[Federal Register: July 19, 2004 (Volume 69, Number 137)]
[Rules and Regulations]
[Page 43089-43141]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jy04-21]
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Part III
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 170
Indian Reservation Roads Program; Final Rule
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 170
RIN 1076-AE17
Indian Reservation Roads Program
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: This final rule establishes policies and procedures governing
the Indian Reservation Roads (IRR) Program. The IRR Program is a part
of the Federal Lands Highway Program established to address
transportation needs of tribes. The program is jointly administered by
the Bureau of Indian Affairs (BIA) and Federal Highway Administration's
(FHWA) Federal Lands Highway (FLH) Office. It expands transportation
activities available to tribes and tribal organizations and provides
guidance for planning, designing, constructing, and maintaining
transportation facilities. It also establishes a funding distribution
methodology called the Tribal Transportation Allocation Methodology
(TTAM). The TTAM includes a factor for allocating IRR Program funds
based on the relative needs of tribes and reservation or tribal
communities for transportation assistance. It also addresses the
administrative capacities of, and challenges faced by, various tribes
including the cost of road construction, geographic isolation, and
difficulty in maintaining all weather access to essential resources and
services. The TTAM provides funding for Indian Reservation Roads High
Priority Projects that would not otherwise have sufficient funding; and
makes available a minimum allocation to tribes if funding levels are
sufficient.
DATES: Effective Date: October 1, 2004.
ADDRESSES: LeRoy Gishi, Chief, Division of Transportation, Bureau of
Indian Affairs, 1951 Constitution Avenue, NW., MS-320-SIB, Washington,
DC 20240, Telephone 202-513-7711 or Fax 202-208-4696.
SUPPLEMENTARY INFORMATION:
I. Background
What Information Does This Section Address?
This section addresses:
The Transportation Equity Act for the 21st Century (TEA-
21), Public Law (Pub. L.) 105-178;
The IRR Program;
Publication of the NPRM;
Public comments.
What Is the Transportation Equity Act for the 21st Century?
The Transportation Equity Act for the 21st Century (TEA-21), Pub.
L. 105-178, 112 Stat. 107, signed into law in 1998, is a broad-based
statute that authorizes and expands the use of Federal Highway Trust
funds through fiscal year 2003. Congress has extended TEA-21 and
authorized the use of Federal Highway Trust funds into fiscal year
2004. A new transportation authorization bill is currently before
Congress.
TEA-21 contained several provisions that directly affect the Indian
Reservation Roads (IRR) program. TEA-21:
Authorized $1.6 billion for the IRR Program for fiscal
years 1998-2003;
Provided that an Indian tribal government may request to
enter into contracts or agreements under the Indian Self-Determination
and Education Assistance Act (ISDEAA), Pub. L. 93-638, as amended, for
IRR Program roads and bridges;
Established the Indian Reservation Roads Bridge Program
(IRRBP), codified at 23 U.S.C. 202 (d)(3)(B) under which a minimum of
$13 million of IRR Program funds was set aside for a nationwide
priority program for improving deficient IRR bridges. (On May 8, 2003,
the Federal Highway Administration published a final rule for the IRR
bridge program (68 FR 24642, now found at 23 CFR 661); and
Required negotiated rulemaking between representatives of
Indian tribes and the Federal Government (Department of the Interior
(DOI) and Department of Transportation (DOT)) to develop IRR Program
procedures and a funding formula to distribute IRR Program funds.
What Is the Indian Reservation Roads Program?
The Indian Reservation Roads (IRR) Program is a part of the Federal
Lands Highway Program established in 23 U.S.C. 204 to address
transportation needs of tribes. The program is jointly administered by
the Bureau of Indian Affairs (BIA) and Federal Highway Administration's
(FHWA) Federal Lands Highway (FLH) Office. The IRR Program was
established on May 26, 1928, by Pub. L. 520, 25 U.S.C. 318(a). It
authorized the Secretary of Agriculture (which had responsibility for
Federal roads at that time) to cooperate with state highway agencies
and DOI to survey, construct, reconstruct, and maintain Indian
reservation roads serving Indian lands. In 1982, under the Surface
Transportation Assistance Act of 1982 (STAA), Pub. L. 97-424, Congress
created the Federal Lands Highway Program (FLHP). This coordinated
program addresses access needs to and within Indian and other Federal
lands. The IRR Program is a funding category of this program. STAA
expanded the IRR system to include tribally-owned public roads as well
as state and county-owned roads. Each fiscal year FHWA determines the
amount of funds available for construction. The BIA works with tribal
governments and tribal organizations to develop an annual priority
program of construction projects which is submitted to FHWA for
approval based on available funding. FHWA allocates funds to BIA which
distributes them for IRR projects on or near Indian reservations
according to the annual approved priority program of projects (for
further background information on the IRR Program see 67 FR 51328,
August 7, 2002). The duties and responsibilities of BIA and FHWA are
described in a Memorandum of Agreement between the two agencies.
What Is the Purpose of the IRR Program?
The purpose of the IRR Program is to provide safe and adequate
transportation and public road access to and within Indian
reservations, Indian lands, and communities for Indians and Alaska
Natives, visitors, recreational users, resource users, and others,
while contributing to economic development, self-determination, and
employment of Indians and Alaska Natives. As of October 2003, the IRR
system consisted of approximately 25,700 miles of BIA and tribally-
owned public roads and 38,000 miles of state, county, and local
government public roads.
How Is the IRR Program Funded?
From the DOT appropriation, FHWA reserves an amount specified in 23
U.S.C. 204 or in the DOT annual appropriations act. BIA and FHWA
jointly administer the distribution of IRR Program funds under
applicable laws and regulations.
Where Is Information on the TEA-21 Negotiated Rulemaking Process Found?
Information on the TEA-21 Negotiated Rulemaking process is found at
67 FR 51328, August 7, 2002.
How Did the Department Handle Public Comments to the Notice of Proposed
Rulemaking (NPRM)?
The NPRM, published August 7, 2002, provided for a 60-day comment
period which was extended an additional 30 days to November 7, 2002.
The DOT's Dockets Management Facility received
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electronic and written comments and posted them on its Web site at
http://dms.dot.gov. We received responses from 1586 commenters. Most
responses contained more than one comment on a variety of issues in the
NPRM. At the close of the public comment period, DOI contracted with
the U.S. Forest Service's Content Analysis Team to compile, organize,
and summarize the public comments. The TEA-21 Negotiated Rulemaking
Committee (Committee) reconvened in February and March, 2003, to review
and consider the comment summation and make recommendations for the
final rule based on public comments. All comments were carefully
considered.
Some commenters made recommendations for changes that were not
accepted or not acted upon for various reasons (such as requests for
unnecessary detail, unclear requests, requests or comments that were
unresponsive to the proposed rule or comments that were beyond the
scope of the rule). Some commenters made statements of opinion or
position, but requested or indicated no changes. Several commenters
discussed issues that were the responsibility of other government
entities and were therefore beyond the authority of the Secretary of
the Interior to change. We did not adopt these changes. Some commenters
requested modifications that required additional statutory authority
and their comments could not be adopted. A few commenters made
suggestions for grammatical and organizational changes which were
adopted.
The Committee either accepted comments, accepted comments with
modification(s), or rejected comments. DOI reviewed the Committee's
recommendations on the public comments for the final rule. The
discussion of changes from the NPRM to this final rule included in this
preamble reflect major substantive public comments received on the
NPRM. The full public comment compilation and summation report is
available at http://www.dot.gov. or by contacting the Chief, Division
of Transportation, Bureau of Indian Affairs, at the address provided in
the ADDRESSES section of this preamble.
