[Federal Register Volume 59, Number 57 (Thursday, March 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6876]
[[Page Unknown]]
[Federal Register: March 24, 1994]
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Part III
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 170
Roads of the Bureau of Indian Affairs To Be Administered in Conjunction
With the Federal Highway Administration; Proposed Rule
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 170
RIN 1076-ABO5
Roads of the Bureau of Indian Affairs To Be Administered in
Conjunction With the Federal Highway Administration
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Indian Affairs is proposing to revise its
regulations on the administration of its roads. These proposed changes
are necessary because of new procedures and methods, the adoption of
the Federal Lands Highways Program, and other events since the last
revision. The purpose of this revision is to reflect the current Bureau
of Indian Affairs (BIA) and Federal Highway Administration (FHWA)
policies for the road systems on Indian Reservations; to ensure that
funds are made available from the Highway Trust Fund (HTF) for
construction projects on Indian Reservations Roads (IRR) in accordance
with the relative needs of the reservations; and to implement aspects
of tribal self-determination.
DATES: Comments must be received on or before May 23, 1994.
ADDRESSES: Send written and signed comments to Richard B. Geiger;
Chief, Division of Transportation; Bureau of Indian Affairs; 1849 C
Street, NW.; Mail Stop 4058 MIB; Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Richard B. Geiger, Chief, Division of
Transportation, Bureau of Indian Affairs. Telephone number (202) 208-
4359. Office hours are from 7:45 a.m. to 4:15 p.m., EST, Monday through
Friday, except for legal holidays.
SUPPLEMENTARY INFORMATION: The Bureau of Indian Affairs is proposing
this revision to incorporate the requirements and procedures of the
Federal Lands Highways Program, 23 U.S.C. 202 and 204, and to reflect
the policies of the FHWA for road systems on Indian reservations. The
incorporation of these requirements will ensure that funds from the HTF
are available for construction projects on IRR according to the needs
of the reservation as prioritized by the affected Indian Tribes.
A substantial backlog of needed road construction serving Indian
reservations exists making the establishment of project priorities a
necessity. The requirements of the Intermodal Surface Transportation
Efficiency Act of 1991 (ISTEA), Public Law 102-240, 105 Stat. 1914
(December 18, 1991) and the policy of Indian Self-Determination,
mandate that consultation procedures with Tribal Governments to
determine these priorities should be established, subject to BIA
approval of the expenditure of Federal Funds.
Procedures shall be followed and periodically revised to ensure
that the opportunity exists for the various Indian reservations to
receive a fair and equitable share of funds from the HTF for
construction projects on Indian reservation roads. These projects are
funded according to their relative needs and to meet the legislative
requirements established which affect Indian reservations.
Substantive Changes Proposed
25 CFR 170.2 Definitions. This section would be revised to include
reconstruction projects within the definition of ``construction'' and
new definitions for ``public road'' and ``BIA road system.''
25 CFR 170.3 Federal Lands Highways Program. This revised section
would describe programs established by section 126(e) of the Surface
Transportation Assistance Act of 1982, Pub. L. 97-424, 96 Stat. 2115,
and the ISTEA.
25 CFR 170.5, formerly Right-of-way, is renumbered to 170.14. This
section is retitled Federal-Aid Highway Program and now describes the
IRR as authorized by that program.
25 CFR 170.6, formerly Maintenance of Indian Roads, is renumbered
to 170.19. This section is retitled Road Inventory and Needs Study.
25 CFR 170.7, formerly Cooperation with States, is changed to
include tribes and renumbered to 170.3(b). This new section now
describes the transportation planning process and is titled,
Transportation Planning. This section also includes tourism and
recreational travel that benefits recreational development.
25 CFR 170.8, formerly Use of Roads, is renumbered to 170.17. This
new section describes priority selection for road construction and is
titled Selection of Road Construction Priorities.
25 CFR 170.9, formerly Roadless and Wild Areas, is titled Annual
Program Approval and 170.41 is the new section for Roadless and Wild
Areas.
25 CFR 170.10 through 170.19, Public Hearings on Road Projects,
have been renumbered to 170.30 through 170.39. Sections 170.10, 170.11,
170.12 and 170.13 now are titled respectively Allocations, Availability
of Funds, Program Certification and Program Analysis.
25 CFR 170.14 Right-of-way, has been changed to include tribal
consultation in all right-of-way transfers.
25 CFR 170.18 Equipment Pool Operations, describes a new section
and includes new language for operating an Equipment Pool.
25 CFR 170.20 Pedestrian and Bicycle Facilities, describes a new
section and includes new language pursuant to section 1033 of the
ISTEA.
25 CFR 170.21 Emergency Relief Program, describes a new section and
includes language for operations under the Emergency Relief Program.
25 CFR 170.22 Bridges, describes a new section and includes the
provisions of the ISTEA for Indian reservation bridges pursuant to 23
U.S.C. 144.
25 CFR 170.23 Airports, has been added to describe eligible work on
airports.
25 CFR 170.24 Pub. L. 93-638 Contracts, Road Maintenance and
Construction Contracts, has been added to describe BIA responsibilities
under Public Law 93-638, the Indian Self-Determination and Education
Assistance Act, as amended.
25 CFR 170.27 Programs under Education and Training, has been added
to describe the eligible programs to tribes under this provision.
