) Standards for seasonal transportation routes are found in Sec.
170.454. A tribe can also develop or adopt standards that are equal to
or exceed these standards.
(b) To help ensure the safety of the traveling public, construction
of a seasonal transportation route requires a right-of-way, easement,
or use permit.
TTP Housing Access Roads
Sec. 170.118 What terms apply to access roads?
(a) TTP housing access road means a public road on the TTP System
that provides access to a housing cluster.
(b) TTP housing street means a public road on the TTP System that
provides access to adjacent homes within a housing cluster.
(c) Housing cluster means three or more existing or proposed
housing units.
Sec. 170.119 Are housing access roads and housing streets eligible
for TTP funding?
Yes. TTP housing access roads and housing streets on public rights-
of-way are eligible for construction, reconstruction, and
rehabilitation funding under the TTP. 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).
Toll, Ferry, and Airport Facilities
Sec. 170.120 How can tribes use Federal highway funds for toll and
ferry facilities?
(a) A tribe can use Federal-aid highway funds, including TTP 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.
------------------------------------------------------------------------
To initiate construction of . . . A tribe must . . .
------------------------------------------------------------------------
(1) Toll highway, bridge, or tunnel....
(i) Meet and follow the
requirements in 23 U.S.C. 129;
and.
(ii) If TTP funds are used,
enter into a self-governance.
(2) Ferry boat or ferry................ Meet and follow the
requirements in 23 U.S.C.
129(c).
------------------------------------------------------------------------
(b) A tribe can use TTP funds to fund 100 percent of the conversion
or construction of a toll facility.
(c) If a tribe obtains non-TTP Federal funding for the conversion
or construction of a toll facility, the tribe may use TTP funds to
satisfy any matching fund requirements.
[[Page 76204]]
Sec. 170.121 Where is information about designing and operating a
toll facility available?
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. 170.122 When can a tribe use TTP funds for airport facilities?
(a) A tribe can use TTP funds for construction of airport and
heliport access roads, if the access roads are open to the public.
(b) A tribe cannot use TTP funds to construct or improve runways,
airports or heliports. Tribes can use TTP funds for maintaining airport
runways, heliport pads and lighting under Sec. 170.805.
Recreation, Tourism, and Trails
Sec. 170.123 Can a tribe use Federal funds for its recreation,
tourism, and trails program?
Yes. A tribe, tribal organization, tribal consortium, or BIA may
use TTP funds for recreation, tourism, and trails programs if the
programs are included in the TTPTIP. Additionally, the following
Federal programs may be possible sources of Federal funding for
recreation, tourism, and trails projects and activities;
(a) Federal Lands Access Program (23 U.S.C. 204);
(b) Tribal High Priority Projects Program (Section 1123 of MAP-21);
(c) National Highway Performance Program (23 U.S.C. 119);
(d) Transportation Alternatives (23 U.S.C. 213);
(e) Surface Transportation Program (23 U.S.C. 133);
(f) Other funding from other Federal departments; and
(g) Other funding that Congress may authorize and appropriate.
Sec. 170.124 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) Tribes seeking to obtain funding from a State under the
programs identified in Sec. 170.123(c) through (g) should contact the
State directly to determine eligibility, contracting opportunities,
funding mechanisms, and project administration requirements.
(c) In order to expend any Federal transportation funds, a tribe
must ensure that the eligible project/program is listed on an FHWA
approved TIP or STIP.
Sec. 170.125 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 include in a recreation, tourism, and trails program:
(1) Transportation planning for tourism and recreation travel;
(2) Adjacent public 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 TTP funds for any activity that is eligible for
Federal funding under any provision of title 23 U.S.C.
Sec. 170.126 Can roads be built in roadless and wild areas?
Under 25 CFR part 265, no roads can be built in an area designated
as a roadless and wild area.
Highway Safety Functions
Sec. 170.127 What funds are available for a tribe's highway safety
activities?
(a) Funds are made available for a tribe's highway safety
activities through a TTP set-aside established in 23 U.S.C. 202(e). The
funds are to be allocated based on identification and analysis of
highway safety issues and opportunities on tribal lands. A call for
projects will be made annually for these funds through a Notice of
Funding Availability published in the Federal Register.
(b) Tribes may use their TTP funds made available through 23 U.S.C.
202(b) for highway safety activities as well as seek grant and program
funding from appropriate State and local agencies and private grant
organizations.
(c) The following programs may make funds available to tribes for
safety projects and activities:
(1) FHWA Highway Safety Improvement Program (HSIP) 23 U.S.C. 148;
(2) Elimination of Hazards Relating to Railway Highway Crossings
(23 U.S.C. 130, 23 CFR 924);
(3) State and Community Highway Safety Grant Program;
(4) State Traffic Safety Information System Improvement Grants
Program;
(5) NHTSA--Alcohol-Impaired Driving Countermeasures Incentive
Program;
(6) NHTSA--Occupant Protection Incentive Grant Program;
(7) NHTSA--Child Safety and Child Booster Seat Incentive Program;
and
(8) BIA--Indian Highway Safety Program 25 CFR part 181;
(9) Funding for highway safety activities from the U.S. Department
of Health and Human Services; and
(10) Other funding that Congress may authorize and appropriate.
(d) A project that uses TTP funds made available under 23 U.S.C.
202(b) or TTP set-aside funding established in 23 U.S.C. 202(e) must be
identified on a FHWA-approved TTPTIP before any funds are expended.
Sec. 170.128 What activities are eligible for TTP safety funds?
(a) Funds made available under 23 U.S.C. 202(e) may be used for
projects and activities that improve safety in one or more of the
following categories:
(1) Planning activities;
(2) Enforcement and emergency management;
(3) Education; and
(4) Engineering projects.
(b) Eligible activities for each of the categories listed in
paragraph (a) of this section will be included in the annual Notice of
Funding Availability. Other activities proposed by tribes must be
requested from BIA or FHWA under Sec. 170.113.
(c) The BIA Indian Highway Safety Program may be another resource
for safety funding.
[[Page 76205]]
Sec. 170.129 How will tribes receive safety funds?
Funds available to tribes may be included in the tribe's self-
determination contracts, self-governance agreements, program
agreements, and other appropriate agreements.
Sec. 170.130 How can tribes obtain non-TTP funds for highway safety
projects?
There are two methods to obtain National Highway Traffic Safety
Administration (NHTSA) and other, non-TTP, 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 request an
ISDEAA contract or agreement, or other appropriate agreement for these
projects.
(b) FHWA provides funds to the States under 23 U.S.C. 402 and 405.
States annually solicit proposals from tribes and local governments.
Tribes seeking to obtain funding from the States under these programs
should contact the State directly to determine eligibility, contracting
opportunities, funding mechanisms and project administration
requirements.
Transit Facilities
Sec. 170.131 How do tribes identify transit needs?
Tribes identify transit needs during the tribal transportation
planning process (see subpart D of this part). Transit projects using
TTP funds must be included in the FHWA-approved TTPTIP.
Sec. 170.132 What Federal funds are available for a tribe's transit
program?
Title 23 U.S.C. authorizes use of TTP funds for transit facilities
as defined in this part. There are many additional sources of Federal
funds for tribal transit programs, including 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 at www.nationalrtap.org.
(a) Department of Transportation: Formula Grants for Public
Transportation on Indian Reservations under 49 U.S.C. 5311.
(b) Department of Agriculture: Community facilities loans; rural
development loans; business and industrial loans; rural enterprise
grants; commerce, public works and economic development grants; and
economic adjustment assistance.
(c) Department of Housing and Urban Development: Community
development block grants, supportive housing, tribal housing loan
guarantees, resident opportunity and support services.
(d) Department of Labor: Native American employment and training,
welfare-to-work grants.
(e) Department of Transportation: Welfare-to-Work, Tribal
Transportation 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.
(f) Department of Health and Human Services: 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. 170.133 May a tribe or BIA use TTP funds as matching funds?
TTP funds may be used to meet matching or cost participation
requirements for any Federal or non-Federal transit grant or program.
Sec. 170.134 What transit facilities and activities are eligible for
TTP funding?
Transit facilities and activities eligible for TTP funding include,
but are not limited to:
(a) Acquiring, constructing, operating, supervising or inspecting
new, used or refurbished equipment, buildings, facilities, buses, vans,
water craft, and other vehicles for use in public 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) Public transportation improvements that enhance economic and
community development, such as bus shelters in shopping centers,
parking lots, pedestrian improvements, and support facilities that
incorporate other community services;
(h) Passenger shelters, bus stop signs, and similar passenger
amenities;
(i) Introduction of new public 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;
(l) Transit; and
(m) Any additional activities authorized by 49 U.S.C. 5311.
TTP Coordinating Committee
Sec. 170.135 What is the TTP Coordinating Committee?
(a) Under this part, the Secretaries will establish a TTP
Coordinating
Committee that:
(1) Provides input and recommendations to BIA and FHWA in
developing TTP regulations, 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 24 tribal regional representatives
(two from each BIA Region) and two non-voting Federal representatives
(FHWA and BIA).
(c) The Secretary must select the regional tribal representatives
from nominees officially submitted 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) Tribal nominees must be tribal governmental officials or tribal
employees with authority to act for the tribal government.
(d) For purposes of continuity, the Secretary will appoint tribal
representatives from each BIA region to 3-year terms in a manner that
only one-third of the tribal representatives change every year.
(e) The Secretary will provide guidance regarding replacement of
representatives should the need arise.
Sec. 170.136 What are the TTP 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 TTP Stewardship Plan;
(2) TTP policy and procedures;
(3) TTP eligible activities determination;
(4) TTP transit policy;
(5) TTP regulations;
(6) TTP management systems policy and procedures; and
(7) National tribal transportation needs.