In addition to changes the Committee made based on public comments,
DOI reviewed the rule for legal and policy issues and edited the rule
for clarity, conciseness, and Federal Register format. Some sections
were combined or rearranged and others were revised under Departmental
or Federal Register requirements. Where questions and answers were
found not to be entirely consistent in language, we revised them for
consistency. We also made editorial and substantive changes to clarify
or correct errors or omissions in the NPRM. These include changes to
Subpart C--Indian Reservation Roads Program Funding. Because the
funding methodology is central to this rule it was essential that DOI
thoroughly understand the details and ultimate purpose of the tribally-
proposed TTAM in order to implement it. On two separate occasions we
verified the intent of the tribally-proposed TTAM with tribal committee
representatives. Based on the verification of intent from the Committee
and on public comments, we found errors in the data contained in the
tables and appendices for Subpart C. The proposed funding model (the
simplified approach) was the mathematical model published in the NPRM.
This model was mathematically incomplete because it did not account for
all possible combinations for use of eligible data. Because this
distribution of data affected all tribes, the TTAM could not be
implemented with the existing data. We corrected data errors and edited
tables to make them consistent with Subpart C and to ensure
implementation of the TTAM. We did not change defaults and items that
tribal representatives negotiated. We made substantive changes in the
IRRHPP sections because they were internally inconsistent. For example,
the time lines for IRRHPP applications and approvals were inconsistent
with availability of funding from FHWA. The TTAM published in this
final rule reflects the intent of the proposed funding methodology
developed under negotiated rulemaking.
Key Areas of Disagreement
The NPRM Preamble contained Key Areas of Disagreement upon which
the TEA-21 Negotiated Rulemaking Committee was unable to reach
consensus. For each of the disagreement items the tribal and Federal
sides presented their views, followed by their respective proposed
questions and answers on those issues in the NPRM. The Administrative
Procedure Act requires notice and comment on proposed rules which
necessitates including the disagreement item questions and answers in
the NPRM. We included the Federal version of the questions and answers
for disagreement items in the appropriate subparts of the NPRM for
comment. In addition, for easy reference within the NPRM preamble, we
listed the section numbers where we inserted the Federal proposed
sections for each of the sections on disagreement items.
During consideration of the public comments, the tribal and Federal
representatives discussed the disagreement items and, based on public
comments, resolved six areas of disagreement from the NPRM. The
Committee made recommendations for changes on these in the final rule
and DOI adopted them, revising the relevant sections in the final rule.
A discussion of the resolution of disagreement items is found below.
Committee Recommendations To Resolve Disagreement Items
Based on discussions of public comments, the tribal and Federal
sides were able to resolve several disagreement items. Based on those
agreements, the Committee made recommendations to the Secretary for
resolving the following disagreement items. The section numbers cited
below refer to the section numbers in the NPRM. See the Conversion
Table for the section numbers in the final rule.
The first area of disagreement resolved is ``Eligibility'' in
subpart B (Sec. 170.116). The disagreement issue was whether BIA or
FHWA should make the determination on new proposed uses of IRR Program
funds and the time period for BIA or FHWA to review any submission for
a proposed new use. The Federal position was that FHWA approval was
required for any new proposed use of IRR Program funds with a 60-day
time period for review. The tribal position was that only BIA approval
was required and the time for review should be shortened. The
compromise, which is reflected in the new section (Sec. 170.117),
requires that tribes send requests for new proposed uses of IRR Program
funds only to BIA for approval and send copies of the requests to the
FHWA. Also, by agreement of the tribal and Federal sides, we changed
the time for review of any proposed new use of IRR Program funds from
60 days to 45 days.
The second area of disagreement resolved is ``Updating the IRRTIP''
in subpart D (Sec. 170.420). The issue involved how often
Transportation Improvement Plans (TIPs) are updated. The tribal
position recommended that updates to the IRRTIP occur on a quarterly
basis and that BIA complete the updating process 45 days from date of
receipt. The Federal side proposed that BIA submit TIP updates to FHWA
on an annual basis only. The matter was resolved by providing clear
definitions for and distinctions between an annual IRRTIP update and an
IRRTIP amendment and including the time for BIA response. The final
rule includes the following provisions: BIA updates
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the IRRTIP annually so that it can be approved and distributed near the
beginning of the fiscal year; at any time during the fiscal year, until
July 15, the tribe may request an amendment to its approved IRRTIP;
and, if BIA receives amendments after July 15, the amendments are
incorporated into the following fiscal year IRRTIP update. In addition,
the final rule includes the following: BIA Regional Offices must now
review all information a tribe submits and provide a Regional response
within 45 days; and if the proposed TIP amendment includes the addition
of a project not listed on the current approved IRRTIP, the tribe must
submit the proposed amendment to FHWA for approval. The change
emphasizes tribes' annually updating the current three-year approved
IRRTIP, while also allowing tribes to amend IRRTIPs throughout the
year, if necessary.
The third area of disagreement resolved is ``Plans, Specifications,
and Estimate (PS&E) Approval Authority'' in subpart D (Sec. Sec.
170.480-481). The tribal and Federal sides disagreed on whether a tribe
may assume the review and approval responsibility for PS&Es. During
consideration of the public comments the tribal and Federal sides
agreed on how to allow tribes to assume the review and approval
authority. The final rule reflects the agreement in the PS&E sections
by providing that a tribe may review and approve PS&Es for IRR-funded
projects under certain circumstances where the function is included in
the tribe's self-determination contract or self-governance agreement,
or where the tribe is the owner of or is responsible for maintaining
the transportation facility. The final rule also provides that for BIA-
owned or tribally-owned transportation facilities, a tribe may assume
responsibility to review and approve PS&E packages under a self-
determination or self-governance agreement if the tribe provides
assurances that a licensed professional engineer will review and
certify that the PS&Es meet or exceed design health and safety
standards referenced in the regulation. Also, an additional licensed
professional engineer must perform a second level review at no less
than 95 percent completion of the PS&E package. For a facility
maintained by a public authority other than BIA or a tribe, in addition
to satisfying the requirements set forth above (with limited
exceptions), that other public authority will be provided an
opportunity to review and approve the PS&E package when it is at least
75 percent, but not more than 95 percent complete.
The fourth area of disagreement resolved is ``IRR Construction
Project Reports'' in subpart D (Sec. Sec. 170.485-489). The tribal and
Federal sides agreed, based on public comments, how to regulate IRR
construction project closeouts. The final rule provides clear roles and
responsibilities for all affected parties, i.e., the Secretary; the
tribe; BIA; and the facility owner, for: project inspection; closeout;
audit; acceptance, and, the requirements for each process.
The fifth area of disagreement resolved is ``Contents of Rights-of-
Way Documents'' in subpart D (Sec. Sec. 170.500-502). The issue is
whether 25 CFR part 169 is the appropriate authority for tribal IRR's
over Indian lands. While there was some agreement between the tribal
and Federal sides on the minimum content required in a right-of-way
document, there was disagreement over the applicability of 25 CFR part
169 without appropriate qualifications for tribal IRR's over Indian
lands. The tribal and Federal sides agreed, however, that relying on 25
CFR part 169 as the only reference for rights-of-way over Indian lands
was not appropriate since tribes are not required to obtain rights-of-
way when constructing IRRs across their own reservations. Both sides
agreed that new language is necessary to make the distinctions clear
about when 25 CFR applies to obtaining rights-of-way. However, adding
new language to 25 CFR part 169 requires public notice and comment, and
both sides agreed to delete the reference to 25 CFR part 169 in this
rule. Therefore, 25 CFR part 169 remains the applicable regulation in
certain circumstances for third parties' obtaining rights-of-way across
Indian lands, but it is not referenced in the final rule.
The sixth area of disagreement resolved is ``Content of Stewardship
Agreements'' in subpart F (Sec. Sec. 170.701-705). Because the tribal
and Federal sides agreed to revise the sections on PS&E package
approval in the final rule, the sections on Stewardship Agreements are
no longer applicable and we have deleted them.