Minor Changes Proposed
Technical changes are made for clarity; to renumber to accommodate
new sections; to divide the text into two subparts; and to conform to
the substantive changes.
The policy of the Department of the Interior (DOI) is to afford the
public an opportunity to participate in the rulemaking process to the
greatest extent practical. Accordingly, interested persons may submit
written comments, suggestions, or objections regarding the proposed
rule, to the locations identified in the Addresses section of this
preamble.
The primary author of this document is: Richard B. Geiger, Chief,
Division of Transportation, Central Office, Bureau of Indian Affairs,
telephone number: (202) 208-4359.
This rule is not a significant rule under Executive Order 12866
and, thus, will not be reviewed by the Office of Management and Budget.
This rule does not have a significant economic effect on a substantial
number of small entities under the criteria established by the
Regulatory Flexibility Act and does not constitute a major Federal
action significantly affecting the quality of the human environment as
defined in the National Environmental Policy Act of 1969. This rule
does not contain information collection requirements as defined by 44
U.S.C. 3501 et seq. which require the approval of the Office of
Management and Budget. The Department has certified to the Office of
Management and Budget that these proposed regulations meet the
applicable standards provided in Sections 2(a) and 2(b) (2) of
Executive Order 12778. In accordance with Executive Order 12630, the
Department has determined that this rule does not have significant
takings implications and that this rule does not have significant
federalism effects under Executive Order 12612.
List of Subjects in 25 CFR Part 170 Highways and Roads, Indians-
lands
For the reasons set out in the preamble, part 170 of title 25,
Chapter I of the Code of Federal Regulations is proposed to be revised
as set forth below.
PART 170--ROADS OF THE BUREAU OF INDIAN AFFAIRS TO BE ADMINISTERED
IN CONJUNCTION WITH THE FEDERAL HIGHWAY ADMINISTRATION
Subpart A--Construction and Maintenance of Roads
Sec.
170.1 Purpose.
170.2 Definitions.
170.3 Federal Lands Highways Programs (23 U.S.C. 202 and 204).
170.4 Approval of fund distribution.
170.5 Federal-aid highways.
170.6 Road Inventory and Needs Study.
170.7 Transportation planning.
170.8 Selection of road construction project priorities.
170.9 Annual program approval.
170.10 Allocations.
170.11 Availability of funds.
170.12 Program certification.
170.13 Program analysis.
170.14 Right-of-way.
170.15 Road design.
170.16 Method of construction.
170.17 Use of roads.
170.18 Equipment pool operations.
170.19 Maintenance of BIA roads system.
170.20 Pedestrian and bicycle facilities.
170.21 Emergency Relief Program.
170.22 Bridges.
170.23 Airports.
170.24 Public Law 93-638 road maintenance and construction
contracts.
170.25 Program requirements for road maintenance.
170.26 Program requirements for road construction.
170.27 Education and training.
Subpart B--Public Hearings on Road Projects
Sec.
170.30 Purpose and objectives.
170.31 Criteria.
170.32 Need for public hearing determined.
170.33 Notice of road construction projects in lieu of hearing.
170.34 Notice of public hearing.
170.35 Record of hearing proceedings.
170.36 Conducting the public hearing.
170.37 Written statements.
170.38 Hearing statement.
170.39 Appeals.
170.40 Information collection requirements.
170.41 Roadless and wild areas.
Authority: 36 Stat. 861; 49 Stat. 1521, as amended; 78 Stat.
241, 253, 257; 45 Stat. 750; 25 U.S.C. 47, 318a, 318b; 42 U.S.C.
2000e(b), 2000e-2(i); 23 U.S.C. 101(a), 116, 117, 118, 125, 134,
135, 144, 202, 203, 204, 217, 326 and 402.
Subpart A--Construction and Maintenance of Roads
Sec. 170.1 Purpose.
The purpose of this part is to set forth regulations to govern the
planning, design, construction, maintenance, and general administration
of Indian reservation roads. In compliance with 23 U.S.C. 202, these
regulations have been jointly developed and approved by the Assistant
Secretary--Indian Affairs (DOI) and the Federal Highway Administrator,
Department of Transportation. Any FHWA/BIA interagency agreements
relative to the administration of the IRR program shall be developed
and approved after allowing tribal governments the opportunity to
review and comment.
Sec. 170.2 Definitions.
BIA Road System means those existing and proposed IRR for which the
Bureau of Indian Affairs (BIA) owns or plans to obtain legal right-of-
way. This includes only roads for which the BIA has the primary
responsibility to construct, improve and maintain, and for which any
changes to this system shall be supported by a tribal resolution.
Construction means engineering, supervising, inspecting, actual
building, and all expenses incidental to the construction and
improvement of roads and bridges. Construction includes the elimination
of roadway hazards, the acquisition of right-of-way, reconstruction,
resurfacing, restoration, rehabilitation, sealing of the roadway, and
traffic flow control or improvement. Also included are designed
pavement overlays that add to the structural value and design life of
the pavement, or provide identified safety skid resistance, and double
bituminous surface and chip seals that are part of predefined stage
construction or form the final surface on low volume roads.
Force account means the use of BIA personnel to perform
construction and maintenance on IRR. Program and project documentation
is completed under these operations in accordance with specifications
and applicable directives from the Bureau of Indian Affairs Manual
(BIAM) for each project.