[[Page 76206]]
(b) The Committee may establish work groups to carry out its
responsibilities.
(c) The Committee also reviews and provides recommendations on TTP
national concerns (including the implementation of this part) brought
to its attention.
(d) Committee members are responsible for disseminating TTP
Coordinating Committee information and activities to tribes within
their respective BIA Regions.
Sec. 170.137 How does the TTP Coordinating Committee conduct
business?
The Committee holds at least two meetings a year. In order to
maximize participation by the tribal public, the Committee shall submit
to the Secretary its proposed meeting dates and locations for each
fiscal year no later than October 1st. Subject to approval by the
Secretary, 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 representation from eight BIA Regions.
(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 TTP
management and oversight funds, not to exceed $150,000 annually.
Tribal Technical Assistance Centers
Sec. 170.138 What are Tribal Technical Assistance Centers?
Tribal Technical Assistance Centers (TTAC), which are also referred
to as Tribal Technical Assistance Program Centers are authorized under
23 U.S.C. 504(b)(3). The centers assist tribal governments and other
TTP participants in extending their technical capabilities by providing
them greater access to transportation technology, training, and
research opportunities. Complete information about the centers and the
services they offer is available on at http://ltap.org/about/ttap.php.
Appendix to Subpart B--Items for Which TTP Funds May Be Used
TTP funds must be used to pay the cost of those items identified
in 23 U.S.C. 202(a)(1), including:
(a) TTP funds can be used for the following planning and design
activities:
(1) Planning and design of Tribal Transportation Facilities.
(2) Transportation planning activities, including planning for
tourism and recreational travel.
(3) Development, establishment, and implementation of tribal
transportation management systems such as safety, bridge, pavement,
and congestion management.
(4) Tribal transportation plans and transportation improvement
programs (TIPS).
(5) Coordinated technology implementation program (CTIP)
projects.
(6) Traffic engineering and studies.
(7) Identification and evaluation of accident prone locations.
(8) Tribal transportation standards.
(9) Preliminary engineering studies.
(10) Interagency program/project formulation, coordination and
review.
(11) Environmental studies and archeological investigations
directly related to transportation programs and projects.
(12) Costs associated with obtaining permits and/or complying
with tribal, Federal, State, and local environmental, archeological
and natural resources regulations and standards.
(13) 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).
(14) Architectural and landscape engineering services related to
transportation programs.
(15) Engineering design related to transportation programs,
including permitting activities.
(16) Inspection of bridges and structures.
(17) Tribal Transportation Assistance Centers (TTACs).
(18) Safety planning, programming, studies and activities.
(19) Tribal employment rights ordinance (TERO) fees.
(20) 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.
(21) Planning, design and coordination for Innovative Readiness
Training projects.
(22) Transportation planning and project development activities
associated with border crossings on or affecting tribal lands.
(23) Public meetings and public involvement activities.
(24) Leasing or rental of equipment used in transportation
planning or design programs.
(25) Transportation-related technology transfer activities and
programs.
(26) Educational activities related to bicycle safety.
(27) Planning and design of mitigation of damage to wildlife,
habitat, and ecosystems caused by a transportation project.
(28) Evaluation of community impacts such as land use, mobility,
access, social, safety, psychological, displacement, economic, and
aesthetic impacts.
(29) 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 surveys, cost of examination
and abstract of title, the cost of certificate of title, advertising
costs, and any fees incidental to such acquisition.
(30) Cost associated with relocation activities including
financial assistance for displaced businesses or persons and other
activities as authorized by law.
(31) On the job education including classroom instruction and
pre-apprentice training activities related to transportation
planning and design.
(32) Other eligible activities as approved by FHWA.
(33) Any additional activities identified by TTP Coordinating
Committee guidance and approved by the appropriate Secretary (see
Sec. 170.136).
(34) Indirect general and administrative costs; and
(35) Other eligible activities described in this part.
(b) TTP funds can be used for the following construction and
improvement activities:
(1) Construction, reconstruction, rehabilitation, resurfacing,
restoration, and operational improvements for tribal transportation
facilities.
(2) Construction or improvement of tribal transportation
facilities 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. 170.131 through 170.134 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
transportation facilities.
(9) Road sealing.
(10) The placement of a double bituminous surface and chip seals
during the construction of an approved project (as the
[[Page 76207]]
non-final course) or that form the final surface of low volume
roads.
(11) Seismic retrofit, replacement, rehabilitation, and painting
of road bridges.
(12) Application of calcium magnesium acetate, sodium acetate/
formate, or other environmentally acceptable, minimally corrosive
anti-icing and de-icing compositions on road bridges, and approaches
thereto and other elevated structures.
(13) Installation of scour countermeasures for road 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) Standard regulatory, warning, guide, and other official
traffic signs, including dual language signs, which comply with the
MUTCD that are part of transportation projects. TTP funds may also
be used on interpretive signs (signs intended for viewing only by
pedestrians, bicyclists, and occupants of vehicles parked out of the
flow of traffic) 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 a Tribal Transportation Facility.
(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 TTP.
(24) Force account and day labor work, including materials and
equipment rental, being performed in accordance with approved plans
and specifications.
(25) Experimental features where there is a planned monitoring
and evaluation schedule.
(26) Capital and operating costs for traffic monitoring,
management, and control facilities and programs.
(27) 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 facilities and 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 TTP 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 public 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 TTP projects.
(43) Seasonal transportation routes, including snowmobile
trails, ice roads, overland winter roads, and trail markings. (See
Sec. 170.117.)
(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 TTP construction
projects such as equipment operations, surveying, construction
monitoring, testing, inspection and project management.
(46) Installation of advance technological devices on TTP
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 for transportation related
activities.
(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) Purchasing, leasing or renting of construction equipment.
All equipment purchase request submittals must be accompanied by
written cost analysis and approved by FHWA.
(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), other cooperating Federal agencies, states and their
political subdivisions, Tribal governments, or other appropriate
non-governmental organizations.
(51) Emergency repairs on tribal transportation facilities.
(52) Public meetings and public involvement activities.
(53) Construction of roads on dams and levees.
(54) Transportation alternative activities as defined in 23
U.S.C. 101(a).
(55) Modification of public sidewalks adjacent to or within
tribal 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. 170.123 through 170.126.
(60) Development of scenic overlooks and information centers.
(61) Natural habitat and wetlands mitigation efforts related to
TTP road and bridge projects, including:
(i) Participation in natural habitat and wetland mitigation
banks, including banks authorized under the Water Resources
Development Act, and
(ii) 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 (see Sec. 170.115).
(65) Other eligible items as approved by the Federal Highway
Administration (FHWA).
(66) Any additional activities proposed by a Tribe or the TTP
Coordinating Committee and approved by the appropriate Secretary
(see Sec. Sec. 170.113 and 170.136).
(67) Other eligible activities identified in this part.
(c) TTP funds can be used for maintenance activities as defined
in Subpart G of this regulation.
(d) Each of the items identified in this appendix must be
interpreted in a manner that permits, rather than prohibits, a
proposed use of funds.
Subpart C--Tribal Transportation Program Funding
Sec. 170.200 How do BIA and FHWA determine the TTP funding amount?
The annual TTP funding amount available for distribution is
determined as follows:
[[Page 76208]]
(a) The following set-asides are applied to the tribal
transportation program before the determination of final tribal shares:
(1) Tribal transportation planning (23 U.S.C. 202(c));
(2) Tribal transportation facility bridges (23 U.S.C. 202(d));
(3) Tribal safety (23 U.S.C. 202(e));
(4) Administrative expenses (23 U.S.C. 202(a)(6)); and
(5) Tribal supplemental program (23 U.S.C. 202(b)(3)(C)).
(b) After deducting the set asides identified in paragraph (a) of
this section, on October 1 of each fiscal year, the Secretary will
distribute the remainder authorized to be appropriated for the tribal
transportation program among Indian tribes as follows:
(1) For fiscal year 2014:
(i) For each Indian tribe, 60 percent of the total relative need
distribution factor and population adjustment factor for the fiscal
year 2011 funding amount made available to that Indian tribe; and
(ii) The remainder using tribal shares as described in Sec.
170.201 and tribal supplemental funding as described in Sec. 170.202.
(2) For fiscal year 2015:
(i) For each Indian tribe, 40 percent of the total relative need
distribution factor and population adjustment factor for the fiscal
year 2011 funding amount made available to that Indian tribe; and
(ii) The remainder using tribal shares as described in Sec.
170.201 and tribal supplemental funding as described in Sec. 170.202.
(3) For fiscal year 2016 and thereafter:
(i) For each Indian tribe, 20 percent of the total relative need
distribution factor and population adjustment factor for the fiscal
year 2011 funding amount made available to that Indian tribe; and
(ii) The remainder using tribal shares as described in Sec.
170.201 and tribal supplemental funding as described in Sec. 170.202.
Sec. 170.201 What is the statutory distribution formula for tribal
shares?
(a) Tribal shares are determined by using the national tribal
transportation inventory as calculated for fiscal year 2012, and the
most recent data on American Indian and Alaska Native population within
each Indian tribe's American Indian/Alaska Native Reservation or
Statistical Area, as computed under the Native American Housing
Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101 et seq.),
in the following manner:
(1) 27 percent in the ratio that the total eligible road mileage in
each tribe bears to the total eligible road mileage of all American
Indians and Alaskan Natives. For the purposes of this calculation,
eligible road mileage will be computed using only facilities included
in the inventory described below:
(i) Were included in the Bureau of Indian Affairs system inventory
prior to October 1, 2004;
(ii) Are owned by an Indian tribal government;
(iii) Are owned by the Bureau of Indian Affairs.
(2) 39 percent in the ratio that the total population in each tribe
bears to the total population of all American Indians and Alaskan
Natives; and
(3) 34 percent will be initially divided equally among each BIA
Region.