Areas of Disagreement With No Committee Recommendation
The Committee was not able to resolve the key area of disagreement,
``General Issues'' in subpart A in the NPRM. The disagreement on
availability of funds between the tribal and Federal sides on this
subject is an issue of statutory interpretation. The tribal side's
position is that TEA-21 requires that all IRR Program funds be made
available under the requirements of the Indian Self-Determination and
Education Assistance Act (ISDEAA). The Federal version is that under
TEA-21, specifically section 1115(b) not all funds are required to be
made available, but all funds that are made available must be made
available in accordance with the requirements of ISDEAA. Many
commenters supported the tribal view, however, the tribal and Federal
Committee members were not able to resolve the disagreement over
statutory interpretation. We have retained the Federal questions and
answers for this item.
One of the key areas of disagreement, ``Self-Governance Compacts''
in subpart H was not resolved after consideration of the comments. The
disagreement centers around the right to assume individual projects or,
alternatively, an entire program comprised of individual projects.
Commingled in this issue of disagreement are issues of the 6 percent
Program Management and Oversight (PM&O) funding and issues of using
project funds for Federal responsibilities. The authority for the 6
percent PM&O funding is the language in the annual DOI Appropriations
Act. The authority for using project funds for Federal project
responsibilities is ISDEAA language which mandates that the Secretary
must assure health and safety in all projects. For the latter, the
Federal side's position is that certain requirements apply to projects
individually regardless of whether one or more projects are assumed
collectively as a program. Thus, the tribal side's approach of
eliminating Federal access to project funds to carry out project
responsibilities would jeopardize the Federal Government's obligation
to assure health and safety for individual construction projects. In
addition, the tribal side's view would eliminate the Secretary's
statutory right to use the 6 percent Program Management and Oversight
funding, as needed. In other words, whether projects are assumed
individually or collectively, the Federal side interprets ISDEAA as
requiring the Secretary to assure health and safety for all
construction. Many commenters supported the tribal view, but none
presented a legal right to ignore the Secretary's discretion to use up
to 6 percent of Program Management and Oversight funding or to ignore
the Secretary's right to use project funds to carry out the Secretary's
health and safety responsibilities under ISDEAA. Therefore, in the
final rule we have retained the Federal questions and answers for this
item.
Another key area of disagreement that was not resolved was
``Arbitration
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Provisions'' in subpart H (Sec. Sec. 170.941-952). Essentially, the
tribal side elects to chose Alternative Dispute Resolution (ADR)
procedures at their option. The Federal version is that ISDEAA and its
implementing regulations for Indian self-determination contracts and
self-governance agreements require that certain dispute procedures be
utilized, but that ADR may be used only when both parties agree. For
example, the Contract Disputes Act (CDA) is incorporated into ISDEAA
and requires its own procedures once a contract or agreement is
executed. While ADR may be used as an alternative, it is only
appropriate when both parties agree. The tribal position would allow
ADR unilaterally and solely at the tribe's option. Thus, with the
tribal side's approach, a dispute could remain perpetually unresolved
or as long as the tribe chooses. Many comments supported the tribal
view, however, no commenters presented a legal basis to depart from the
requirements of ISDEAA. We resolved this disagreement by retaining the
Federal questions and answers for this item, with a modification. The
modification adds ``for non-construction activities'' to Sec.
170.941(c) to make clear that the Model Contract section of ISDEAA does
not apply to construction activities.
Areas of Disagreement That Are Outside the Scope of Rulemaking
The Department found four of the Key Areas of Disagreement,
``Advance Funding'' in subpart E (Sec. Sec. 170.614-618),
``Contractibility and Compactibility of TEA-21 Programs'' in subpart E
(Sec. Sec. 170.600-636), ``Availability of Contract Support Funding''
in subpart E (Sec. Sec. 170.635-636), and ``Savings'' in subpart E
(Sec. 170.620) to be outside the scope of this rulemaking. The
discussion of these areas was included in the NPRM Preamble, however,
so that the public would be aware of the Committee's discussions on
these areas. We made no changes to the questions and answers pertaining
to these issues in the NPRM.
Discussion of Public Comments
The discussion of comments below is keyed to specific sections of
the NPRM, including subparts and subheadings. Only major, substantive
public comments are discussed below. In some instances, several
commenters are represented as one comment--having made similar or
identical comments. Grammatical changes, minor wording revisions, and
other purely style-oriented comments are not discussed; however,
changes to the final rule reflect such public comments. The section
number references are to the final rule.
Subpart A--Policies, Applicability, and Definitions
Comment: Change the term ``tribal contractor'' to ``tribal
government'' as this is a more appropriate term with respect to Indian
self-determination and tribal self-governance.
Response: A change throughout the final rule has been made to refer
to ``Indian tribe or tribal organization'' rather than tribal
contractor, where applicable, for consistency with the Indian Self-
Determination and Education Assistance Act (ISDEAA).
Comment: Language should be included that would indicate that
tribes be included in the development of policies, consistent with
Federal rules and regulations.
Response: Language was added to indicate that the development of
policies would be ``in consultation with Indian tribes.''
Comment: The rule should indicate that where different from ISDEAA,
the IRR Program regulations should serve to advance--rather than
retard--the Federal Government's policy of increasing tribal autonomy
and discretion of this program.
Response: Language has been added that ``Where this part differs
from provisions in the Indian Self-Determination and Education
Assistance Act of 1975 (ISDEAA), this part should advance the policy of
increasing tribal autonomy and discretion in program operation.''
(Sec. 170.2(b))
Comment: Tribes should only have to follow those IRR Program Policy
and Guidance manuals and directives which are consistent with the
regulations in this part and 25 CFR parts 900 and 1000. Tribes should
not have to abide by any unpublished requirements, guidelines, manuals,
or policy directives of the Secretary, unless otherwise required by
law.
Response: This change was made and is reflected in Sec. 170.3.
Comment: Delete the term ``Act'' and refer only to the Indian Self-
Determination and Education Act (ISDEAA).
Response: Reference is made to ISDEAA and ``Act'' is removed from
the text of the rule.
Comment: Delete the term ``Compact'' and refer instead to ``self-
governance agreement.''
Response: Reference is made to ``self-governance agreement'' only
and the term ``compact'' is deleted.
Comment: In the definition of the term ``construction,'' delete
``highway'' and add ``IRR Program transportation facility.''
Response: The reference to ``highway'' was changed to ``IRR Program
transportation facility.''
Comment: A construction contract is not a project. The term
``Construction Contract'' should be rewritten by inserting ``contract
for a'' and deleting ``or'' after ``self-determination.'' Items (1),
(2) and (3) are inaccurate and unneeded.
Response: Under ISDEAA a construction contract is defined as a
project. ``Contract for a'' was added and ``or'' was deleted after
``self-determination.'' Items (1), (2) and (3) remain in the rule to
clarify restrictions. (Sec. 170.5)
Comment: Delete the term ``Contract'' since this is unnecessary
when all types of contracts are otherwise explained by reference and
within the context of the rule.
Response: ``Or a procurement document issued under Federal or
tribal procurement acquisition regulations'' was added to the
definition of ``Contract.'' (Sec. 170.5)
Comment: The term ``governmental subdivision of a tribe'' should be
clearly (and narrowly) defined.
Response: The term ``governmental subdivision of a tribe'' is added
and defined to be ``the unit of a federally-recognized tribe which is
authorized to participate in the IRR Program activity on behalf of the
tribe.'' (Sec. 170.5)
Comment: Add the term ``Indian Reservation Road (IRR)'' to the
definitions section.
Response: The term ``Indian Reservation Road (IRR),'' as it is
defined under 23 U.S.C. 101(a), has been added to the definitions
section. (Sec. 170.5)
Comment: Add the term ``IRR Program Management Funds'' to the
definitions section.
Response: The term ``IRR Program Management and Oversight Funds''
has been added to the definitions in subpart A, Sec. 170.5 to mean
``those funds authorized by Congress in the annual appropriations acts
to pay the cost of performing IRR Program management activities.''
Comment: Delete the reference to ``up to 2 percent planning funds''
and substitute a reference to planning funds authorized under 23 U.S.C.
204(j) to cover any future legislative language.