Indian Reservation Roads (IRR) ``means public roads that are
located within or provide access to an Indian reservation or Indian
trust land or restricted Indian land which is not subject to fee title
alienation without the approval of the Federal Government or Indian and
Alaska Native villages, groups or communities in which the majority of
the residents are Indians or Alaskan Natives, whom the Secretary has
determined are eligible for services generally available to Indians
under Federal laws specifically applicable to Indians.'' (23 U.S.C.
101(a).) Roads in the BIA Road System are included in the IRR system.
Maintenance means the act of preserving the entire roadway,
including the surface, shoulder, roadsides, drainages, and structures,
preserving the road as nearly as practical to the original as-built
condition, and providing snow and ice removal, vegetation control,
traffic control devices, and other services for the safety and
convenience of the user. Maintenance may also include minor
improvements which could not be done efficiently with road construction
funds, or the removal of safety hazards. Maintenance does not include
constructing roads to a substantially higher standard.
Public road means any road or street under the jurisdiction of and
maintained by a public authority and open to public travel. (23 U.S.C.
101(a).)
Secretary means the Secretary of the Department of the Interior, or
a designated representative, who will usually be the Assistant
Secretary--Indian Affairs or a Deputy to the Commissioner of Indian
Affairs.
State means one of the 50 United States, a Territory, or a
political subdivision of a State or Territory. For purposes of 23
U.S.C. 402--Highway Safety Programs and for other programs in the
future, and with the approval of the Secretary of Transportation, State
may include the BIA; Governor of a State may include the Secretary of
the Interior; and a political subdivision of a State may include the
tribal government on an Indian Reservation.
Superintendent means the Agency Superintendent at all locations.
The Area Director or a designated representative may appear for the
Superintendent at public hearings on arterial roads which cross Agency
boundaries of jurisdiction.
Sec. 170.3 Federal Lands Highways Programs (23 U.S.C. 202 and 204).
(a) The coordinated Federal Lands Highways Program (FLHP) consists
of the Forest Highways, Public Lands Highways, Park Roads, Parkways and
Indian Reservation Roads as defined in 23 U.S.C. 101. The purpose is to
treat all Federal Roads which are public roads under the same uniform
policies as roads on the Federal-Aid Systems. (23 U.S.C. 204).
(b) BIA shall coordinate management of IRR construction with the
programs of the National Park Service, U.S. Forest Service, and the
Public Lands Highways program of the FHWA. BIA management policies
shall conform to policies for roads which are on the Federal-aid
highways, including application of the FAR and Government Accounting
Standards.
(c) In planning and constructing IRR the BIA may enter into
contracts with other Federal agencies, States, counties, cities, or
tribal governments. In these contracts, the BIA or one of the other
governmental agencies may be the lead agency, accepting contributions
from the other agencies involved. When the BIA is the lead agency in a
cooperative project with a State, county, local subdivision, or tribal
government, reimbursement authority shall be issued to the BIA for
crediting the funds received to the appropriation available for IRR
construction projects. All projects shall be developed in accordance
with the requirements of the National Environmental Policy Act, the
National Historic Preservation Act, and other Federal requirements.
These projects are included as part of the continuing cooperative and
comprehensive planning process used to develop Statewide transportation
improvement programs by States. The projects will also be part of
approved long-range and short-range plans in accordance with 23 U.S.C.
134, 135(e)(f) and 204(a).
(d) Indian labor shall be used at the maximum practical level on
projects using IRR construction funds or road maintenance funds. Since
ceilings on Federal employment do not apply to construction and
improvement of Indian reservation roads, staffing and overtime
decisions shall be based upon project requirements, efficiency, the
availability of Indian labor, and other governmental costs including
unemployment compensation and welfare. The BIA shall assist the FHWA
and the States to apply Indian preference to Federal-aid highway
projects on or near Indian reservations.
(e) The BIA shall cooperate with the FHWA in developing procedures
to provide the information needed by the Secretary of Transportation in
making the determination that a proposed obligation of IRR funds on a
Federal-aid project is supplemental to, and not in lieu of, the
obligation of a fair and equitable share of funds apportioned to the
State pursuant to 23 U.S.C. 104. The Secretary may enter into an
agreement with a State or subdivision of a State for supplementary
funding in the construction and maintenance of IRR. At locations where
road projects serve non-Indian land as well as Indian land, State
participation shall be requested. Funds for IRR may be used in
conjunction with Federal-aid funds on State Federal-aid highway
projects, including projects in the Highway Bridge Replacement and
Rehabilitation Program (HBRRP). Pursuant to 23 U.S.C. 144(g)(4), not
less than one percent of the apportioned HBRRP funds is set aside in
each State that has an Indian Reservation, as defined in 25 CFR 170.2,
within its boundaries for projects to replace, rehabilitate, paint, or
apply magnesium acetate to IRR bridges. The IRR funds can also be used
for the required 20 percent State match requirements. (23 U.S.C. 144).
(f) Subject to availability of qualified Indian contractors, IRR
construction contracts shall be advertised for award to the lowest
qualified bidder under the provisions of the Buy Indian Act of June 25,
1910 (36 Stat. 891). Subject to availability of qualified Indian
subcontractors, prime contractors shall be required to give preference
to Indian subcontractors on IRR construction contracts. A good faith
effort to locate qualified Indian contractors and subcontractors shall
be required. Incentives may be provided for training Indian
subcontractors. Contracts with tribal governments under Public Law 93-
638 shall be written, negotiated, and monitored to ensure meeting the
requirements of 23 U.S.C.