(b) The share of funds will be distributed to each Indian tribe
within the region in the ratio that the average total relative need
distribution factors and population adjustment factors from fiscal
years 2005 through 2011 for a tribe bears to the average total of
relative need distribution factors and population adjustment factors
for fiscal years 2005 through 2011 in that region.
Sec. 170.202 How do BIA and FHWA determine and distribute the tribal
supplemental program funds?
(a) The total amount of funding made available for the tribal
supplemental program is determined as follows:
(1) If the amount made available for the tribal transportation
program is less than or equal to $275,000,000, the tribal supplemental
funding amount will equal 30 percent of such amount.
(2) If the amount made available for the tribal transportation
program exceeds $275,000,000, the tribal supplemental funding will
equal:
(i) $82,500,000; plus
(ii) 12.5 percent of the amount made available for the tribal
transportation program in excess of $275,000,000.
(b) The tribal supplemental program funds will be distributed as
follows:
(1) Initially, the tribal supplemental program funding determined
in paragraph (a) of this section will be designated among the BIA
Regions in proportion to the regional total of tribal shares based on
the cumulative tribal shares of all Indian tribes within the region
under Sec. 170.201.
(2) After paragraph (b)(1) of this section is completed, the tribal
supplemental program funding designated for each region will be
distributed among the tribes within the region as follows:
(i) The Secretary will determine which tribes would be entitled
under Sec. 170.200 to receive in a fiscal year less funding than they
would receive in fiscal year 2011 pursuant to the relative need
distribution factor and population adjustment factor, as described in
25 CFR part 170, subpart C (in effect as of July 5, 2012); and
(ii) The combined amount that such Indian tribes would be entitled
to receive in fiscal year 2011 pursuant to such relative need
distribution factor and population adjustment factor in excess of the
amount that they would be entitled to receive in the fiscal year under
Sec. 170.200.
(c) Subject to paragraph (d) of this section, the Secretary will
distribute a combined amount to each tribe that meets the criteria
described in paragraph (b)(2)(i) of this section a share of funding in
proportion to the share of the combined amount determined under
paragraph (b)(2)(ii) of this section attributable to such Indian tribe.
(d) A tribe may not receive under paragraph (b)(2) of this section
and based on its tribal share under Sec. 170.200 a combined amount
that exceeds the amount that such Indian tribe would be entitled to
receive in fiscal year 2011 pursuant to the relative need distribution
factor and population adjustment factor, as described in 25 CFR part
170, subpart C.
(e) If the amount made available for a region under paragraph
(b)(1) of this section exceeds the amount distributed among Indian
tribes within that region under paragraph (b)(2) of this section, The
Secretary will distribute the remainder of such region's funding under
paragraph (b)(1) of this section among all tribes in that region in
proportion to the combined amount that each such tribe received under
Sec. 170.200 and paragraphs (b), (c), and (d) of this section.
Sec. 170.203 How do BIA and FHWA allocate tribal transportation
planning funds?
Upon request of a tribal government and approval by the BIA
Regional Office or FHWA, BIA or FHWA provides tribal transportation
planning funds described in Sec. 170.200(a)(1) pro rata to the tribe's
final percentage as determined under Sec. Sec. 170.200 through
170.202. The tribal transportation planning funds will be distributed
to the tribes under applicable BIA and FHWA contracting procedures.
Sec. 170.204 What restrictions apply to TTP funds provided to tribes?
All TTP funds provided to tribes can be expended only on eligible
activities identified in Appendix A to Subpart B, and included in an
FHWA approved TIP per 23 U.S.C. 202(b)(4)(B).
Sec. 170.205 What is the timeframe for distributing TTP funds?
Not later than 30 days after the date on which funds are made
available to
[[Page 76209]]
the Secretary under this paragraph, the funds will be distributed to,
and made available for immediate use by, eligible Indian tribes, in
accordance with the formula for distribution of funds under the tribal
transportation program. (See 23 U.S.C. 202(b)(4)(A).)
TTP Inventory and Long-Range Transportation Plan
Sec. 170.225 How does a long-range transportation plan relate to the
National Tribal Transportation Inventory?
A long-range transportation plan (LRTP) is developed using a
uniform process that identifies the transportation needs and priorities
of a tribe. The National Tribal Transportation Inventory NTTFI (see
Sec. 170.442) is derived from transportation facilities identified
through an LRTP. It is also a means for identifying projects and
activities for the TTP and the Tribal High Priority Projects Program
(THPPP) described in Subpart I.
Formula Data Appeals
Sec. 170.226 How can a tribe appeal its share calculation?
(a) In calculating tribal shares, BIA and FHWA use population data
(which may be appealed) and specific prior-year data (which may not be
appealed). Share calculations are based upon the requirements of 23
U.S.C. 202(b)(3)(B).
(b) Any appeal of a tribe's population figure must be directed to
Department of Housing and Urban Development. The population data used
is the most recent data on American Indian and Alaska Native population
within each Indian Tribe's American Indian/Alaska Native Reservation or
Statistical Area. This data is computed under the Native American
Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101
et seq.).
(b) Appeal processes regarding inventory submissions are found at
Sec. 170.444(c), design standards at Sec. 170.457, and new uses of
funds at Sec. 170.113.
Flexible Financing
Sec. 170.227 Can tribes use flexible financing for TTP projects?
Yes. Tribes may use flexible financing in the same manner as States
to finance TTP 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 TTP
funds to satisfy the instruments.
(b) Under 23 U.S.C. 603, the Secretary of Transportation may enter
into an agreement for secured loans or lines of credit for TTP projects
meeting the requirements contained in 23 U.S.C. 602. Tribes or BIA may
service Federal credit instruments. The secured loans or lines of
credit must be paid from tolls, user fees, payments owing to the
obligor under a public-private partnership or other dedicated revenue
sources.
(c) Tribes may use TTP funds as collateral for loans or bonds to
finance TTP projects. Upon the request of a tribe, a BIA region or FHWA
will provide necessary documentation to banks and other financial
institutions.
Sec. 170.228 Can a tribe use TTP funds to leverage other funds or to
pay back loans?
(a) A tribe can use TTP funds to leverage other funds.
(b) A tribe can use TTP funds to pay back loans or other finance
instruments that were used for a project that:
(1) The tribe paid for in advance of the current year using non-TTP
funds;
(2) Was included in FHWA-approved TTPTIP; and
(3) Was included in the NTTFI at the time of construction.
Sec. 170.229 Can a tribe apply for loans or credit from a State
infrastructure bank?
Yes. A tribe can apply for loans or credit from a State
infrastructure bank. Upon the request of a tribe, BIA region or FHWA
will provide necessary documentation to a State infrastructure bank to
facilitate obtaining loans and other forms of credit for a TTP project.
Sec. 170.230 How long must a project financed through flexible
financing remain on a TTPTIP?
Tribes must identify each TTP project financed through flexible
financing along with the repayment amount on their annual TTPTIP until
the flexible financing instrument has been satisfied.
Subpart D--Planning, Design, and Construction of Tribal
Transportation Program Facilities
Transportation Planning
Sec. 170.400 What is the purpose of transportation planning?
The purpose of transportation planning is to address current and
future transportation, land use, economic development, traffic demand,
public safety, health, and social needs.
Sec. 170.401 What are BIA's and FHWA's roles in transportation
planning?
Except as provided in Sec. 170.402, the functions and activities
that BIA and/or FHWA must perform for the TTP are:
(a) Preparing, reviewing, and approving the TTPTIP;
(b) Oversight of the NTTFI;
(c) Performing quality assurance and validation of NTTFI data
updates as needed;
(d) Coordinating with States and their political subdivisions, and
appropriate planning authorities on regionally significant TTP
projects;
(e) Providing technical assistance to tribal governments;
(f) Developing TTP budgets;
(g) Facilitating public involvement;
(h) Participating in transportation planning and other
transportation-related meetings;
(i) Performing quality assurance and validation related to
performing traffic studies;
(j) Performing preliminary project planning or project
identification studies;
(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 operating with a Program Agreement or BIA self-
determination contract, TTP Agreement, 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 TTP
projects;
(2) Preparing NTTFI 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 TTP 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 or project
identification studies.
[[Page 76210]]
Sec. 170.403 What TTP funds can be used for transportation planning?
Funds as defined in 23 U.S.C. 202(c) are allocated to an Indian
tribal government to carry out transportation planning. Tribes may also
identify transportation planning as a priority use for their TTP tribal
share formula funds. In both cases, the fund source and use must be
clearly identified on a FHWA approved TTPTIP.
Sec. 170.404 Can tribes use transportation planning funds for other
activities?
Yes. After completion of a tribe's annual planning activities,
unexpended planning funds made available under 23 U.S.C. 202 (c) may be
used on eligible projects or activities provided that they are
identified on a FHWA approved TTPTIP.
Sec. 170.405 How must tribes use planning funds?
TTP Program funds as defined in 23 U.S.C. 202(c) are available to a
tribal government to support tribal transportation planning and
associated activities, including:
(a) Attending transportation planning meetings;
(b) Pursuing other sources of funds; and
(c) Developing the tribal priority list or any of the
transportation planning functions and activities listed in Sec.
170.402.
Sec. Sec. 170.406--170.409 [Reserved]
Sec. 170.410 What is the purpose of long-range transportation
planning?
(a) The purpose of long-range transportation planning is to clearly
demonstrate a tribe's transportation needs and to develop strategies to
meet these needs. These strategies should address future land use,
economic development, traffic demand, public safety, and health and
social needs. The planning process should result in a long-range
transportation plan (LRTP).
(b) The time horizon for a LRTP should be 20 years to match State
transportation planning horizons.
