2014-29604. Tribal Transportation Program

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Proposed rule.

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 OIRA_Submission@omb.eop.gov. 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; elizabeth.appel@bia.gov. 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:

Meeting date	Location	Time
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, OK	9 a.m.-4:00 p.m.
February 10, 2015	Anchorage, AK	9 a.m.-4:00 p.m.
February 12, 2015	Seattle, WA	9 a.m.-4:00 p.m.

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.Start Printed 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 Start Printed Page 76194are 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.

Citation 25 CFR 170	Information	Average number of hours	Average number per year	Estimated annual burden hours
170.444	Provide and Review Information	20	141	2,820
170.411	Long Range Transportation Plan Contents	40	113	4,520
170.421	Reporting Requirement for Tribal Transportation Improvement Program (TTIP)	10	281	2,810
170.420	Reporting Requirement for Tribal Priority List	10	281	2,810
170.412	Submission of Long Range Transportation Plan to BIA and Public, and Further Development	40	113	4,520
170.437	Notice of Requirements for Public Hearing	1/2	205	103
170.439	Record keeping Requirement—Record of Public Hearing	1	205	205
170.456	Provide Information for Exception	4	10	40

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: OIRA_Submission@omb.eop.gov. 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;

(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

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.
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?Start Printed 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?
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?
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?
170.117: Can TTP funds be used on seasonal transportation routes?
170.118: What terms apply to access roads?
170.119: Are housing access roads and housing streets eligible for TTP funding?
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?
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?
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?
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?
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?
170.138: What are Tribal Technical Assistance Centers?
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?
170.225: How does a long-range transportation plan relate to the National Tribal Transportation Facility Inventory?
170.226: How can a tribe appeal its share calculation?
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?
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?
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?
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?
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?
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?
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?Start Printed Page 76197
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?
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?
170.502: Are nationwide management systems required for the TTP?
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?
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?
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?
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?
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?
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?
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?
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?
170.934: Are alternative dispute resolution procedures available?
170.935: How does a direct service tribe begin the alternative dispute resolution process?
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

§ 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.

§ 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, Start Printed Page 76198program 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.

§ 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.

§ 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;

(d) Impede awards by other agencies of the United States or a State to tribes to administer programs under any other law.

§ 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 Start Printed 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 Start Printed Page 76200the 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) Start Printed Page 76201to 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.

§ 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

§ 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.

(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.

§ 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.

§ 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.

§ 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; andStart Printed Page 76202

(b) Provide information under § 170.600 within 30 days of the notice of availability of funds.

§ 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;

(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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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

§ 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.

§ 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;

(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 § 170.113; or

(f) Condemnation of land for recreational trails.

§ 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 Start Printed Page 76203receiving 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.

(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

§ 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 § 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.

§ 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.

§ 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 § 170.115(c).

Seasonal Transportation Routes

§ 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 § 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

§ 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.

§ 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

§ 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.

§ 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.

§ 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 § 170.805.

Recreation, Tourism, and Trails

§ 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);

(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.

§ 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 § 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.

§ 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.

§ 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

§ 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.

(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.

§ 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 § 170.113.

§ 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.

§ 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

§ 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.

§ 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.

§ 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.

§ 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;

(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

§ 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.

§ 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.Start Printed 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.

§ 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.

(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

§ 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 § 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 §§ 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 Start Printed Page 76207non-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 § 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 §§ 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 § 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 §§ 170.113 and 170.136).

(67) Other eligible activities identified in this part.

(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

§ 170.200

How do BIA and FHWA determine the TTP funding amount?

The annual TTP funding amount available for distribution is determined as follows:Start Printed 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 § 170.201 and tribal supplemental funding as described in § 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 § 170.201 and tribal supplemental funding as described in § 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 § 170.201 and tribal supplemental funding as described in § 170.202.

§ 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.

§ 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 § 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 § 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 § 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 § 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 § 170.200 and paragraphs (b), (c), and (d) of this section.

§ 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 § 170.200(a)(1) pro rata to the tribe's final percentage as determined under §§ 170.200 through 170.202. The tribal transportation planning funds will be distributed to the tribes under applicable BIA and FHWA contracting procedures.

§ 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).

§ 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 Start Printed Page 76209the 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

§ 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 § 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

§ 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 § 170.444(c), design standards at § 170.457, and new uses of funds at § 170.113.

Flexible Financing

§ 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.

§ 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.

§ 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.

§ 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

§ 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.

§ 170.401

What are BIA's and FHWA's roles in transportation planning?

Except as provided in § 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;

(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.

§ 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.

§ 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.

§ 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.

§ 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 § 170.402.

§§ 170.406—170.409

[Reserved]

§ 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.

§ 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.

§ 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 § 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.

§ 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).

§ 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.

§ 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.Start Printed 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.

§ 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

§ 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.

§ 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.

§ 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.

§ 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.

§ 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 § 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 § 170.427), to the TTPTIP so that the Secretaries can approve the new updated TTPTIP before the start of the next fiscal year.

§ 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.

§ 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 Start Printed Page 76212year 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.

§ 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

§ 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;

(d) Is controversial or expected to be controversial in nature.

§ 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 § 170.403.

§ 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.

§ 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.

§ 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.

(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.

§ 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;

(d) Outlines appeal procedures.

§ 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

§ 170.442

What is the National Tribal Transportation Facility Inventory?

(a) The National Tribal Transportation Facility Inventory (NTTFI), is defined under § 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.

§ 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 Start Printed Page 76213construction 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.

§ 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 § 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.

§ 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.