Response: The reference to planning funds authorized under 23
U.S.C. 204(j) or ``tribal transportation planning funds'' was
substituted. ``Tribal transportation planning funds'' is defined in
subpart A, Sec. 170.5.
Comment: Within the term ``Rehabilitation,'' reference should be
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made to all work, rather than just to major work. Rehabilitation is not
confined only to bridge work.
Response: The term ``Rehabilitation'' references transportation
facilities, rather than only bridges, and does not refer only to major
work. (Sec. 170.5)
Comment: The term ``Transportation Improvement Program (TIP)''
should be better defined.
Response: The term ``TIP'' has been deleted and the definitions of
TTIP, IRRTIP, and STIP are included in the definitions in subpart A,
Sec. 170.5.
Subpart B--Indian Reservation Roads Program Policy and Eligibility
Consultation, Collaboration, Coordination
Comment: Properly identify the Community Development Administration
funds as being ``USDA Rural Development'' funds and reference the
appropriate authority under the ``Federal Transit Administration.''
Response: These references were made in the final rule. (Sec.
170.105)
Comment: The rule should spell out the obligations of the States,
MPOs, RPOs, and local governments to consult with tribes about planning
for tribal transportation projects, including regionally significant
projects.
Response: No change was made to the final rule as the obligations
of these parties are clearly referenced in 23 U.S.C. and are incumbent
upon all parties dealing with tribal transportation projects.
Eligible Uses of IRR Program Funds
Comment: Appendix A to subpart B should reflect the use of indirect
cost in relation to non-construction administrative functions and
equipment purchases in relation to administering the IRR Program
generally.
Response: The section was revised by adding ``other eligible
activities described in this part'' to A.37 and B.67 in appendix A to
subpart B and adding ``or in this part'' to the end of Sec.
170.116(f).
Comment: Provisions for cyclical maintenance activities should be
clarified and reference to appropriate work under this activity should
be illustrated.
Response: The rule has been changed to reflect ``routine
maintenance'' and reference to ``patching or marking pavement,'' and
``bridge joints, drainage, and other work'' has been deleted in its
entirety because maintaining bridge joints is an eligible activity and
drainage is included in appurtenances. (Sec. 170.116) Eligible
activities are adequately explained in appendix A to subpart B.
Comment: Under ISDEAA only BIA, not FHWA, may determine the
eligibility for a tribe's proposed new use of IRR Program funds.
Response: The rule reflects that BIA will approve requests for new
proposed uses of IRR Program funds for activities eligible under 25
U.S.C. and FHWA approves requests for new proposed uses of IRR Program
funds for activities eligible under 23 U.S.C.
Comment: Approvals for new proposed uses should be completed in a
more timely fashion--a response time of 45 days is recommended.
Response: The time line for written responses has been changed in
the rule from 60 days to 45 days. (Sec. 170.117)
Comment: Include construction of public roads to BIA schools as an
eligible activity.
Response: Eligibility of construction of public roads accessing
public schools is already included in the list of allowable uses of IRR
Program funds in appendix A of subpart B.
Use of IRR and Cultural Access Roads
Comment: Under Civil Justice Reform (Executive Order 12988),
concern was raised with a tribe's ability to close a cultural access
road. Further, under the Regulatory Flexibility Act, concern was raised
about the many other non-Indian landowners served by tribally-owned
roads who may be impacted by this rule.
Response: Section 170.120 is revised to reflect that IRR's must be
open and available for public use.
Comment: IRRs must be open and available to public use because they
are funded with public funds.
Response: The term ``generally'' was deleted from the answer.
(Sec. 170.120)
IRR Housing Access Roads
Comment: Define the terms ``housing cluster'' and ``Indian
community.''
Response: A definition for ``housing cluster'' was added as
follows: ``Housing cluster means three or more existing or proposed
housing units.'' Sec. 170.127(c) The term ``Indian community'' was
deleted because a housing cluster is necessarily part of an Indian
community. ``On public rights-of-way'' was also added after ``housing
streets'' in Sec. 170.128 in order to make the answer consistent with
Sec. 170.127(a) which references ``public road.''
Toll, Ferry and Airport Facilities
Comment: Clarify that a tribe operating the IRR Program under
ISDEAA may use 100 percent of IRR Program funds to provide for the
local match.
Response: In the final rule, the question relating to this issue
was changed to reflect the use of IRR Program funds to provide for the
local match. (Sec. 170.130)
Recreation, Tourism, and Trails
Comment: Clarification should be made that tribes may use IRR
Program funds for recreation, tourism, and trails.
Response: The clarification that tribes, tribal organizations,
tribal consortiums, and BIA may use the funds has been made in the
final rule. (Sec. 170.135).
Highway Safety Functions
Comment: Separate references should be made to (1) Highway Safety
Programs and (2) IRR Programs to be consistent with the remaining list
of Federal programs under which funds may be available for a tribe's
highway safety programs and reference other funding Congress may
authorize and appropriate.
Response: The final rule reflects the separate references and
references other funding from Congress. (Sec. 170.141)
Subpart C--Indian Reservation Roads Program Funding
Tribal Transportation Allocation Methodology (TTAM)
Comment: Clarify takedowns and the order in which they are
incorporated.
Response: The TTAM diagram was revised for clarification, the
descriptions made more concise, and the process better defined. (Sec.
170.200)
IRR High Priority Project (IRRHPP)
Comment: What activities cannot be funded with the IRRHPP?
Response: The final rule identifies activities that cannot be
funded with the IRRHPP. (Sec. 170.205(c))
Comment: Clarify what constitutes an emergency/disaster.
Response: Clarifications of emergency/disaster have been made.
(Sec. 170.206)
Comment: How are IRRHPP applications ranked?
Response: Ranking clarifications were made in the final rule.
(Sec. 170.209)
Comment: How are unspent funds handled?
Response: The final rule now states that upon completion of an
IRRHPP, funds that are reserved but not expended are to be recovered
and returned to the IRRHPP funding pool. (Sec. 170.213)
Comment: The schedule for IRRHPP proposals should be changed due to
concerns about the lack of time to get projects awarded and underway.
Response: The final rule reflects the schedule change. (Sec.
170.212)
[[Page 43095]]
Population Adjustment Factor
Comment: The rule should better define the data used for PAF.
Response: The final rule provides that the population figures are
those defined in Sec. 170.220.
Relative Need Distribution Factor
Note: Most of the sections on the RNDF were placed into appendix
C to subpart C.
Appendix C to Subpart C
Comment: Use of population figures developed under the Native
American Housing Assistance and Self-Determination Act (NAHASDA) should
not be qualified as ``interim'' and there should be a clarification
that the American Indian and Alaska Native Service Population NAHASDA
population figures will be used.
Response: The reference to ``interim'' was deleted and the
clarification was made. (Appendix C to subpart C)
Comment: Is there a limit on how many proposed roads can be added
to the inventory?
Response: The final rule reflects that there is no limit.
Comment: What is the definition of a proposed road and under what
conditions can it be added to the inventory?
Response: The definition of a proposed road is included in Sec.
170.5 and how it is added to the inventory is provided in Sec.
170.443.
Comment: The designation of a road should reference that the
national IRR Program bid tabulation data will be collected and input
into the Cost-to-Construct database by BIADOT.
Response: This reference was made in the final rule. (Appendix C to
subpart C)
Subpart D--Planning, Design, and Construction of Indian Reservation
Roads Program Facilities
Transportation Planning
Comment: Re-order the sections in a sequential order.
Response: The sections were re-ordered, beginning with
transportation planning through approval of the IRRTIP and providing
documentation to States for inclusion in planning documents.
Comment: Tribes may perform certain aspects of transportation
planning under ISDEAA and BIA must perform certain aspects.
Response: Those aspects of transportation planning that either a
tribe or BIA must perform and aspects that either BIA or a tribe may
perform have been clearly identified in the final rule. (Sec. Sec.
170.401-402)
Comment: Remove references to Regional Planning Organizations
(RPOs) and Metropolitan Planning Offices (MPOs) as they may give the
misconception that this rule creates rural planning offices.