Sec. 170.411 What should a long-range transportation plan include?
A long-range transportation plan should 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 TTP long-range transportation plan
developed and approved?
(a) The tribal TTP long-range transportation plan is developed by
either:
(1) A tribe working through a self-determination contract, self-
governance agreement, Program Agreement; and other appropriate
agreement; or
(2) BIA or FHWA upon request of, and in consultation with, a tribe.
The tribe and BIA or FHWA need to agree on the methodology and elements
included in development of the TTP long-range transportation plan along
with time frames before work begins. The development of a long-range
transportation plan on behalf of a tribe will be funded from the
tribe's share of the TTP program funds.
(b) During the development of the TTP long-range transportation
plan, the tribe and BIA or FHWA will jointly conduct a midpoint review.
(c) The public reviews a draft TTP 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 TTP long-range transportation plan.
Sec. 170.413 What is the public role in developing the long-range
transportation plan?
BIA, FHWA, or the tribe must solicit public involvement. If there
are no tribal policies regarding public involvement, a tribe must use
the procedures in this section. Public involvement begins at the same
time long-range transportation planning begins and covers the range of
users, from stakeholders and private citizens to major public and
private entities. Public involvement must include either meetings or
notices, or both.
(a) For public meetings, BIA, FHWA 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, FHWA, 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, FHWA, 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, FHWA, 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 TTP long-range transportation plan
to develop transportation projects as documented in a tribal priority
list or TTIP and to identify and justify the tribe's updates to the
NTTFI. To be consistent with State, MPO and RPO planning practices, the
TTP long-range transportation plan must be reviewed annually and
updated at least every 5 years.
Sec. 170.415 What are pre-project planning and project identification
studies?
(a) Pre-project planning and project identification studies are
part of overall transportation planning and includes the activities
conducted before final project approval on the TTP Transportation
Improvement Program (TTPTIP). These processes provide the information
necessary to financially constrain and program a project on the four-
year TTPTIP but are not the final determination that projects will be
designed and built. These activities include:
(1) Preliminary project cost estimates;
(2) Certification of public involvement;
(3) Consultation and coordination with States and/or MPO's for
regionally significant projects;
(4) Preliminary needs assessments; and
(5) Preliminary environmental and archeological reviews.
[[Page 76211]]
(b) BIA and/or FHWA, upon request of the tribe, will work
cooperatively with tribal, State, regional, and metropolitan
transportation planning organizations concerning the leveraging of
funds from non-TTP Program sources and identification of other funding
sources to expedite the planning, design, and construction of projects
on the TTPTIP.
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) Is not financially constrained; and
(b) Is provided to BIA or FHWA by official tribal action, unless
the tribal government submits a Tribal Transportation Improvement
Program (TTIP).
Transportation Improvement Programs
Sec. 170.421 What is the Tribal Transportation Improvement Program
(TTIP)?
The TTIP:
(a) Is developed from the Tribe's tribal priority list or long-
range transportation plan and must be consistent with the tribal LRTP;
(b) Is financially constrained;
(c) Must contain all TTP-funded projects and eligible activities
programmed in the next 4 years and identify the implementation year of
each project or activity. Although 23 U.S.C. 134(j)(1)(D) indicates
that a TIP must be updated every four years, Tribes are encouraged to
update the TIP annually to best represent the plans of the tribe;
(d) May include other Federal, State, county, and municipal,
transportation projects initiated by or developed in cooperation with
the tribal government;
(e) Must include public involvement;
(f) Is reviewed and updated as necessary by the tribal government;
(g) Can be changed only by the tribal government; and
(h) After approval by the tribal government, must be forwarded to
BIA or FHWA by resolution or by tribally authorized government action.
Sec. 170.422 What is the TTP Transportation Improvement Program?
(a) The TTP Transportation Improvement Program (TTPTIP):
(1) Is financially constrained;
(2) Includes eligible projects and activities selected by tribal
governments from TTIPs or other tribal actions;
(3) Is organized by year, State, and tribe; and
(4) May include projects and activities predominately funded with
other funding sources. In these cases all fund sources are to be
identified on the TTPTIP.
(b) When approved by FHWA, the TTPTIP authorizes the eligibility of
projects or activities for expenditure of TTP funds. However, all other
requirements associated with that project or activity must be satisfied
before expenditure actually occurs.
Sec. 170.423 How are projects placed on the TTPTIP?
(a) BIA or FHWA coordinates with the tribe to select projects from
the TTIP or tribal priority list for inclusion on the 4-year TTPTIP as
follows:
(1) Tribe, or tribe with assistance from BIA or FHWA, submits
project and activity information as documented through pre-project
planning or project identification studies within the financial
constraints identified above), designating estimated dollar amounts for
each project and activity.
(2) Tribe submits a certification of public involvement back to BIA
or FHWA along with a tribal resolution or tribal authorized government
action requesting approval.
(3) BIA/FHWA enters submitted data into the federal system
developing the tribe's proposed TTPTIP.
(4) Proposed TTPTIP goes through BIA/FHWA approval process. Before
approving a project on a non-BIA or non-tribal road that is eligible
for funds apportioned in a State under 23 U.S.C. 104, the Secretary
will determine that the obligation of the TTP funds is in the best
interest of the program and is supplementary to and not in lieu of the
obligation of a fair and equitable share of the funds apportioned to
the State under 23 U.S.C. 104.
(5) A copy of the approved final TTPTIP is returned to Tribe.
(b) A tribe that does not generate enough annual funding under the
TTP Program funding formula to complete a project may either:
(1) Enter a consortium of tribes and delegate authority to the
consortium to develop the TTIP and tribal control schedule;
(2) Enter into agreement with other tribes to permit completion of
the project; or
(3) Apply for TTPHPP funding under subpart I.
(c) Tribes may seek flexible financing alternatives as described in
subpart C.
Sec. 170.424 How does the public participate in developing the
TTPTIP?
Public involvement is required in the development of the TTPTIP.
(a) The tribe must publish a notice in local and/or tribal
newspapers when the draft tribal or TTPTIP 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. A copy of the
notice will be made available to BIA or FHWA upon request.
(b) The tribe may hold public meetings at which the public may
comment orally or in writing.
(c) The tribe, the State transportation department, or MPO may
conduct public involvement activities.
Sec. 170.425 How do BIA and FHWA conduct the annual update to the
TTPTIP?
(a) The TTPTIP annual update allows:
(1) Changes to project schedules and amounts for projects and
activities; and
(2) Adding transportation projects and activities planned for the
next 4 years.
(b) During the first quarter of the fiscal year, tribes are
notified of the annual update and provided with the estimated funding
amounts for the next fiscal year, copies of the previous year TTPTIP,
and instructions for submitting required data.
(c) The tribe reviews any new transportation planning information,
priority lists, and TTIP, using the procedures in Sec. 170.423, and
forwards the documentation to BIA Regional Office or FHWA.
(d) BIA or FHWA review all submitted information with the tribes,
and add agreed-upon updates, including all previously approved
amendments (see Sec. 170.427), to the TTPTIP so that the Secretaries
can approve the new updated TTPTIP before the start of the next fiscal
year.
Sec. 170.426 How is the TTPTIP approved?
The approval process for the TTPTIP is:
(a) The BIA Regional Office and FHWA work together to review and
concur on the TTPTIPs and then forward the documentation to the
Secretaries for review and approval;
(b) When approved, copies of the approved TTPTIP are made available
to FHWA, BIA Regional Offices, and tribal governments.
(c) FHWA provides copies of the approved TTPTIP to the FHWA
division office for transmittal to the State transportation department
for inclusion in the State Transportation Improvement Program (STIP)
without further action.
Sec. 170.427 How can a tribe amend an approved TTPTIP?
(a) The current-year TTPTIP may be amended to reflect new proposed
additional projects and activities or a significant change in available
fiscal
[[Page 76212]]
year TTP funding. All tribal requests to BIA or FHWA for TTPTIP
amendments must be accompanied by an amended TTIP and a tribal
resolution or tribal authorized government action requesting the
amendment.
(b) BIA's regional office or FHWA 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 TTPTIP amendment contains a project not listed on the current
approved TTPTIP, BIA must submit the proposed amendment to FHWA for
final approval.
(c) An amendment to a previously approved TTPTIP must use the same
public involvement process that was used to develop the original
TTPTIP.
Sec. 170.428 How is the State Transportation Improvement Program
related to the TTPTIP?
FHWA will annually provide each State's transportation department
with the most current FHWA approved TTPTIP for the Tribes within that
State. This will ensure that approved TTPTIP updates and amendments are
included with the STIP.
Public Hearings
Sec. 170.435 When is a public hearing required?
The tribe, or BIA or FHWA after consultation with the appropriate
tribe and other involved agencies, determines whether or not a public
hearing is needed for a TTPTIP, a long-range transportation plan, or a
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 TTP planning and projects
funded?
Public hearings for a Tribe's TTIP or long-range transportation
plan are funded using the tribe's funds as described in Sec. 170.403.
Sec. 170.437 If there is no hearing, how must BIA, FHWA, or a tribe
inform the public?
(a) When no public hearing for a TTP project is scheduled, the BIA,
FHWA, or a Tribe 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 will send
a copy of the notice to the affected tribe.
Sec. 170.438 How must BIA, FHWA, or a tribe inform the public of when
a hearing is held?
(a) When BIA, FHWA, or a tribe holds a hearing under this part, it
must notify the public of the hearing by publishing a notice with
information about the project, how to attend the hearing, and where
copies of documents can be obtained or viewed.
(b) BIA or the tribe must publish the notice by:
(1) Posting the notice and publishing it in a newspaper of general
circulation at least 30 days before the public hearing; and,
(2) Sending a courtesy copy of the notice to each affected tribe
and BIA Regional Office.