§ 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 § 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 Start Printed Page 76214or 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

§ 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/.

§ 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 § 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.

§ 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

§ 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.

§ 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

§ 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.

§ 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

§ 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;

(d) Required environmental, archeological, and cultural clearances; and

(e) Identification of design exceptions if used in the plans.

§ 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 § 170.460 to BIA or FHWA before the start of construction.

§ 170.463

What if a design deficiency is identified?

If the Secretaries identify a design deficiency that may jeopardize public Start Printed Page 76215health 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 § 170.454; and

(b) For a BIA-prepared PS&E package, promptly resolve the deficiency under the standards in § 170.454 and notify the tribe of the required design changes.

Construction and Construction Monitoring

§ 170.470

Which construction standards must tribes use?

(a) Tribes must either:

(1) Use the approved standards referred to in § 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 § 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.

§ 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.

(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.

§ 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.

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

§ 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 § 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.

§ 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 by . . .	then . . .	and the closeout report must . . .
(a) BIA	The region engineer or designee is responsible for closing out the project and preparing the report	(1) Summarize the construction project records to ensure compliance requirements have been met; (2) Review the bid item quantities and expenditures to ensure reasonable conformance with the PS&E and modifications; (3) Be completed within 120 calendar days of the date of acceptance of the TTP construction project; and (4) Be provided to the affected tribes and the Secretaries.
Start Printed Page 76216
(b) A tribe	Agreements negotiated under ISDEAA, FHWA, or other appropriate agreements specify who is responsible for closeout and preparing the report	(1) Meet the requirements of ISDEAA; (2) Comply with 25 CFR 900.130(d) and 131(b)(10) and 25 CFR 1000.249, as applicable; (3) Be completed within 120 calendar days of the date of acceptance of the project; and (4) Be provided to all parties specified in the agreements negotiated under ISDEAA.

Management Systems

§ 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

§ 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.

§ 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.

§ 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.

§ 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 § 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.

§ 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

§ 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.

§ 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

§ 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.

§ 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:Start Printed Page 76217

Legislation, regulation or other requirement	Applies to tribes under self‐determination contracts	Applies to tribes under self‐governance agreements	Applies to tribes under BIA or FHWA program agreements	Applies to activities performed by the Secretary
Buy Indian Act	No	No	No	Yes.
Buy American Act	No	No	No	Yes.
Federal Acquisition Regulation (FAR)	No(1)	No	No	Yes.
Federal Tort Claims Act	Yes	Yes	Yes	Yes.
Davis‐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.

§ 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.

§ 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.

§ 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

§ 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.

§ 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.

§ 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.

§ 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 § 170.600(a) when partial year funding is made available to the TTP through continuing resolutions or other Congressional actions.

§ 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. 450 l for self-determination contracts on a quarterly, semiannual, lump-sum, or other basis proposed by a tribe and authorized by law.

§ 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.

§ 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.

§ 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.

§ 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:

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 tribe	Section 7(b) under Title 1 of ISDEAA applies.
(c) A self‐governance agreement exists under Title IV of ISDEAA	25 CFR 1000.406 applies.
(d) A Program Agreement	The language of the Program Agreement applies.

§ 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.

§ 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

§ 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.

§ 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.

§ 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.

§ 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

§ 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 agreement is with . . .	and . . .	then the tribe must . . .
(a) The Secretary	the contract is a self-determination contract	follow the procedures in ISDEAA, Title I, and 25 CFR 900.140 through 900.148.
(b) The Secretary	the agreement is a tribal self-governance agreement	follow the procedures in 25 CFR 1000.220 through 1000.232.
(c) The Secretary of Transportation		make the request to 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 § 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.

(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.Start Printed 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.Start Printed 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

§ 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.

§ 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.

§ 170.702

What activities may the Secretaries review and monitor?

The Secretaries review and monitor the performance of all TTP activities.

§ 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.

(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.

§ 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;

(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

§ 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.

(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.

§ 170.801

Can maintenance funds be used to improve TTP transportation facilities?

No. The funds identified for maintenance in § 170.800 cannot be used to improve roads or other TTP transportation facilities to a higher road classification, standard or capacity.

§ 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.

§ 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.

§ 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.

§ 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/.

Subpart H—Miscellaneous Provisions

Reporting Requirements and Indian Preference

§ 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.

§ 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.

§ 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.

§ 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 § 170.619 and 25 U.S.C. 450e(c).)

§ 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.

§ 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.

§ 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.

§ 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.

§ 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

§ 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.

§ 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 § 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.

§ 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;

(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.

§ 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

§ 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 Start Printed Page 76222non-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.

§ 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

§ 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;

(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.

§ 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.

§ 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

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Document Information

Published:: 12/19/2014
Department:: Indian Affairs Bureau
Entry Type:: Proposed Rule
Action:: Proposed rule.
Document Number:: 2014-29604
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.
Pages:: 76191-76222 (32 pages)
Docket Numbers:: BIA 2014-0005, K00103 12/13 A3A10, 134D0102DR-DS5A300000-DR.5A311.IA000113
RINs:: 1076-AF19: Tribal Transportation Program (Formerly the Indian Reservation Roads Program)
RIN Links:: https://www.federalregister.gov/regulations/1076-AF19/tribal-transportation-program-formerly-the-indian-reservation-roads-program-
Topics:: Highways and roads, Indians-lands
PDF File:: 2014-29604.pdf
CFR: (163): 25 CFR 170.406—170.409; 25 CFR 170.1; 25 CFR 170.2; 25 CFR 170.3; 25 CFR 170.4; More ...