Response: The use of RPO and MPO was clarified to eliminate the
misconception that ``Rural Planning Offices'' were being created.
``Other appropriate planning authorities'' was included in addition to
States and their political subdivisions.
Transportation Improvement Program
Comment: BIA should update IRRTIPs quarterly.
Response: The provision for annual updates was retained in the
final rule; however, the final rule provides that a tribe may request
an amendment to the approved IRRTIP until July 15 of each year.
(Sec. Sec. 170.425 and 170.427)
Comment: BIA should review proposed changes to an approved IRRTIP
within 45 days of receipt.
Response: BIA will review and respond to amendments within 45 days
of receipt. (Sec. 170.427)
Comment: The requirement for, development of, and uses of a long-
range transportation plan (LRTP) should be clarified and redundancies
within the sections eliminated.
Response: The final rule makes these clarifications through the use
of new questions and answers. Clarification of what comprises the LRTP
has been made to include only the health and safety concerns relating
to the transportation improvements; the inclusion of additional methods
for public involvement in the development of the LRTP in allowing the
tribe or BIA to post notices in accordance with local practice;
clarifications to illustrate the requirements of a properly convened
public meeting and its statutory notice. In addition, the requirement
for the use of a consultant to approve the tribal LRTP has been
deleted.
Public Hearings
Comment: Clarify how BIA or a tribe determines the need for a
public hearing and what funds are available for the hearing.
Response: The final rule clarifies how the need for a public
hearing is determined and what funds are available. (Sec. Sec.
170.435-436)
Comment: When a public meeting is held, a courtesy copy of the
notice should be provided to the affected tribe and/or the BIA Regional
Office.
Response: This recommendation has been accepted in the final rule.
(Sec. 170.438)
Comment: Environmental and/or archaeological clearances should be
included in the public hearing process.
Response: These clearances are referenced in the final rule. (Sec.
170.439)
Comment: Are there any distinctions in funding for funding public
hearings for IRR planning and funding for public hearings for projects?
Response: Transportation planning public hearings are funded by
tribal transportation planning funds or IRR Program construction funds
and project public hearings are funded by construction funds. (Sec.
170.436)
Comment: Clarifications need to be made with respect to when the
public must be notified before project activities begin and the
responsibility BIA and/or the tribe must bear to provide such notice.
Response: The final rule clarifies public notice requirements for
both the tribe and BIA. (Sec. Sec. 170.438-441)
IRR Inventory
Comment: Move sections on technical aspects of the inventory from
subpart C to subpart D.
Response: The sections were moved from subpart C to subpart D.
Comment: References to Atlas maps and functional classifications
are not required, too technical, and not important to the intent of
this section.
Response: These references have been deleted.
Comment: The IRR inventory is a comprehensive database--not a list
of information.
Response: The final rule indicates that the inventory is a
comprehensive database. (Sec. Sec. 170.5 and 170.442)
Comment: Delete the section relating to the accuracy of the
database because it addressed only roads and was not relevant to other
transportation facilities.
Response: The section was deleted.
Comment: The surface type section is only for coding purposes in
the inventory and should be removed from this section.
Response: The surface type section has been removed.
Comment: It should be made clear that the IRR Inventory is used for
other purposes in addition to the Relative Need Distribution Factor.
Response: The use of the IRR inventory has been clarified. (Sec.
170.442)
Comment: The section regarding ``accuracy provisions'' for all
eligible transportation facilities is confusing and adds nothing
substantive to the understanding of eligible transportation facilities.
Recommend deleting this section.
Response: This section was deleted in its entirety.
[[Page 43096]]
Comment: The functional classification system categories used by
the States and those used in the IRR Program should be consistent.
Response: We have included the complete definitions that meet the
simplified approach in appendix C of subpart C. Therefore, we have
deleted this section and all other sections related to functional
classification and surface type in subpart D.
Review and Approval of Plans, Specifications, and Estimates (PS&Es)
Comment: Tribes should be able to assume review and approval
authority for PS&Es for IRR-funded projects under a self-determination
contract or a self-governance agreement.
Response: We have created a new subheading, Review and Approval of
Plans, Specifications, and Estimates. The final rule includes
provisions that a tribe may perform this task where the function is
included in the tribe's self-determination contract or self-governance
agreement, or where the tribe is the owner of or is responsible for
maintaining the transportation facility. In addition, for BIA-owned or
tribally-owned transportation facilities, a tribe may assume
responsibility to review and approve PS&E packages under a self-
determination contract or self-governance agreement so long as a tribe
provides assurances that a licensed professional engineer will review
and certify that the PS&Es meet or exceed design, health and safety
standards referenced in these regulations. For a facility maintained by
a public authority other than BIA or a tribe, a tribe must satisfy
these requirements and provide the public authority an opportunity to
review and approve PS&E packages. The final rule reflects the tribes'
ability to ensure health and safety, inclusion of health and safety
standards in self-determination contracts and self-governance
agreements, and appropriate coordination with relevant authorities in
the approval process. (Sec. Sec. 170.460-463)
Comment: Some items listed as part of a PS&E package are
supplemental, are not part of the package, and should be deleted.
Response: The final rule states which items are supplemental to a
PS&E package. (Sec. 170.460)
Construction and Construction Monitoring [and Rights-of-Way]
Comment: Delete ``where feasible'' and replace ``consultation''
with ``coordination.''
Response: In the final rule ``where feasible'' was deleted and
``coordination'' was substituted for ``consultation.'' (Sec. 170.471)
Comment: References to 25 CFR part 169, ``rights-of-way,'' pertain
to third parties and not to tribes building IRRs on their reservations.
Response: References to ``Rights-of-Way'' have been removed from
the final rule although 25 CFR part 169 remains the authority for third
parties on Indian lands.
Comment: Who has final acceptance responsibility of the IRR
Construction Project Report?
Response: In the rewrite of the project closeout and audits
sections (which have been combined), we indicate that the facility
owner has final acceptance on the project and report. (Sec. 170.473)
Appendix A to Subpart D
Comment: This Appendix should be characterized to acknowledge the
IRR Program's responsibilities to effectively manage a broad range of
cultural resources of which archaeological resources are only a part.
Response: The Appendix has been re-titled as ``Cultural Resource
and Environmental Requirements for the IRR Program.''
Comment: Reference should be made to other implementing
regulations, e.g., the Native American Graves Protection and
Repatriation Act, the National Historic Preservation Act, and the
Archaeological Resource Protection Act.
Response: We have added ``other applicable Federal laws and
regulations'' to encompass these (and other) implementing regulations,
as appropriate.
Appendix B to Subpart D
Comment: Add ``AASHTO Guidelines of Geometric Design of Very Low-
Volume Local Roads'' to the list of Design Standards for the IRR
Program.
Response: This reference has been added to appendix B to subpart D.
Subpart E--Service Delivery for Indian Reservation Roads
Funding Process
Comment: The term ``TTAM'' should replace ``IRR Relative Need
Formula'' to be consistent with subpart C.
Response: The term ``TTAM'' has been appropriately referenced in
this subpart.
Comment: Publishing a notice of availability of funds in the
Federal Register is an undue burden on the Federal Government and
presents conflicts with other time lines in this rule.
Response: We have revised this responsibility in the final rule by
separating items BIA will publish in the Federal Register and the items
that regional offices will provide to tribes upon publication of the
notice of availability of funds. This will allow BIA to publish the
amount of funding available in a manner that does not conflict with
other time lines established in this rule and reduces the
administrative burden. (Sec. 170.600)
Miscellaneous Provisions
Comment: Add a provision for consulting with a tribe before using a
force account even after a tribe declines a self-determination contract
or self-governance agreement.
Response: Because divulging bidding information is contrary to the
Federal procurement regulations, we simply added more complete
information about force accounts in the final rule. (Sec. 170.605)
Contracts and Agreements Under ISDEAA
Comment: What protections are there if the tribe fails to
substantially perform the contracted work?