(c) A second notice for a hearing is optional.
Sec. 170.439 How is a public hearing conducted?
(a) Presiding official. BIA or FHWA appoints a tribal or Federal
official to preside over the public hearing. The presiding official
must encourage 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 TTP projects and activities; and
(3) The presiding official informs the hearing audience of the
appropriate procedures for a proposed TTP 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 under the Uniform Relocation Assistance 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 must be present to answer questions.
(e) Opportunity for comment. Comments are received as follows:
(1) Oral statements at the hearing;
(2) Written statements submitted at the hearing; and
(3) Written statements 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?
Within 20 working days after the public hearing, the presiding
official will issue and post at the hearing site a statement that:
(a) Summarizes the results of the hearing;
(b) Explains any needed further action;
(c) Explains how the public may request a copy; and
(d) 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
under 25 CFR part 2.
TTP Facility Inventory
Sec. 170.442 What is the National Tribal Transportation Facility
Inventory?
(a) The National Tribal Transportation Facility Inventory (NTTFI),
is defined under Sec. 170.5 of this part.
(b) BIA, FHWA, or tribes can also use the NTTFI to assist in
transportation and project planning, justify expenditures, identify
transportation needs, maintain existing TTP facilities, and develop
management systems.
(c) The Secretaries may include additional transportation
facilities in the NTTFI if the additional facilities are included in a
uniform and consistent manner nationally.
(d) As required by 23 U.S.C. 144, all bridges in the NTTFI will be
inspected and recorded in the national bridge inventory administered by
the Secretary of Transportation.
Sec. 170.443 What is required to successfully include a proposed
transportation facility in the NTTFI?
A proposed transportation facility is any transportation facility,
including a highway bridge, that will serve public transportation
needs, is eligible for
[[Page 76213]]
construction under the TTP, and does not currently exist. It must meet
the eligibility requirements of the TTP and be open to the public when
constructed. In order to have a proposed facility placed on the NTTFI,
a tribe must submit all of the following to the BIADOT/FHWA Quality
Assurance Team for consideration:
(a) A tribal resolution or other official action identifying
support for the facility and its placement on the NTTFI.
(b) A copy of the tribe's long-range transportation plan (LRTP)
containing:
(1) A description of the current land use and identification of
land ownership within the proposed road's corridor (including what
public easements may be required);
(2) A description of need and outcomes for the facility including a
description of the project's termini; and
(3) The sources of funding to be used for construction.
(c) If the landowner is a public authority, documentation that the
proposed road has been identified in their LRTP, Statewide
Transportation Improvement Program approved by FHWA, or other published
transportation planning documents. If the owner will be the tribe, the
tribe must submit documentation showing an agreement regarding the
right-of-way or a clear written statement of willingness to provide a
right-of-way from each necessary landowner along the route.
(d) A certification that a public involvement process was held for
the proposed road.
(e) Documentation that identifies the anticipated environmental
impacts of the project as well as engineering and construction
challenges and the funding sources that will be used during the
planning, design, construction, and maintenance of the proposed
facility.
(f) Documentation identifying the entity responsible for
maintenance of the facility after construction is completed.
Sec. 170.444 How is the NTTFI updated?
(a) Submitting data into the NTTFI for a new facility is carried
out on an annual basis as follows:
(1) BIA Regional Offices provide each tribe within its region with
a copy of the tribe's own NTTFI data during the first fiscal quarter of
each year.
(2) Tribes review the data and either enter the changes/updates
into the database or submit changes/updates back to the BIA Regional
Office by March 15. The submissions must include, at a minimum, all
required minimum attachments (see Sec. 170.446) and authorizing
resolutions or similar official authorizations.
(3) The BIA Regional Office reviews each tribe's submission. If any
errors or omissions are identified, the BIA Regional Office will return
the submittals along with a request for corrections to the tribe no
later than May 15. If no errors or omissions are found, the BIA
Regional Office validates the data and forwards it to BIADOT for review
and approval.
(4) The tribe must correct any errors or omissions in the data
entries or return the corrected submittals back to the BIA Regional
Office by June 15.
(5) Each BIA Regional Office must validate its regional data by
July 15.
(6) BIADOT approves the current inventory year submissions from BIA
Regional Offices by September 30 or returns the submissions to the BIA
Regional Office if additional work is required.
(b) Updating the data on a facility currently listed in the NTTFI
is carried out as follows:
(1) At any time, a tribe may submit a request to the BIA Region
asking for the NTTFI data of an existing facility to be updated. The
request must include the tribe's updated data and background
information on how and why the data was obtained. At the request of a
tribe, FHWA may assist BIA and the tribe in updating the NTTFI data as
required under this part.
(2) The BIA Region must review the submitted data and respond to
the tribe within 30 days of its receipt.
(i) If approved, the BIA Region validates the data and forwards it
to BIA DOT for review and approval.
(ii) If not approved, the BIA Region returns the submittals to the
tribe along with a detailed written explanation and supporting
documentation of the reasons for the disapproval. The tribe must
correct the data entries and return the corrected submittals back to
the BIA Region.
(3) BIADOT approves the current inventory year submissions from BIA
Regional Offices or returns the submittals to the BIA Regional Office
if additional work is required.
(c) A Tribe may appeal the rejection of submitted data on a new or
existing facility included in the NTTFI by filing a written notice of
appeal to the Director, Bureau of Indian Affairs, with a copy to the
BIA Regional Director.
(d) To be included in the annual NTTFI update used for
administrative and reporting purposes for any given fiscal year,
submittals for new facilities and updates for existing facilities must
be officially accepted by BIA and FHWA by September 30th of that year.
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 NTTFI.
(a) Each strip map submitted with an NTTFI change must:
(1) Clearly identify the facility's location with respect to State,
county, tribal, and congressional boundaries;
(2) Define the overall dimensions of the facility, including
latitude and longitude;
(3) Include a north arrow, scale, designation of road sections,
traffic counter locations, and other nearby transportation facilities;
and
(4) Include a table that provides the facility's data information
needed for the NTTFI.
(b) For additional information, refer to the TTP Coding Guide.
Sec. 170.446 What minimum attachments are required for an NTTFI
submission?
The minimum attachments required for a facility to be added into
the NTTFI include the following.
(a) A long-range transportation plan. Provide the plan's cover
sheet, signature page, and page or pages that contain the description
of route.
(b) A tribal resolution or official authorization that refers to
all route numbers, names, locations, lengths, construction needs, and
ownerships.
(c) A Strip Map. Defines or illustrates the facility's location
with respect to State, County, Tribal, and congressional boundaries.
See Sec. 170.445.
(d) ADT Backup Documentation. This applies only when a request to
change or update the ADT for a section in the official inventory. The
request will contain raw traffic data (backup data), method and
calculations for adjustment of raw data, map showing traffic counter
locations or location of traffic counter can be provided within the
strip map, and derived ADT values. If the road is proposed, the ADT
impractical to acquire, or a current ADT does not exist, then BIADOT
will assign a default values within the NTTFI database.
(e) If possible, a typical or representative section photo or
bridge profile photo.
(f) Incidental cost verification. Provide an estimate, analysis and
justification to verify the need of additional incidental items
required to improve the road to an adequate standard. The analysis and
justification must be specific to the route or facility being
submitted.
(g) Acknowledgement of Public Authority responsibility. This
document can be a letter or similar notification by the public
authority (other than the tribe
[[Page 76214]]
or BIA) of acknowledgement of responsibility for maintenance of the
Indian Reservation Roads facility. This document will identify the
route or facility by region, agency, reservation, route and section. It
will identify ownership and the entity that will be responsible for the
maintenance of the route after construction, and that the route will be
open to the public.
(h) For proposed roads, see 170.443 for additional required
attachments.
Environmental and Archeological Requirements
Sec. 170.450 What archeological and environmental requirements must
the TTP meet?
All BIA, FHWA, and tribal work for the TTP must comply with
cultural resource and environmental requirements under applicable
Federal laws and regulations. A list of applicable laws and regulations
is available in the official Tribal Transportation Program Guide on
either the BIA transportation Web site at http://www.bia.gov/WhoWeAre/BIA/OIS/Transportation/index.htm or the Federal Lands Highway--Tribal
Transportation Program Web site at http://flh.fhwa.dot.gov/programs/ttp/guide/.
Sec. 170.451 Can TTP funds be used for archeological and
environmental compliance?
Yes. For approved TTP projects, TTP funds can be used for
environmental and archeological work consistent with Sec. 170.450 and
applicable tribal laws for:
(a) Road and bridge rights-of-way;
(b) Borrow pits and aggregate pits and water sources associated
with TTP 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
all affected tribes and appropriate Secretaries; and
(d) Construction easements.
Sec. 170.452 When can TTP funds be used for archeological and
environmental activities?
TTP funds can be used on a project's archeological and
environmental activities only after the TTP facility is included in the
Tribe's LRTP and the NTTFI, and the project identified on an FHWA-
approved TTPTIP.
Design
Sec. 170.454 What design standards are used in the TTP?
(a) Depending on the nature of the project, tribes must use
appropriate design standards approved by BIA and FHWA. A list of
applicable design standards are available in the official Tribal
Transportation Program guide on either the BIA transportation Web site
at http://www.bia.gov/WhoWeAre/BIA/OIS/Transportation/index.htm or the
Federal Lands Highway--Tribal Transportation Program Web site at http://flh.fhwa.dot.gov/programs/ttp/guide/. In addition, tribes may develop
their own design standards that meet or exceed those required by BIA
and FHWA.
(b) If a tribe proposes the use of a design standard that is not
listed in the Tribal Transportation Program Guide, the proposed
standard must be approved by FHWA.
Sec. 170.455 What other factors must influence project design?