(g) On cooperative projects where Federal aid and IRR funds are
used, guidelines will be developed to include procedures for the BIA
and State to negotiate the use of the Buy Indian Act (36 Stat. 891)
based on the percentage of fund contribution for the project.
(h) IRR funds can also be used on tribally-owned vocational post-
secondary school road construction projects pursuant to section 1032(d)
of the ISTEA. For the purpose of this part, roads constructed under
section 1032(d) are public roads.
(i) The BIA, in cooperation with the FHWA and the states, will
develop procedures for implementing management systems for bridge,
pavement, and safety on Indian reservation roads (23 U.S.C. 204(a)).
Sec. 170.4 Approval of fund distribution.
(a) The Secretary, with the concurrence of the Secretary of
Transportation, shall approve the distribution of IRR construction
funds.
(b) The Secretary shall approve the distribution of maintenance
funds for Indian road needs. This type of approval does not require the
concurrence of the Secretary of Transportation.
(c) Indian tribal governments shall be consulted concerning the
distribution of Indian road construction and maintenance funds.
Sec. 170.5 Federal-aid highways.
(a) Federal-aid highways, containing rural major collector or
higher functional classification routes, are designated by each State
highway department in cooperation with local officials, and are subject
to the approval of the Secretary of Transportation. The BIA will assist
tribal governments as they participate in the State-Tribal
responsibility of designating Federal-aid highways which serve Indian
lands.
(b) Some public roads on Indian Reservations are eligible for
funding from the Federal-aid program through the States and counties.
Pursuant to 23 U.S.C. 204(c), IRR funds shall be supplementary to, and
not in lieu of, the obligation of funds apportioned to an IRR project
from the Federal-aid program. The BIA will assist tribal governments as
they participate with local governments in the development of programs
of construction projects and maintenance of those roads which are on
Indian Reservations.
Sec. 170.6 Road Inventory and Needs Study.
(a) The BIA shall maintain an inventory of identified Indian
Reservation Roads as defined in Sec. 170.2 of this subpart. The
inventory shall be maintained to provide: (1) Appropriate reports
required by 23 CFR 460.3(c), 23 CFR 470.107(b) and (c), or by
Congressional request.
(2) Long-range planning estimates of construction costs and annual
maintenance needs. This construction data will be provided to FHWA as
part of the annual Transportation Improvement Program (TIP)
requirements of 23 U.S.C. 135.
(b) An overall needs analysis will be an ongoing function by the
BIA to provide appropriate information necessary to develop a relative
needs data base. This data will be used in the budgetary process and as
support for any needs study to: (1) Make reports to Congress from time
to time or as required.
(2) Determine the costs for all identified Indian Reservation Roads
improvements.
(c) The BIA shall provide assistance to tribal governments in
developing their administrative capabilities for managing their
reservation transportation systems and economic development plans.
Sec. 170.7 Transportation planning.
The BIA shall carry out a transportation planning process for IRR
to support the construction and improvement program similar to 23
U.S.C. 134, 135, 307, and in accordance with 23 U.S.C. 204 (h) and (j).
Transportation plans shall be developed using an in-depth and
comprehensive evaluation of all factors and elements influencing the
orderly development of transportation systems. Planning will establish
a definitive system for determining the needs for both new and improved
highway facilities commensurate with social, environmental, and
economic conditions, and shall provide the information needed for
developing future transportation programs and distribution of IRR funds
in accordance with the relative needs of the various Indian
Reservations and tribal priorities. Transportation planning shall
consider the information contained in management systems for highway
pavement, bridges, and safety. BIA's transportation planning process
shall be reviewed and deemed adequate by FHWA.
Sec. 170.8 Selection of road construction project priorities.
(a) The Superintendent shall inform the appropriate local tribal
officials of all financial and technical information relating to the
IRR program and alternatives of proposed road developments, arranging
for technical assistance from other offices as required. The
Superintendent shall recommend to the tribe those proposed road
projects having the greatest need as determined by a comprehensive
transportation analysis. Tribes shall develop a prioritized list of
projects. Where more than one tribe is involved, the Superintendent
shall make special efforts to ensure that all tribes are informed and
given an opportunity to participate in priority decisions. Where the
Superintendent and the tribe or tribes cannot agree on priorities, the
Superintendent shall forward the proposals for review and decision to
the Area Office.
(b) The Assistant Secretary--Indian Affairs may establish
priorities for programs of national scope and for administrative
purposes with the concurrence of the Secretary of Transportation and in
consultation with national Indian organizations. Such national
priorities may include safety, hazard elimination, bridge programs, and
economic development.
Sec. 170.9 Annual program approval.
(a) The Secretary and the Secretary of Transportation, or an
authorized representative, shall approve all projects in the IRR
construction program before any expenditures are made. An annual
transportation improvement program shall be developed for approval of
the Secretary and the Secretary of Transportation or an authorized
representative, pursuant to 23 U.S.C. 135.
(b) Since IRR are defined in 23 U.S.C. 101 as public roads, no
funds appropriated for IRR may be spent for the construction,
maintenance, or improvement of roads which are not public roads, except
in emergencies hazardous to life or property, which are subsequently
reimbursed back to the IRR program, or except as noted in section
1032(d) of the ISTEA.
Sec. 170.10 Allocations.