Response: We have clarified the final rule to indicate the
sanctions (and protections) available when a tribe fails to
substantially perform the contracted work. (Sec. 170.621)
Subpart F--Program Oversight and Accountability
Comment: Some sections of this subpart should be removed because
they more appropriately deal with PS&Es and not program stewardship.
Response: The section on PS&Es has been revised to include the
concerns that were referenced in this subpart. Consequently, their
reference has been deleted from subpart F.
Subpart G--BIA Road Maintenance
Comment: Change the term ``Motorized Trails'' to ``vehicle
trails.''
Response: We have changed the reference to ``motorized vehicle
trails.'' (Sec. 170.803)
Comment: Include a provision that the Secretary provide to the
affected tribe a draft copy of the findings that an IRR transportation
facility is not being maintained due to insufficient funding prior to
providing the report to Congress under 23 U.S.C. 204.
Response: The final rule provides that if BIA determines that an
IRR transportation facility is not being maintained under IRR TFMMS
standards due to insufficient funding, under 23 U.S.C. 204, BIA must
continue to request annual funding for road maintenance programs on
Indian reservations. (Sec. 170.811). In addition,
[[Page 43097]]
the report is provided to the Secretary of Transportation not to
Congress.
Comment: The circumstances surrounding a temporary closure of or
restricted access to an IRR transportation facility should be clarified
to include private landowners in the decision-making process.
Response: The final rule includes consultation with applicable
private landowners in addition to the tribe and also indicates that
consultation is not required whenever the conditions involve immediate
safety and life-threatening situations. (Sec. 170.813)
Comment: Include provisions ``including runway lighting'' and
``boat ramps.''
Response: These references have been added to the final rule.
(Sec. 170.803)
Comment: Provision should be made for catastrophic failure or
natural disaster.
Response: These provisions have been added to the final rule in
discussion of the circumstances when closure of an IRR transportation
facility is warranted. (Sec. 170.813)
Comment: Recommended deleting from the answer the remainder of the
sentence after the words ``local governments'' in Sec. 170.822.
Response: The entire section was deleted.
Comment: Recommended moving Sec. Sec. 170.816-820 on bridge
inspections from subpart G to subpart D since bridge inspections are
funded from the IRR Program rather than the Road Maintenance Program.
Response: The sections on bridge inspections have been moved to
Subpart D for clarity. We added a subheading for IRR bridge inspections
under subpart D. (Sec. Sec. 170.504-507)
Subpart H--Miscellaneous
Tribal Transportation Departments
Comment: Noted that the provision in Sec. 170.932 conflicts with a
U.S. Supreme Court decision.
Response: The section has been modified to reflect recent Federal
case decisions.
Comment: Switch the order of Sec. 170.938 and Sec. 170.939 for
clarity.
Response: These sections are now Sec. 170.931 and Sec. 170.932.
We also added ``see appendix A, subpart B'' after ``activities'' in
Sec. 170.931.
Comment: It should be made clear that IRR Program funds can be used
for transportation planning and administration.
Response: This clarification has been made in the final rule.
(Sec. 170.931)
Resolving Disputes
Comment: The tribes should have the option of choosing the
Alternative Dispute Resolution Act (ADR) to settle disputes arising out
of their self-determination contracts or self-governance agreements.
Response: The Contract Disputes Act is incorporated by reference
into ISDEAA and applies to disputes after contracts or agreements are
awarded. We clarified that the Contract Disputes Act is available for
dispute resolution techniques or procedures for construction and the
Model Contract is available for non-construction by moving ``and the
implementing regulations'' from the end of the sentence to follow
``ISDEAA'' and noting that ``non-construction activities'' applies only
to the Model Contract. However, for non-construction activities under
the Model Contract, alternative dispute resolution options are
available--including the ADR. Section 170.934 was revised because it
was ambiguous as written.
II. Summary of Regulations
Subpart A--Policies, Applicability, and Definitions
This subpart outlines the authority under which this rule is
established. The purpose and scope of this rule is defined with respect
to 23 U.S.C. 202(d) and 204 and the IRR Program and this subpart
provides interpretation of the language used throughout 23 U.S.C.
The subpart further outlines the policies, guidance manuals,
directives, and procedures that will govern the IRR Program under
direct service, self-determination contracts, and self-governance
agreements and also includes definitions used throughout the rule.
Subpart B--Indian Reservation Roads Program Policy and Eligibility
This subpart:
Explains the Federal, tribal, state, and local governments
coordination, collaboration, and consultation responsibilities and how
these efforts can effectively assist the tribal governments in meeting
their transportation needs;
Lists both the eligible and non-eligible activities for
IRR Program funding;
Discusses the use of all eligible Indian Reservations
Roads and other transportation facilities eligible for construction,
including cultural access roads, housing access roads, toll roads,
recreation, tourism, trails, airport access roads, transit facilities,
and seasonal transportation routes;
Covers the highway safety aspects of the IRR Program and
those activities, functions, and equipment that may be eligible for
funding under this program;
In addition, this subpart also includes:
Transportation research activities;
Education and training opportunities available to tribes
and BIA through Local Technical Assistance Programs and other Federal,
state, and local organizations; and
How IRR Program funds may be used for education and
training.
Subpart C--Indian Reservation Roads Program Funding
This subpart covers the Tribal Transportation Allocation
Methodology and the Relative Need Distribution Factor used to
distribute IRR Program funds, including:
An overview of the allocation of IRR Program Funds;
The Transportation Planning Program (under 23 U.S.C.
204(j));
The Relative Need Distribution Factor for IRR
Construction;
The IRR High Priority Projects Program (IRRHPP); and
The Population Adjustment Factor (PAF).
It also covers the following factors used in the Relative Need
Distribution Factor:
Cost-to-Construct;
Vehicle Miles Traveled; and
Population.
This subpart also includes:
General Data Appeals;
The IRR Inventory; and
Long-Range Transportation Planning.
Subpart D--Planning, Design, and Construction of Indian Reservation
Roads Program Facilities
This subpart discusses:
The transportation planning responsibilities and
requirements consistent with 23 U.S.C. 134 and 135;
Funding sources for transportation planning;
The requirements for developing a Transportation
Improvement Program and Long-Range Transportation Plans including the
requirements for public hearings and input into their development.
This subpart also:
Defines the IRR inventory, its components, and how it is
developed and used;
Includes the environmental and archaeological requirements
applicable to projects under this program and whether IRR Program funds
can be used for these requirements;
Outlines design, construction, and construction monitoring
standards;
[[Page 43098]]
Includes closeout procedures for IRR Program construction
projects and identifies the roles of and the responsible entities for
such procedures;
Discusses the processes and procedures used at the various
office levels of the IRR Program to ensure that the program is being
carried under these regulations and the governing laws; and
Outlines the management systems that BIA must develop and
maintain for oversight and management of the IRR Program.
Subpart E--Service Delivery for Indian Reservation Roads
This subpart tells how ISDEAA can be used:
To contract for programs under the IRR Program;
In self-governance agreements;
In consortium contracts and agreements;
In multiple-year agreements;
For rights of first refusal;
In applicability of advance payments for ISDEAA contracts
and agreements;
For contingency funds; and
For cost overruns.
This subpart also covers:
Indian preference versus local preference in contracting;
Contract enforcement;
The applicability of the Buy Indian Act and the Buy
American Act to the IRR Program;
The applicability of the Federal Acquisition Regulations
and Davis Bacon wage rates with respect to self-determination contracts
or self-governance agreements;
Force account work;
Waivers of regulations;
The Federal Tort Claims Act;
Technical assistance available to tribes planning to
contract for IRR Program activities and/or functions; and
Savings.
Subpart F--Program Oversight and Accountability
This subpart discusses:
Oversight roles and responsibilities for the IRR Program;
Memoranda of Understanding; and
Program accountability.