The appropriate design standards 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 TTP projects must take into consideration:
(a) The existing and planned future use of the 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) A tribe can request an exception from the required design
standards from FHWA or BIA. The engineer of record must submit written
documentation with appropriate supporting data, sketches, details, and
justification based on engineering analysis.
(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 has 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 Office of Federal Lands Highway, 1200 New
Jersey Ave. SE., HFL-1, Washington, DC 20590. If FHWA denies a design
exception, the tribe may appeal the decision Office of the FHWA
Administrator, 1200 New Jersey Ave. SE., HOA-1, Washington, DC 20590.
Review and Approval of Plans, Specifications and Estimates
Sec. 170.460 What must a project package include?
The tribe must submit the following project documentation to BIA or
FHWA before the start of construction:
(a) Plans, specifications, and estimates;
(b) A tribal resolution or other authorized document supporting the
project;
(c) Certification of the required right-of-way, easement, or public
taking documentation clearances;
(d) Required environmental, archeological, and cultural clearances;
and
(e) Identification of design exceptions if used in the plans.
Sec. 170.461 May a tribe approve plans, specifications, and
estimates?
An Indian tribal government may approve plans, specifications and
estimates and commence road and bridge construction with funds made
available from the tribal transportation program through a contract,
agreement under the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450 et seq.), or Program Agreement if the Indian tribal
government:
(a) Provides assurances in the contract or agreement that the
construction will meet or exceed applicable health and safety
standards;
(b) Obtains advance review of the plans and specifications from a
State-licensed civil engineer that has certified that the plans and
specifications meet or exceed the applicable health and safety
standards;
(c) Provides a copy of the certification under paragraph (a) of
this section to the Deputy Assistant Secretary for Tribal Government
Affairs, Department of Transportation, or the Assistant Secretary--
Indian Affairs, DOI, as appropriate; and
(d) Provides a copy of all project documentation identified in
Sec. 170.460 to BIA or FHWA before the start of construction.
Sec. 170.463 What if a design deficiency is identified?
If the Secretaries identify a design deficiency that may jeopardize
public
[[Page 76215]]
health and safety if the facility is completed, they must:
(a) Immediately notify the tribe of the design deficiency and
request that the tribe promptly resolve the deficiency under the
standards in Sec. 170.454; and
(b) For a BIA-prepared PS&E package, promptly resolve the
deficiency under the standards in Sec. 170.454 and notify the tribe of
the required design changes.
Construction and Construction Monitoring
Sec. 170.470 Which construction standards must tribes use?
(a) Tribes must either:
(1) Use the approved standards referred to in Sec. 170.454; or
(2) Request approval for any other road and highway bridge
construction standards that are consistent with or exceed the standards
referred to in Sec. 170.454.
(b) For designing and building eligible intermodal projects funded
by the TTP 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 a TTP project, BIA or FHWA will
monitor project performance under the requirements of 25 CFR 900.130
and 900.131, 25 CFR 1000.243 and 1000.249, program agreements, or other
appropriate agreements. If BIA or FHWA discovers a problem during an
on-site monitoring visit, BIA or FHWA 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) When a tribe carries out TTP programs, functions, services and
activities under a Program Agreement or another appropriate agreement
with BIA, FHWA and BIA will monitor performance under the executed
Program Agreement and this part.
(f) Only the licensed professional engineer of record may change a
TTP project's plans, specifications, and estimates (PS&E) during
construction.
(1) The original approving agency must review each substantial
change. The approving agency is the Federal, tribal, State, or local
entity with PS&E approval authority over the project.
(2) 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 TTP construction records BIA and
tribes must keep and the requirements for access.
------------------------------------------------------------------------
Records that must be
Record keeper kept Access requirements
------------------------------------------------------------------------
(a) Tribe................... All records required BIA and FHWA are
by ISDEAA and 25 allowed access to
CFR 900.130-131 or tribal TTP
25 CFR 1000.243 and construction and
1000.249, as approved project
appropriate. specifications as
required under 25
CFR 900.130,
900.131, 25 CFR
1000.243 and
1000.249, or the
Program Agreement
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 When is a project complete?
A project is considered substantially complete when all work is
completed and accepted (except for minor tasks yet to be completed
(punch list)) and the project is open to traffic. The project is
completed only after all the requirements of this section are met.
(a) At the end of a construction project, the public authority,
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, responsible public
authority, 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 TTP 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) After the final inspection, the facility owner makes final
acceptance of the project. At this point, the tribe or BIA must
complete a project closeout and final accounting of all TTP
construction project expenditures under Sec. 170.474.
(c) If 25 CFR part 169 applies to the project, all documents
required by part 169 including, but not limited to, documentation
attesting that the project was constructed entirely within the approved
right-of-way must be completed.
Sec. 170.474 Who conducts the project closeout?
The following table shows who must conduct the TTP construction
project closeout and develop the report.
------------------------------------------------------------------------
If the project was completed and the closeout
by . . . then . . . report must . . .
------------------------------------------------------------------------
(a) BIA....................... The region (1) Summarize the
engineer or construction project
designee is records to ensure
responsible for compliance
closing out the requirements have
project and been met;
preparing the (2) Review the bid
report. 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
TTP construction
project; and
(4) Be provided to
the affected tribes
and the Secretaries.
[[Page 76216]]
(b) A tribe................... Agreements (1) Meet the
negotiated under requirements of
ISDEAA, FHWA, or ISDEAA;
other (2) Comply with 25
appropriate CFR 900.130(d) and
agreements 131(b)(10) and 25
specify who is CFR 1000.249, as
responsible for applicable;
closeout and (3) Be completed
preparing the within 120 calendar
report. days of the date of
acceptance of the
project; and
(4) Be provided to
all parties
specified in the
agreements
negotiated under
ISDEAA.
------------------------------------------------------------------------
Management Systems
Sec. 170.502 Are nationwide management systems required for the TTP?
(a) The Secretaries will, to the extent appropriate, implement
safety, bridge, pavement, and congestion management systems for the
Federal and tribal facilities included in the NTTFI.
(b) A tribe may develop its own tribal management system based on
the nationwide management system requirements in 23 CFR part 973. The
tribe may use either TTP formula funds or transportation planning funds
defined in 23 U.S.C. 202(c) for this purpose. The tribal system must be
consistent with Federal management systems.
Bridge Program
Sec. 170.510 What funds are available to address bridge activities?
Funds are made available in 23 U.S.C. 202(d) to maintain a
nationwide priority program for improving deficient bridges eligible
for the tribal transportation program.
Sec. 170.511 What activities are eligible for Tribal Transportation
Facility Bridge funds?
(a) The funds made available under 23 U.S.C. 202(d) must be used
to:
(1) Carry out any planning, design, engineering, preconstruction,
construction, and inspection of a bridge project to replace,
rehabilitate, seismically retrofit, paint, apply calcium magnesium
acetate, sodium acetate/formate, or other environmentally acceptable,
minimally corrosive anti-icing and deicing composition; or
(2) Implement any countermeasure for deficient tribal
transportation facility bridges, including multiple-pipe culverts.
(b) Further information regarding the use and availability of these
funds can be found at 23 CFR part 661.
Sec. 170.512 How will Tribal Transportation Facility Bridge funds be
made available to the tribes?
Funds made available to tribes under 23 U.S.C. 202(d) may be
included in the tribe's self-determination contracts, self-governance
agreements, program agreements, and other appropriate agreements.
Sec. 170.513 When and how are bridge inspections performed?
(a) All bridges identified on the NTTFI must be inspected under 23
U.S.C. 144.
(b) Employees performing inspections as required by Sec.
170.513(a) must:
(1) Notify affected tribes and State and local governments that an
inspection will occur;
(2) Offer tribal and State and local governments the opportunity to
accompany the inspectors; and
(3) Otherwise coordinate with tribal and State and local
governments.
(c) The person responsible for the bridge inspection team must meet
the qualifications for bridge inspectors as defined in 23 U.S.C. 144.
Sec. 170.514 Who reviews bridge inspection reports?
The person responsible for the bridge inspection team must send a
copy of the inspection report to BIADOT. BIADOT:
(a) Reviews the report for quality assurance and works with FHWA to
ensure the requirements of 23 U.S.C. 144 are carried out; and
(b) Furnishes a copy of the report to the BIA Regional Office,
which will forward the copy to the affected tribe.
Subpart E--Service Delivery for Tribal Transportation Program
Funding Process
Sec. 170.600 What must BIA include in the notice of funds
availability?
(a) Upon receiving the total fiscal year of TTP funding from FHWA:
(1) BIA will send a notice of funds availability to each BIA
Regional Office and FHWA that includes the total funding available to
each tribe within each region; and
(2) BIA and FHWA will forward the information to the tribes along
with an offer of technical assistance.
(b) BIA and FHWA will distribute funds to eligible tribes upon
execution of all required agreements or contracts between BIA/FHWA and
the tribe. This distribution must occur:
(1) Within 30 days after funds are made available to the Secretary
under this paragraph; and
(2) Upon execution of all required agreements or contracts between
BIA/FHWA and the tribe.
(c) Funds made available under this section will be expended on
projects identified in a transportation improvement program approved by
the Secretary. A listing of all FHWA-approved TTP projects (TTPTIP) is
available on the BIA Transportation and FHWA Web sites.
Sec. 170.602 If a tribe incurs unforeseen construction costs, can it
get additional funds?
The TTP is a tribal shares program based upon a statutory funding
formula. Therefore, no additional TTP funding beyond each tribe's share
is available for unforeseen construction costs. However, if a tribe is
operating under a self-determination contract, it may request
additional funds for that project under 25 CFR 900.130(e).
Miscellaneous Provisions
Sec. 170.605 May BIA or FHWA use force-account methods in the TTP?