After October 1 of each fiscal year, the Secretary of
Transportation shall allocate the sums appropriated for such fiscal
year as provided in 23 U.S.C. 202. Funds for IRR construction projects
shall be allocated according to the relative needs of the various
reservations as jointly identified by the Secretary and the Secretary
of Transportation. Allocations may be modified during the year to
ensure maximum benefit to the Indian people. The Secretary will
identify the amount of IRR funds allocated to each BIA Area Office and
how this amount was determined. The Secretary also will document how
each BIA Area Office distributes these funds.
Sec. 170.11 Availability of funds.
Funds authorized for IRR shall be available for contract or Force
Account construction upon distribution, or on October 1 of the fiscal
year for which authorized if no distribution is required. Any amount of
contract authority remaining unobligated at the end of a fiscal year
that is greater than the funds authorized during that fiscal year and
the prior three (3) fiscal years combined shall be considered lapsed
and will be withdrawn. The Secretary has authority to incur
obligations, approve projects, and enter into contracts under such
authorizations, and the action in doing so is deemed a contractual
obligation of the United States for the payment of the cost thereof,
and such funds shall be deemed to have been expended when so obligated
(23 U.S.C. 203).
Sec. 170.12 Program certification.
(a) The Secretary of Transportation may discharge all
responsibilities, or any part of them, pursuant to 23 U.S.C. 117
relative to projects in the IRR program, upon the request of the BIA,
by accepting a certification by the BIA of its performance of such
responsibilities. The acceptance of the BIA Certification by the
Secretary of Transportation acknowledges that the BIA road construction
program procedures shall be carried out in a manner which will
accomplish the objectives of title 23, U.S.C. The certification may
include all or part of the procedures, and may involve all or part of
the field offices, of BIA. The Secretary of Transportation may rescind
the BIA Certification of Performance of Responsibilities under 23
U.S.C. at any time considered necessary.
(b) The BIA will notify the Secretary of Transportation upon the
completion of each construction project. The Secretary of
Transportation shall require an adequate report of the estimated and
actual cost of construction, as well as such other information as is
determined necessary. All final inspections on each project will be
conducted in accordance with procedures jointly established by the
Secretary and the Secretary of Transportation.
Sec. 170.13 Program analysis.
To ensure proper implementation of title 23 U.S.C. requirements in
the IRR programs, the BIA shall conduct reviews at the national, Area,
and tribal levels. These reviews shall evaluate policy, procedures,
operations, and service delivery and shall make recommendations for
improvements and corrective actions in compliance with statutes,
manuals, and policy regarding road construction and road maintenance.
The BIA shall also analyze workload, adequacy of staffing, efficiency
of operations, and program effectiveness at each level and report to
the Assistant Secretary--Indian Affairs. A review of support services
to road programs shall be performed. The analysis shall assess the
efficiency of program operations; effectiveness of organizational
structures and relationships and of operating systems and procedures;
and work force requirements and utilization. It shall assist management
in the establishment of program objectives and provide a mechanism to
develop performance measurements; to ensure accountability for the
Highway Trust Funds; and to promote the efficiency, economy, and
effectiveness of roads programs.
Sec. 170.14 Right-of-way.
(a) The procedures for obtaining permission to survey or to grant
any necessary right-of-way are governed by 25 CFR part 169 of this
chapter. Prior to any work being done for the construction of road
projects, the Superintendent shall obtain the written consent of the
Indian and non-Indian landowners. Where an Indian has an interest in
tribal land, consent shall be obtained in accordance with the policy of
the Indian tribe. Right-of-way easements are to be documented on forms
approved by the Secretary. All right-of-way actions shall be in
accordance with the requirement of the Uniform Relocation Assistance
and Real Property Acquisition Policies Act (42 U.S.C. 4601 et seq. as
amended), and 49 CFR part 24.
(b) Prior to construction, right-of-way easements for the project
shall be obtained in favor of the public agency that will be
responsible for maintenance and reconstruction of the route. When that
agency is the BIA, easements shall be in favor of the United States,
its successors and assigns, with the right to construct, maintain, and
repair improvements thereon and thereover, for such purposes; and with
the further right in the United States, its successors and assigns, to
transfer the right-of-way easements by assignment, grant, or otherwise.
(c) No right-of-way shall be transferred without consultation with
the tribal government.
Sec. 170.15 Road design.
The BIA is responsible for collecting reliable data, designing safe
and economical roads, and developing adequate construction plans,
specifications, and estimates. General guidelines will be the latest
edition of the relevant American Association of State Highway and
Transportation Officials (AASHTO) publications, ``A Policy on Geometric
Design of Highways and Streets,'' and the ``Roadside Design Guide'';
and the FHWA publications, ``Standard Specifications for Construction
of Roads and Bridges on Federal Highway Projects'' (or approved State
specifications) and the ``Manual on Uniform Traffic Control Devices.''
Sec. 170.16 Method of construction.
Generally, the method of construction shall be by contract awarded
by competitive bidding. Construction may also be performed by Force
Account, with Federal employees, or by entering into construction
contracts with governmental agencies or tribes. The method of
construction for the IRR system shall be determined in consultation
with the tribes. Several factors shall be considered, including cost
effectiveness, the employment and training of Indians, effect on the
local economy, public interest findings, available equipment, available
Indian contractors, and social and economic development plans of the
tribe. (25 CFR 170.3(c) and 23 U.S.C. 204(e)).