Subpart G--BIA Road Maintenance
This subpart covers:
BIA Transportation Facility Maintenance Program and its
eligible activities and facilities including roads, bridges, airports,
and others;
Maintenance funding;
Facility ownership;
Maintenance responsibilities to the traveling public;
Maintenance management system requirements;
Maintenance standards;
Mandated bridge inspection requirements and standards; and
Provisions for emergency maintenance.
Subpart H--Miscellaneous
This subpart provides information on:
The transport of hazardous and nuclear waste;
Indian preference and tribal employment rights;
The applicability of tribal taxes and fees for IRR
Projects;
The Emergency Relief Program;
Establishing and operating tribal transportation
departments and the eligible activities and/or functions for which
these organizations can contract;
Tribal regulations of oversize and overweight vehicles;
Reporting requirements;
Tribal employment rights;
Alternative dispute resolution procedures to resolve IRR
program disputes; and
Research activities available under the IRR Program.
III. Procedural Requirements
A. Regulatory Planning and Review (Executive Order 12866)
This final rule is a significant regulatory action requiring review
by the Office of Management and Budget. The Office of Management and
Budget has reviewed this final rule under Executive Order 12866. This
final rule will have budgetary effects of entitlement, grants, user
fees, or loan programs or the rights or obligations of their
recipients. Funding for the IRR Program in fiscal year 2003 is $275
million and is expected to increase in future years. It is anticipated
that the IRR Program will receive more than $2 billion dollars over the
next six years with the passage of a new Transportation authorization.
The DOT, FHWA, allocates funds to DOI, BIA. BIA distributes the funds
to each of its 12 regions based on the existing funding formula for the
benefit of tribes in each region. This final rule will not adversely
affect in a material way the economy, productivity, competition, jobs,
the environment, public health or safety, or state, local, or tribal
governments or communities. This final rule enables Indian tribes to be
more directly involved in the care, upgrade, safety, and improvement of
their transportation facilities. This rule sets forth policies and
guidelines under which FHWA, BIA, and tribes that contract with BIA
conduct the IRR Program. It also includes a funding methodology for
distributing IRR Program funds. It covers current practices of DOT and
DOI. DOT representatives have participated in this negotiated
rulemaking, concur in all consensus items, and have provided comments
on all disputed items. This final rule raises novel legal or policy
issues that are contained in the Disagreement Items section of the
Preamble. It also provides policy and guidance under the Indian Self-
Determination and Education Assistance Act, Pub. L. 93-638, and under
the Transportation Equity Act for the 21st Century, Pub. L. 105-178, as
they relate to the IRR Program which has been in effect since 1983.
B. Regulatory Flexibility Act
DOI certifies that this document will not have a significant
economic effect on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Indian tribes are
not considered to be small entities for purposes of this Act.
C. Small Business Regulatory Enforcement Fairness Act (SBREFA)
This final rule is a major rule under the Small Business Regulatory
Enforcement Fairness Act (5 U.S.C. 804(2)) because it has an annual
effect on the economy of $100 million or more. The yearly amount of IRR
Program funds is approximately $275 million.
This final rule will not cause a major increase in costs or prices
for consumers, individual industries, Federal, state, or local
government agencies, or geographic regions. Actions under this final
rule will distribute Federal funds to Indian tribal governments and
tribal organizations for transportation planning, construction, and
maintenance.
This rule does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign based enterprises.
D. Unfunded Mandates Reform Act
This final rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22,
1995, 109 Stat. 48). This final rule will not result in the expenditure
by State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year (2 U.S.C.
1532).
E. Takings Implication Assessment (Executive Order 12630)
This final rule does not have significant takings implications.
This final rule does not pertain to taking of
[[Page 43099]]
private property interests, nor does it impact private property.
F. Federalism (Executive Order 12612)
This final rule does not have significant federalism effects
because it pertains solely to Federal-tribal relations and will not
interfere with the roles, rights, and responsibilities of States.
G. Civil Justice Reform (Executive Order 12988)
This final rule does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988.
H. Paperwork Reduction Act
This rulemaking requires an information collection from 10 or more
parties and a submission under the Paperwork Reduction Act of 1995,
Pub. L. 104-13, is required. Accordingly, The Department prepared an
OMB form 83-I for review and approval by OMB. Having reviewed the
submissions of the Department with respect to the burden hours of each
part of this rulemaking, along with any comments that were submitted by
the reviewing public, OMB has approved the information collection
requirements contained in this rulemaking and has assigned OMB control
number 1076-0161. The expiration date of this control number is October
31, 2005. This approval by OMB was necessitated by the requirements
inherent in the revisions to 25 CFR part 170. Revisions to part 170 are
in furtherance of a Departmental initiative to implement the
Transportation Equity Act for the 21st Century (TEA-21) and set
policies and procedures governing the IRR Program. The information
provided through information collection requirements is used by DOI,
BIA, to determine how funds appropriated by Congress under TEA-21 will
be allocated to various tribal governments in implementing the IRR
program. The information is particularly used in assisting tribal
governments to meet reporting and application requirements for their
participation in the IRR program, and is reflected in subparts C or D
of this rulemaking. The total estimated burden hours for this
information collection is 31,470 hours and is required to obtain or
retain a benefit under 25 CFR part 170 pursuant to 5 CFR 1320.9. The
public is invited to make any additional comments it may have
concerning the accuracy of this burden estimate and any suggestions for
reducing such burden.
I. National Environmental Policy Act
DOI has determined that this rule does not constitute a major
Federal action significantly affecting the quality of the human
environment and that no detailed statement is required under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321). Specific
projects under the IRR Program will require NEPA review through an
Environmental Assessment or Environmental Impact Statement.
J. Consultation and Coordination With Indian Tribal Governments
(Executive Order 13175)
Pursuant to Executive Order 13175 of November 6, 2000, Consultation
and Coordination with Indian Tribal Governments, we have consulted with
tribal representatives throughout the process of developing this rule
through negotiated rulemaking. We conducted consultation at the
Negotiated Rulemaking Committee's 23 meetings, accepted oral and
written comments at all Committee meetings, maintained Committee
information on the IRR Web site, provided periodic newsletters and
other mailings, provided updates at intertribal and other Indian
Reservation Roads transportation-related meetings, and sent periodic
letters to tribal leaders. As part of the negotiated rulemaking process
with tribes, we reviewed and considered public comments to the NPRM
with the Negotiated Rulemaking Committee to make recommendations to the
Secretary for the final rule. We have evaluated any potential effects
on federally-recognized Indian tribes and have determined that there
are no potential adverse effects. The final rule expands tribal
participation in and responsibilities for various transportation-
related activities of the IRR program. We consulted with tribal
governments and tribal organizations as part of the negotiated
rulemaking process throughout the comment period after publication of
this final rule.
IV. Reference Tables
The following tables are provided to allow the reader to locate
specific matters of interest under particular subheadings from the NPRM
and determine if those sections have been relocated in the final rule.
----------------------------------------------------------------------------------------------------------------
NPRM subpart NPRM subheading NPRM section Nos.
----------------------------------------------------------------------------------------------------------------
Subpart A............................... General Provisions and Sec. 170.1-Sec. 170.6
Definitions.
Subpart B............................... Indian Reservation Roads
Program Policy and Eligibility.
Consultation, Collaboration, Sec. 170.100-Sec. 170.112
Coordination.
Eligibility for IRR Funding.... Sec. 170.114-Sec. 170.116
Use of IRR and Cultural Access Sec. 170.120-Sec. 170.126
Roads.
Seasonal Transportation Routes. Sec. 170.130-Sec. 170.138
IRR Housing Access and Toll Sec. 170.140-Sec. 170.148
Roads.
Recreation, Tourism, Trails.... Sec. 170.150-Sec. 170.154
Highway Safety Functions....... Sec. 170.155-Sec. 170.159
Non-Road Transportation........ Sec. 170.160-Sec. 170.162
Transit Facilities............. Sec. 170.163-Sec. 170.170
IRR Program Coordinating Sec. 170.171-Sec. 170.177
Committee.