When requested by a tribe, BIA or FHWA may use force-account
methods in carrying out the eligible work of the TTP. Applicable
Federal acquisition laws and regulations apply to BIA and FHWA when
carrying out force-account activities on behalf of a tribe.
Sec. 170.606 How do legislation and procurement requirements affect
the TTP?
Other legislation and procurement requirements apply to the TTP as
shown in the following table:
[[Page 76217]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applies to tribes under Applies to tribes under
Legislation, regulation or other self[hyphen]determination self[hyphen]governance Applies to tribes under BIA Applies to activities
requirement contracts agreements or FHWA program agreements performed by the Secretary
--------------------------------------------------------------------------------------------------------------------------------------------------------
Buy Indian Act.................. No........................... No.......................... No.......................... Yes.
Buy American Act................ No........................... No.......................... No.......................... Yes.
Federal Acquisition Regulation No(1)........................ No.......................... No.......................... Yes.
(FAR).
Federal Tort Claims Act......... Yes.......................... Yes......................... Yes......................... Yes.
Davis[hyphen]Bacon Act.......... Yes(2)....................... Yes(2)...................... Yes(2)...................... Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(a) Unless agreed to by the tribe or tribal organization under ISDEAA, 25 U.S.C. 450j(a), and 25 CFR 900.115.
(b) Does not apply when tribe performs work with its own employees.
Sec. 170.607 Can a tribe use its allocation of TTP funds for contract
support costs?
Yes. Contract support costs are an eligible item out of a tribe's
TTP allocation and need to be included in a tribe's project
construction budget.
Sec. 170.608 Can a tribe pay contract support costs from DOI or BIA
appropriations?
No. Contract support costs for TTP construction projects cannot be
paid out of DOI or BIA appropriations.
Sec. 170.609 Can a tribe receive additional TTP funds for start-up
activities?
No. Additional TTP funding for start-up activities is not
available.
Contracts and Agreements
Sec. 170.610 Which TTP functions may a tribe assume?
A tribe may assume all TTP functions and activities that are
otherwise contractible and non-inherently Federal under self-
determination contracts, self-governance agreements, program
agreements, and other appropriate agreements. Administrative support
functions are an eligible use of TTP funding.
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 TTP self-determination contract and self-governance
agreement with a tribe under sections 105(c)(1)(A) and (2) of ISDEAA.
The amount of the 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 TTPs 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 under 25 CFR 900.132.
(d) Design and construction contracts. The Secretary can enter into
a design/construct TTP self-determination contract that includes both
the design and construction of one or more TTP 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 Can non-contractible functions and activities be
included in contracts or agreements?
(a) All non-contractible TTP ``program'' and ``project'' functions
are funded by the Administrative expenses identified in 23 U.S.C.
202(a)(6). These funds are only for use by BIA and FHWA transportation
personnel performing program management and oversight, and project-
related administration activities.
(b) Program functions cannot be included in self-determination
contracts, self-governance agreements, program agreements, or other
agreements. (23 U.S.C. 202(b)(6)(B) and 23 U.S.C. 202(b)(7)(B)).
Appendix A to this subpart contains a list of program functions that
cannot be contracted.
Sec. 170.614 Can a tribe receive funds before BIA publishes the final
notice of funding availability?
A tribe can receive funds before BIA publishes the final notice of
funding availability required by Sec. 170.600(a) when partial year
funding is made available to the TTP through continuing resolutions or
other Congressional actions.
Sec. 170.615 Can a tribe receive advance payments for non-
construction activities under the TTP?
Yes. A tribe must receive advance payments for non-construction
activities under 25 U.S.C. 450l for self-determination contracts on a
quarterly, semiannual, lump-sum, or other basis proposed by a tribe and
authorized by law.
Sec. 170.616 How are payments made to tribes if additional funds are
available?
After an Agreement between BIA or FHWA and the tribe is executed,
any additional funds will be made available to tribes under the terms
of the executed Agreement.
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 under 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 TTP funding allocation in the agreement.
(c) The amounts in both paragraphs (a) and (b) of this section must
be within the tribal share made available or within the negotiated
ISDEAA contract or agreement.
Sec. 170.618 Can a tribe keep savings resulting from project
administration?
All funds made available to a tribe through the 23 U.S.C 202(b) are
considered ``tribal'' and are available to the tribe until expended.
However, they must be expended on projects and activities referenced on
an FHWA approved TTPTIP.
Sec. 170.619 Do tribal preference and Indian preference apply to TTP
funding?
Tribal preference and Indian preference apply to TTP funding as
shown in the following table:
[[Page 76218]]
------------------------------------------------------------------------
If . . . Then . . .
------------------------------------------------------------------------
(a) A contract serves a single tribe. Section 7(c) under Title 1 of
ISDEAA allows tribal employment
or contract preference laws,
including tribe local preference
laws to govern.
(b) A contract serves more than one Section 7(b) under Title 1 of
tribe. ISDEAA applies.
(c) A self[hyphen]governance 25 CFR 1000.406 applies.
agreement exists under Title IV of
ISDEAA.
(d) A Program Agreement.............. The language of the Program
Agreement applies.
------------------------------------------------------------------------
Sec. 170.620 How do ISDEAA's Indian preference provisions apply?
This section applies when the Secretary or a tribe enters into a
cooperative, reimbursable, or other agreement with a State or local
government for a TTP construction project. The tribe and the parties
may choose to incorporate the provisions of section 7(b) of ISDEAA in
the agreement.
Sec. 170.621 What if a tribe doesn't 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) and (b) and
ISDEAA, part 900 subpart L (appeals);
(b) For self-governance agreements, the Secretary must use the
monitoring and enforcement procedures in 25 CFR part 1000, subpart K;
or
(c) For FHWA or BIA TTP Agreements, the Secretaries will use the
procedures identified in the Agreements.
Sec. 170.622 What TTP program, functions, services, and activities
are subject to the self-governance construction regulations?
All TTP design and construction projects and activities, whether
included separately or under a program in the agreement, are subject to
the regulations in 25 CFR part 1000, subpart K, including applicable
exceptions.
Sec. 170.623 How are TTP projects and activities included in a self-
governance agreement?
To include a TTP project or activity in a self-governance
agreement, the following information is required:
(a) All work must be included in the FHWA-approved TTPTIP; and
(b) All other information required under 25 CFR part 1000, subpart
K.
Sec. 170.624 Is technical assistance available?
Yes. Technical assistance is available from BIA, the Office of
Self- Governance, and FHWA for tribes with questions about contracting
the TTP or TTP projects.
Sec. 170.625 What regulations apply to waivers?
The following regulations apply to waivers:
(a) For self-determination contracts, 25 CFR 900.140 through
900.148;
(b) For self-governance agreements, 25 CFR 1000.220 through
1000.232; 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 can request a waiver of a Department of Transportation
regulation as shown in the following table:
------------------------------------------------------------------------
If the tribe's contract or then the tribe must
agreement is with . . . and . . . . . .
------------------------------------------------------------------------
(a) The Secretary........... the contract is a follow the
self-determination procedures in
contract. ISDEAA, Title I,
and 25 CFR 900.140
through 900.148.
(b) The Secretary........... the agreement is a follow the
tribal self- procedures in 25
governance CFR 1000.220
agreement. through 1000.232.
(c) The Secretary of .................... make the request to
Transportation. the Secretary of
Transportation at:
1200 New Jersey
Ave. SE., HFL-1,
Washington, DC
20590.
------------------------------------------------------------------------
Appendix to Subpart E--List of Program Functions That Cannot Be
Subcontracted
Per Sec. 170.612, program functions cannot be included in self-
determination contracts, self-governance agreements, program
agreements, or other agreements. Program functions include all of
the following:
(a) TTP project-related pre-contracting activities:
(1) Notifying tribes of available funding including the right of
first refusal; and
(2) Providing technical assistance.
(b) TTP 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 and approving TTP transportation improvement
programs developed by tribes or other contractors;
(2) Reviewing and approving TTP long-range transportation plans
developed by tribes or other contractors; and
(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;
(5) Reviewing and approving documents attesting that a project
was constructed entirely within a right-of-way granted by BIA; 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 TTP design and construction.
[[Page 76219]]
(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 TTP 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 TTP;
(2) Developing legislative proposals;
(3) Coordinating legislative activities;
(4) Developing and issuing regulations;
(5) Developing and issuing TTP planning, design, and
construction standards;
(6) Developing/revising interagency agreements;
(7) Developing and approving TTP stewardship agreements in
conjunction with FHWA;
(8) Developing annual TTP obligation and TTP accomplishments
reports;
(9) Developing reports on TTP 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 TTP and other transportation funding;
(13) Providing technical assistance to tribe/tribal
organizations/agencies/regions;
(14) Providing national program leadership for other Federal
transportation related programs including: Transportation
Alternatives Program, Tribal Transportation Assistance Program,
Recreational Travel and Tourism, Transit Programs, ERFO Program, and
Presidential initiatives;
(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 TTP;
(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 TTP meetings;
(23) Consulting with tribes on non-project related TTP issues;
(24) Participating in TTP, process, and product reviews;
(25) Developing and approving national indefinite quantity
service contracts;
(26) Assisting and supporting the TTP Coordinating Committee;
(27) Processing TTP Bridge program projects and other
discretionary funding applications or proposals from tribes;
(28) Coordinating with FHWA;
(29) Performing stewardship of the TTP;
(30) Performing oversight of the TTP and its funded activities;
(31) Performing any other non-contractible TTP activity included
in this part; and
(32) Determining eligibility of new uses of TTP funds.