Sec. 170.17 Use of roads.
(a) Free public use is required on roads eligible for construction
and maintenance with Federal funds under this part. The Superintendent
may restrict the use of roads or close them to public use when required
for public safety, fire prevention or suppression, fish or game
protection, or prevention of damage to unstable roadbeds.
(b) The BIA shall conduct engineering and traffic analysis in
accordance with established traffic engineering practices to determine
the necessary maximum speed limit, maximum vehicular size and weight
limit, and traffic control devices. The BIA shall, in cooperation with
tribes and local government officials, erect, maintain, and enforce
compliance with the needed regulatory signs and pavement markings in
accordance with the ``Manual on Uniform Traffic Control Devices
(MUTCD).''
Sec. 170.18 Equipment pool operations.
(a) BIA Equipment Pools operating on a reimbursable basis may rent
BIA-owned equipment to approved IRR Force Account projects funded under
contract authority from the Highway Trust Fund, or other authorized
Federal programs. The equipment pool manager must obtain reimbursement
authority to retain and re-obligate income for costs incurred. The
accounting procedures and methods of determining reimbursement costs
shall be uniformly and equitably applied to all projects and activities
irrespective of source of funds in accordance with the provisions of 23
CFR 140.715.
(b) Equipment rent shall be collected from approved projects and
activities for the use of pool equipment. The established equipment
rental rates shall be limited to the recovery of actual acquisition
costs, including equipment replacement costs, equipment pool overhead,
and actual operating cost. (See 23 CFR part 140 (Reimbursement) and 48
CFR part 31 (Contract Cost Principles and Procedures)). Examples of
eligible costs for reimbursement are listed in the Office of Management
and Budget (OMB) Circular A-87, General Accounting Office (GAO) TS2-24;
and the Federal Highway Administration Technical Advisory T4540.l.
Sec. 170.19 Maintenance of BIA system roads.
(a) The BIA shall maintain, or cause to be maintained, all roads on
the approved Bureau of Indian Affairs Road System. The BIA shall also
maintain other public roads in accordance with agreements with the
public agencies responsible for those roads.
(b) The Superintendent shall monitor the maintenance of all roads
meeting the definition of IRR to assure that Indians are receiving a
fair and equitable share of road maintenance services provided by funds
derived from highway user taxes. Where problems are identified, the
Superintendent shall coordinate a meeting of appropriate tribal
representatives and other government officials to discuss methods of
correcting the problems. Where these problems cannot be resolved
locally, the Superintendent shall refer this matter to the Area
Director. The Area Director shall attempt to resolve the problems with
the assistance of the FHWA and the State Officials. Any problems that
cannot be resolved at the Area level shall be referred to the Assistant
Secretary--Indian Affairs.
(c) Any jurisdiction failing to maintain roads constructed with
Highway Trust Funds shall be ineligible for further Highway Trust
Funded construction projects (23 U.S.C. 116).
Sec. 170.20 Pedestrian and bicycle facilities.
(a) For purposes of transportation, safety, and energy
conservation, and for encouraging multiple use of road rights-of- way,
road construction funds may be used to construct pedestrian and bicycle
facilities on road rights-of-way, within limitations established by 23
U.S.C. 217.
(b) For transportation and not specifically for recreational
purposes, bicycle facilities may be constructed with road construction
funds at the discretion of the BIA on separate rights-of-way (23 U.S.C.
217 (b) and (c)).
Sec. 170.21 Emergency Relief Program.
Any natural disaster over a widespread area or catastrophic failure
which causes serious (more than heavy maintenance) damage to IRR, may
be cause for eligibility for reimbursement under the Emergency Relief
Program of 23 U.S.C. 125 and 23 CFR part 668. To qualify, the
occurrence should be declared a disaster by the President of the United
States and shall have a positive finding determination made by the
Federal Highway Administration. If the road repairs in an area may be
considered for authorization under the Emergency Relief Program,
records and photographs of the damage sites and of initial repairs and
closures to assure public safety shall be kept by the BIA for possible
reimbursement under this program. Those initial repairs may, as an
emergency measure, be charged to any available program under the
control of the line official. Reimbursement will be made from Emergency
Relief Funds after approval, or from road maintenance funds if approval
is denied. Careful analysis of program fund usage shall be made
considering the temporary charges made to a program whose authority may
terminate with the fiscal year. (Specific procedures to be followed in
the Emergency Relief Program are contained in 23 CFR part 668.)
Sec. 170.22 Bridges.
(a) The existence of a flood plain encroachment by a proposed
structure shall be determined by technical study. An analysis of the
hydrology and the hydraulics of the site shall be performed in
accordance with established Executive Order 11988 as implemented in 23
CFR 650.111.
(b) All existing bridges on the BIA road system shall be inspected
periodically for structural condition and functional adequacy, in
accordance with 23 U.S.C. 144 and 151. These field inspections shall be
conducted in accordance with the National Bridge Inspection Standards.
The following measures shall be taken in accordance with
recommendations of the inspecting engineer in the field inspection
report, as amended by a technical review by the BIA Division of
Transportation and the Area Road Engineer, in order to protect the
safety of the travelling public:
(1) The erection and maintenance of load limit and safety warning
signs and other maintenance work;
(2) The construction or installation of safety enhancement
appurtenances such as traffic delineators, bridge railing and approach
guardrailing; and
(3) The rehabilitation or replacement of deficient structures. (23
U.S.C. 144 (g)(4)).
(c) Current data obtained from the bridge inspections shall be
maintained in a computer inventory file. The inventory data shall be
used to produce a biennial bridge inventory report and an annual bridge
sufficiency rating report.
(d) The National Bridge Inspection Standards require each State to
maintain an inventory of all bridge structures subject to the
Standards, which includes all bridges on public roads. Therefore, the
required inventory and inspection data for all IRR bridges must be
submitted to the State for inclusion in the State's bridge inventory
file. The data shall include all items contained in the current
``Recording and Coding Guide for the Structure Inventory and Appraisal
of the Nation's Bridges.''
(e) Bridges that are identified on the bridge sufficiency rating
report as being deficient shall be prioritized and programmed for
closure, maintenance, rehabilitation, or replacement. Correction of the
deficiency shall be accomplished expeditiously after the deficiency is
first identified.
Sec. 170.23 Airports.
Airports, including heliports, which provide service to Indian
reservations shall not be constructed or improved with appropriated
road construction or road maintenance funds. Public airports and
heliports may be maintained with road maintenance funds in accordance
with appropriations and tribal priorities.
Sec. 170.24 Public Law 93-638 road maintenance and construction
contracts.
To assist tribes in compliance with the requirements of Subchapter
M--Indian Self-Determination, the BIA shall develop guidelines and
model contracts for road construction and maintenance, modify those
contracts as necessary for local conditions, and provide technical
assistance to the tribes in developing capability to meet contract
conditions, maintain adequate records, and prepare required reports.
Sec. 170.25 Program requirements for road maintenance.
(a) The IRR Maintenance program provides for maintenance of paved
roads, graveled roads and earth surface roads. Funds distribution shall
be provided at all reservations which have a road maintenance program,
in accordance with uniform BIA criteria.
(b) Road maintenance shall be completed in accordance with industry
standards for planning, scheduling, and accomplishments, and with the
guidelines in 23 CFR 635.505. After emergency maintenance, priority
shall be for roads on the BIA system.
(c) Annual data on road maintenance needs accomplishments and
expenditures for the annual nationwide road maintenance status report
and for budgeting purposes shall be provided.
(d) The Area Director's approval is required for plans,
specifications, and estimates (PS&E) for pavement sealing projects
using Highway Trust Funds, 23 U.S.C. 204(c), and specific maintenance
agreements, contracts or other applicable documents. The Area Director
shall monitor road maintenance contracts as necessary to fulfill the
Secretary's trust responsibilities, ensure contract compliance, and the
adequacy of deliverables.
Sec. 170.26 Program requirements for road construction.
(a) Projects for IRR construction shall be ``treated under the same
uniform policies as roads which are on the Federal-aid systems,'' in
accordance with 23 U.S.C. 204, Public Law 97-424, and subsequent
Highway Acts. Project priorities are selected by the tribes with the
concurrence of the BIA and the FHWA.
(b) The minimum standard shall be American Association of State
Highway and Transportation Officials (AASHTO) design standards
applicable to the planned type of construction; and for construction,
FHWA's current ``Standard Specification and Construction Manual for
Construction of Roads and Bridges on Federal Highway Projects.'' State
Highway Standard Specifications may be substituted when properly
modified to meet the requirements of Federal construction contracts.
(c) BIA force account operations, Buy Indian and open market
contractors, and Tribal Pub. L. 93-638 contractors shall construct the
IRR project in accordance with the plans and specifications for said
project.
(d) Emergencies that endanger life or property or that affect the
quality of construction shall be reported to the Contracting Officer in
the most expeditious manner.
(e) Plans, specifications, and estimates (PS&E) are deliverables
for IRR design projects.
(f) Progress reports are required to support requests for payments.
Reports may be required for annual and final accomplishments and for
completed and accepted projects, including as-built plans; project
engineer's diaries; daily inspection reports; testing reports; and all
supporting data, including automated data processing (ADP) data,
environmental studies, engineering analysis, design exceptions, and
approved extra work orders.
(g) A summary report of employment shall be submitted within 30
days of the end of each fiscal year for all projects and shall include
the hours and amounts paid to Indians and all other employees by
contractor and project.
(h) Year-end closing statements shall include reports on total
cumulative obligations and expenditures by project and budget category.
An annual summary report of all emergency projects shall be provided.
Sec. 170.27 Education and training (23 U.S.C. 326).
(a) A transportation assistance program is authorized pursuant to
23 U.S.C. 326. It provides for the Secretary of Transportation to make
grants and enter into contracts for education and training, technical
assistance, and related support service that will: (1) Assist rural
local transportation agencies to develop and expand their expertise in
road and transportation areas to improve roads and bridges; to enhance
programs for the movement of passengers and freight; and to deal
effectively with special road related problems by preparing and
providing training packages, manuals, guidelines, and technical
resource materials, and developing a tourism and recreational travel
technical assistance program;
(2) Identify, package, and deliver usable highway technology to
local jurisdictions to assist urban transportation agencies in
developing and expanding their ability to deal effectively with road
related problems; and
(3) Establish, in cooperation with State transportation or highway
departments and universities: (i) Urban technical assistance program
centers in States with 2 or more urbanized areas of 50,000 to 1,000,000
population; and (ii) rural technical assistance program centers.