(j) BIADOT Planning:
(1) Maintaining the official TTP inventory;
(2) Reviewing long-range transportation plans;
(3) Reviewing and approving TTP transportation improvement
programs;
(4) Maintaining nationwide inventory of TTP strip and atlas
maps;
(5) Coordinating with tribal/State/regional/local governments;
(6) Developing and issuing procedures for management systems;
(7) Distributing approved TTP 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 TTP transportation planning
funds to BIA regions;
(11) Reprogramming unused TTP transportation planning funds at
the end of the fiscal year;
(12) Monitoring the nationwide obligation of TTP transportation
planning funds;
(13) Providing technical assistance and training to BIA regions
and tribes;
(14) Approving Atlas maps;
(15) Reviewing TTP 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 TTP/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 TTP Bridge program applications;
(4) Participating in second level review of TTP bridge PS-E's;
and
(5) Developing criteria for bridge management systems.
(m) BIADOT responsibilities to perform other non-contractible
required TTP activities contained in this part.
(n) BIA regional offices program management:
(1) Designating TTP System roads;
(2) Notifying tribes of available funding;
(3) Developing State TTP transportation improvement programs;
(4) Providing FHWA-approved TTP 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 TTP costs;
(7) Processing and investigating non-project related tort
claims;
(8) Preparing budgets for BIA regional and agency TTP
activities;
(9) Developing/revising interagency agreements;
(10) Developing control schedules/transportation improvement
programs;
(11) Developing regional TTP stewardship agreements;
(12) Developing quarterly/annual TTP obligation and program
accomplishments reports;
(13) Developing reports on TTP 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;
(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 TTP region/agency/contracting support costs;
(23) Reviewing TTP Atlas maps;
(24) Processing Freedom of Information Act (FOIA) requests;
(25) Monitoring the obligation and expenditure of all TTP funds
allocated to BIA region;
(26) Performing activities related to the application for ERFO
funds, administration, and oversight of the funds; and
(27) Participating in TTP, process, and product reviews.
[[Page 76220]]
(o) BIA regional offices' planning:
(1) Coordinating with tribal/State/regional/local government;
(2) Coordinating and processing the funding and repair of
damaged Tribal Transportation Facility Roads with tribes;
(3) Reviewing and approving TTP Inventory data;
(4) Maintaining, reviewing, and approving the management systems
databases;
(5) Reviewing and approving TTP State transportation improvement
programs; and
(6) Performing Federal responsibilities identified in the TTP
Transportation Planning Procedures and Guidelines manual.
(p) BIA regional offices' engineering:
(1) Approving tribal standards for the TTP use;
(2) Developing and implementing new engineering techniques in
the TTP; and
(3) Providing technical assistance.
(q) BIA regional offices' responsibilities for bridges:
(1) Reviewing and processing TTP bridge program applications;
(2) Reviewing and processing TTP 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 TTP activities contained in this
part.
Subpart F--Program Oversight and Accountability
Sec. 170.700 What is the TTP Stewardship Plan/National Business Plan?
The TTP stewardship plan/national business plan delineates the
respective roles and responsibilities of BIA and FHWA in the
administration of the TTP 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. A direct service tribe and BIA Region My sign a Memorandum of
Understanding (MOU). A TTP 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 TTP will
be carried out by BIA on the tribe's behalf.
Sec. 170.702 What activities may the Secretaries review and monitor?
The Secretaries review and monitor the performance of all TTP
activities.
Sec. 170.703 What program reviews do the Secretaries conduct?
(a) BIADOT and FHWA conduct formal program reviews of BIA Regional
Offices or tribes to examine program procedures and identify
improvements. For a BIA Regional Office review, the regional tribes
will be notified of these formal program reviews. Tribes may send
representatives to these meetings at their own expense.
(b) The review will provide recommendations to improve the program,
processes and controls of management, planning, design, construction,
financial and administration activities.
(c) After the review, the review team must:
(1) Make a brief oral report of findings and recommendations to the
tribal leadership or BIA Regional Director; and
(2) Within 60 days, provide a written report of its findings and
recommendations to the tribe, BIA, all participants, and affected
tribal governments and organizations.
Sec. 170.704 What happens when the review process identifies areas
for improvement?
When the review process identifies areas for improvement:
(a) The tribe or regional office must develop a corrective action
plan within 60 days;
(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 tribe or BIA regional office implements the plan
and reports either annually or biennially to BIADOT and FHWA on
implementation.
Subpart G--Maintenance
Sec. 170.800 What funds are available for maintenance activities?
(a) Under 23 U.S.C. 202(a)(8), a tribe can use TTP funding for
maintenance, within the following limits, whichever is greater:
(1) 25 percent of its TTP funds; or
(2) $500,000.
(b) These funds can only be used to maintain the public facilities
included in the NTTFI.
(c) Road sealing activities are not subject to this limitation.
(d) BIA retains primary responsibility, including annual funding
request responsibility, for BIA road maintenance programs on Indian
reservations.
(e) The Secretary of the Interior shall ensure that funding made
available under the TTP for maintenance of tribal transportation
facilities for each fiscal year is supplementary to, and not in lieu
of, any obligation of funds by the BIA for road maintenance programs on
Indian reservations.
Sec. 170.801 Can maintenance funds be used to improve TTP
transportation facilities?
No. The funds identified for maintenance in Sec. 170.800 cannot be
used to improve roads or other TTP transportation facilities to a
higher road classification, standard or capacity.
Sec. 170.802 Can a tribe perform road maintenance?
Yes. A tribe may enter into self-determination contracts, self-
governance agreements, program agreements, and other appropriate
agreements to perform tribal transportation facility maintenance.
Sec. 170.803 To what standards must a TTP transportation facility be
maintained?
Subject to availability of funding, TTP transportation facilities
must be maintained under either:
(a) A standard accepted by BIA or FHWA (as identified in the
official Tribal Transportation Program guide on either the BIA
transportation Web site at http://www.bia.gov/WhoWeAre/BIA/OIS/Transportation/index.htm or the Federal Lands Highway--Tribal
Transportation Program Web site at http://flh.fhwa.dot.gov/programs/ttp/guide/, or
(b) Another tribal, Federal, State, or local government maintenance
standard negotiated in an ISDEAA road maintenance self- determination
contract or self-governance agreement.
Sec. 170.804 What if maintenance funding is inadequate?
If BIA determines that a TTP transportation facility is not being
maintained under TTP standards due to insufficient funding, it will:
(a) Notify the facility owner, and if the facility is a BIA system
road, continue to request annual maintenance funding for that facility;
and
(b) Report these findings to the Secretary of Transportation under
23 U.S.C. 201(a). BIA will provide a draft copy of the report to the
affected tribe for comment before forwarding it to Secretary of
Transportation.
Sec. 170.805 What maintenance activities are eligible for TTP
funding?
TTP Maintenance funding support a wide variety of activities
necessary to maintain facilities identified in the NTTFI.A list of
eligible activities is available in the official Tribal Transportation
Program guide on either the BIA transportation Web site at http://www.bia.gov/WhoWeAre/BIA/OIS/Transportation/index.htm or the Federal
Lands Highway--Tribal Transportation Program Web site at http://flh.fhwa.dot.gov/programs/ttp/guide/.
[[Page 76221]]
Subpart H--Miscellaneous Provisions
Reporting Requirements and Indian Preference
Sec. 170.910 What information on the TTP or projects must BIA or FHWA
provide?
At the written request of a tribe, BIA or FHWA must provide
available information on the TTP 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
TTP.
(b) Under 25 U.S.C. 450e(b), 23 U.S.C. 140(d), 25 U.S.C. 47, and 23
U.S.C. 202(a)(3), 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 TTP.
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 a tribal
transportation facility. (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 a TTP 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 a TTP
project budget?
Yes. The cost of tribal employment taxes or fees may be included in
the budget for a TTP project.
Sec. 170.916 May tribes impose taxes or fees on those performing TTP
services?
Yes. Tribes, as sovereign nations, may impose taxes and fees for
TTP activities. When a tribe administers TTPs 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 TTP 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.
Sec. 170.918 What applies to the Secretaries collection of data under
the TTP?
Under 23 U.S.C. 201(c)(6), the Secretaries will collect and report
data necessary to implement the Tribal Transportation Program under the
ISDEAA, including:
(a) Inventory and condition information on Federal lands
transportation facilities and tribal transportation facilities; and
(b) Bridge inspection and inventory information on any Federal
bridge open to the public.
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 TTACs,
BIA regional road engineers, FHWA, or AASHTO to establish a tribal
transportation department.
Sec. 170.931 Can tribes use TTP funds to pay tribal transportation
department operating costs?
Yes. Tribes can use TTP funds to pay the cost of planning,
administration, and performance of approved TTP activities (see Sec.
170.115). 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, under 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 TTP
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
[[Page 76222]]
non-construction the mediation and alternative dispute resolution
options listed in 25 U.S.C. 4501 (model contract section (b)(12)).
(4) Tribes operating under a Program Agreement with FHWA are
entitled to use dispute resolution techniques prescribed in 25 CFR
170.934 and Article II, Section 4 of the Agreement.
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 TTP
transportation research needs;
(c) Submit transportation research proposals to States, FHWA,
AASHTO, and FTA;
(d) Prepare and include transportation research proposals in their
TTPTIPS;
(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 quality-of-life programs?
(a) A tribe can use TTP 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.
Sec. 170.943 What is the Tribal High Priority Projects Program?
The Tribal High Priority Projects Program is authorized under
Section 1123 of MAP21 and is not part of the Tribal Transportation
Program. Details about the program are available on either the BIA
transportation Web site at http://www.bia.gov/WhoWeAre/BIA/OIS/Transportation/index.htm or the Federal Lands Highway--Tribal
Transportation Program Web site at http://flh.fhwa.dot.gov/programs/ttp/.
Dated: December 11, 2014.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2014-29604 Filed 12-17-14; 4:15 pm]
BILLING CODE 4310-6W-P