(b) Not less than 2 centers under paragraph (a)(3) of this section
shall be designated to provide transportation assistance that may
include, but is not necessarily limited to, a ``circuit-rider''
program, providing training on intergovernmental transportation
planning and project selection, and tourism and recreational travel to
American Indian tribal governments.
(c) Funds required to carry out the provisions of this section
shall be taken out of administrative funds deducted pursuant to 23
U.S.C. 104(a). This includes up to 100 percent for services provided to
American Indian tribal governments. In addition, the Secretary of the
Interior may reserve funds from the Bureau of Indian Affairs'
administrative funds associated with the Indian reservation roads
program to finance the Indian technical centers authorized pursuant to
23 U.S.C. 326.
Subpart B--Public Hearings on Road Projects
Sec. 170.30 Purpose and objectives.
The regulations in this subpart govern the notification and conduct
of public hearings on BIA road projects in order to promote
coordination and comprehensive planning of construction activities on
Indian reservations. The objectives for conducting public hearings on
proposed road projects are to: (a) Inform interested persons of the
road proposals that affect them and allow such persons to express their
views at those stages of the project's development when the flexibility
to respond to these views still exists; and
(b) Ensure that road locations and designs are consistent with the
reservations objectives and with applicable Federal regulations.
Sec. 170.31 Criteria.
A public hearing shall be held for each project if it: (a) Is a new
route being constructed;
(b) Would significantly change the layout or function of connecting
or related roads or streets;
(c) Would cause substantial adverse effect on adjacent real
property; or
(d) Is expected to be of a controversial nature.
Sec. 170.32 Need for public hearing determined.
The Superintendent shall call a meeting of representatives from the
tribe, the BIA, and other appropriate agencies to determine if a public
hearing is needed for each road project. The determination shall be
based on the criteria given in Sec. 170.31. More than one public
hearing may be held for a project if necessary.
Sec. 170.33 Notice of road construction projects in lieu of hearing.
When no public hearing is scheduled for a road construction
project, notice of the road construction project shall be given at
least 90 calendar days before the date construction is scheduled to
begin. The notice shall give the project name and location, the type of
improvement planned, the date construction is scheduled to start, and
the name and address of the office where more information can be
obtained, and provisions for requesting a hearing within a set time.
The notice shall be posted or published as determined by the
Superintendent.
Sec. 170.34 Notice of public hearing.
Notice shall be given to inform the local public of the scheduled
hearing. The notice should give the date, time, and place of the
scheduled hearing; the project location; the proposed work to be done;
the place where the preliminary plans may be reviewed; and the place
where more information on the project can be obtained. The notice shall
be posted or published as determined by the Superintendent. Notice
shall be given at least 30 calendar days before the scheduled date of
the public hearing. A second notice of hearing is optional at the
discretion of the Agency Superintendent.
Sec. 170.35 Record of hearing proceedings.
A record of the hearing shall be made, which shall include a
summary of verbal testimony and all written statements that are
submitted at the hearing or within five (5) working days following the
hearing.
Sec. 170.36 Conducting the public hearing.
(a) The Superintendent shall appoint a tribal or BIA official to
preside at the public hearing and to maintain a free and open
discussion designed to reach early and amicable resolution of issues.
(b) The Superintendent shall be responsible for maintaining the
official record of the hearings and shall make arrangements for
appropriate officials to be present at the hearing to be responsive to
questions that may arise.
(c) The purpose of the hearing and an agenda of items to be
discussed should be presented at the beginning of the hearing. It shall
be made clear at the hearing that the tribal government or designated
roads committee are responsible for setting reservation road priorities
and for considering public comments and the merits of one road project
over another. Sufficient maps and project plans will be available at
the hearing for public review. The hearing audience should be informed
of the BIA road construction and right-of-way acquisition procedures on
reservations. If the project will require relocating residences or
businesses, information on relocation services and authorized payments
shall be given in accordance with the Uniform Relocation and Real
Property Acquisition Policies Act, Pub. L. 91-646, 84 Stat. 1894 (42
U.S.C. 4601 et seq. as amended).
Sec. 170.37 Written statements.
At the public hearing, written statements may be submitted to the
presiding official, either in lieu of or in addition to oral
statements. Written statements also may be submitted to the Agency
Superintendent during the five working days following the hearing.
Sec. 170.38 Hearing statement.
The Superintendent shall issue a hearing statement summarizing the
results of the public hearing and the determination of the further
action to be taken in connection with the proposed project. The hearing
statement shall be issued within 20 working days of the date of the
public hearing. The hearing statement shall be posted at the place
where the hearing was held, and may be sent to interested persons upon
request. The hearing statement shall outline procedures whereby the
determination may be appealed.
Sec. 170.39 Appeals.
Any determination concerning the proposed road project may be
appealed in accordance with the procedures set forth in 25 CFR part 2.
Sec. 170.40 Information collection requirements.
There are no information collection requirements contained in this
part which require the approval of the Office of Management and Budget
under 44 U.S.C. 1501.
Sec. 170.41 Roadless and wild areas.
Roads passable to motor transportation shall not be constructed
under the regulations in this part within the boundaries of the
roadless and wild areas established in 25 CFR part 265, chapter 1.
Approval Date: February 1, 1994.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 94-6876 Filed 3-23-94; 8:45 am]
BILLING CODE 4310-02-P