Indian Local Technical Sec. 170.178-Sec. 170.192
Assistance Program (LTAP).
LTAP Sponsored Education and Sec. 170.193-Sec. 170.194
Training Opportunities.
Subpart C............................... Indian Reservation Roads Sec. 170.225-Sec. 170.232
Program Funding.
Tribal Transportation Sec. 170.235-Sec. 170.236
Allocation Methodology for IRR
Construction.
IRR High Priority Projects Sec. 170.245-Sec. 170.257
(IRRHPP).
Population Adjustment Factor Sec. 170.263-Sec. 170.267
(PAF).
Relative Need Distribution Sec. 170.270-Sec. 170.282
Factor.
General Data Appeals........... Sec. 170.285-Sec. 170.288
IRR Inventory and Long-Range Sec. 170.290-Sec. 170.299
Transportation Planning (LRTP).
Long-Range Transportation Sec. 170.300-Sec. 170.303
Planning.
Flexible Financing............. Sec. 170.350-Sec. 170.357
Subpart D............................... Planning, Design, and
Construction of Indian
Reservation Roads Program
Facilities.
Transportation Planning........ Sec. 170.400-Sec. 170.436
[[Page 43100]]
Public Hearings................ Sec. 170.437-Sec. 170.445
IRR Inventory.................. Sec. 170.446-Sec. 170.460
Environment and Archeology..... Sec. 170.461-Sec. 170.462
Design......................... Sec. 170.464-Sec. 170.469
Construction and Construction Sec. 170.472-Sec. 170.502
Monitoring and Rights-of-Way.
Program Reviews and Management Sec. 170.510-Sec. 170.516
Systems.
Subpart E............................... Service Delivery for Indian Sec. 170.600-Sec. 170.636
Reservation Roads.
Subpart F............................... Program Oversight and Sec. 170.700-Sec. 170.708
Accountability.
Subpart G............................... BIA Road Maintenance........... Sec. 170.800-Sec. 170.823
Subpart H............................... Miscellaneous..................
Hazardous and Nuclear Waste Sec. 170.900-Sec. 170.907
Transportation.
Reporting Requirements and Sec. 170.910-Sec. 170.923
Indian Preference.
Emergency Relief............... Sec. 170.924-Sec. 170.932
Tribal Transportation Sec. 170.936-Sec. 170.940
Departments.
Arbitration Provisions......... Sec. 170.941-Sec. 170.943
Other Miscellaneous Provisions. Sec. 170.950-Sec. 170.952
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List of Subjects in 25 CFR Part 170
Highways and roads, Indians--lands.
Dated: February 26, 2004.
David Anderson,
Assistant Secretary--Indian Affairs.
Editorial Note: This document was received in the Office of the
Federal Register on July 9, 2004.
0
For the reasons stated in the preamble, the Department of the Interior,
Bureau of Indian Affairs, revises part 170 in title 25 of the Code of
Federal Regulations as follows:
PART 170--INDIAN RESERVATION ROADS PROGRAM
Subpart A--Policies, Applicability, and Definitions
Sec.
170.1 What does this part do?
170.2 What is the IRR Program and BIA Road Maintenance Program
policy?
170.3 When do other requirements apply to the IRR Program?
170.4 What is the effect of this part on existing tribal rights?
170.5 What definitions apply to this part?
170.6 Information collection.
Subpart B--Indian Reservation Roads Program Policy and Eligibility
Consultation, Collaboration, Coordination
170.100 What do the terms ``consultation, collaboration, and
coordination'' mean?
170.101 What is the IRR Program consultation and coordination
policy?
170.102 How do the Departments consult, collaborate, and coordinate
with tribal governments?
170.103 What goals and principles guide the Secretaries?
170.104 Must the Secretary consult with tribal governments before
obligating IRR Program funds?
170.105 Are funds available for consultation, collaboration, and
coordination activities?
170.106 When must State governments consult with tribes?
170.107 Should planning organizations and local governments consult
with tribes when planning for transportation projects?
170.108 Should Indian tribes and BIA consult with States' planning
organizations and local governments in the development of their
IRRTIP?
170.109 How do the Secretaries prevent discrimination or adverse
impacts?
170.110 How can State and local governments prevent discrimination
or adverse impacts?
170.111 What can a tribe do if discrimination or adverse impacts
occur?
Eligible Uses of IRR Program Funds
170.115 What activities may be funded with IRR Program funds?
170.116 What activities are not eligible for IRR Program funding?
170.117 How can a tribe determine whether a new use of funds is
allowable?
Use of IRR and Cultural Access Roads
170.120 What restrictions apply to the use of an Indian Reservation
Road?
170.121 What is a cultural access road?
170.122 Can a tribe close a cultural access road?
Seasonal Transportation Routes
170.123 What are seasonal transportation routes?
170.124 Does the IRR Program cover seasonal transportation routes?
IRR Housing Access Roads
170.127 What terms apply to access roads?
170.128 Are housing access roads and housing streets eligible for
IRR Program funding?
Toll, Ferry and Airport Facilities
170.130 How can tribes use Federal highway funds for toll and ferry
facilities?
170.131 How can a tribe find out more about designing and operating
a toll facility?
170.132 When can a tribe use IRR Program funds for airport
facilities?
Recreation, Tourism and Trails
170.135 Can a tribe use Federal funds for its recreation, tourism,
and trails program?
170.136 How can a tribe obtain funds?
170.137 What types of activities can a recreation, tourism, and
trails program include?
170.138 Can roads be built in roadless and wild areas?
Highway Safety Functions
170.141 What Federal funds are available for a tribe's highway
safety activities?
170.142 How can tribes obtain funds to perform highway safety
projects?
170.143 How can IRR Program funds be used for highway safety?
170.144 What are eligible highway safety projects?
170.145 Are other funds available for a tribe's highway safety
efforts?
Transit Facilities
170.148 What is a tribal transit program?
170.149 How do tribes identify transit needs?
170.150 What Federal funds are available for a tribe's transit
program?
170.151 May a tribe or BIA use IRR Program funds as matching funds?
170.152 What transit facilities and activities are eligible for IRR
Program funding?
IRR Program Coordinating Committee
170.155 What is the IRR Program Coordinating Committee?
170.156 What are the IRR Program Coordinating Committee's
responsibilities?
170.157 What is the IRR Program Coordinating Committee's role in the
funding process?
170.158 How does the IRR Program Coordinating Committee conduct
business?
Indian Local Technical Assistance Program
170.161 What is the Indian Local Technical Assistance Program?
170.162 How is the Indian LTAP funded?
170.163 How are Indian LTAP recipients selected?
170.164 How are tribal representatives nominated and chosen for the
selection committee?
170.165 May a tribe enter into a contract or agreement for Indian
LTAP funds?
170.166 What services do Indian LTAP centers provide?
170.167 How does a tribe obtain services from an Indian LTAP center?
170.168 Do Indian LTAP centers offer services similar to those of
State LTAPs?
170.169 What can a tribe do if Indian LTAP services are
unsatisfactory?
170.170 How are Indian LTAP centers managed?
170.171 How are tribal advisory technical panel members selected?
Indian LTAP-Sponsored Education and Training Opportunities
170.175 What Indian LTAP-sponsored transportation training and
educational opportunities exist?
170.176 Where can tribes get scholarships and tuition for Indian
LTAP-sponsored education and training?
Appendix A to Subpart B--Allowable Uses of IRR Program Funds
Appendix B to Subpart B--Sources of Tribal Transportation Training
and Education Opportunities
Subpart C--Indian Reservation Roads Program Funding
Tribal Transportation Allocation Methodology (TTAM)
170.200 How does BIA allocate IRR Program funds?
170.201 How does BIA allocate and distribute tribal transportation
planning funds?
170.202 Does the Relative Need Distribution Factor allocate funding
among tribes?
IRR High Priority Project (IRRHPP)
170.205 What is an IRR High Priority Project (IRRHPP)?
170.206 How is an emergency/disaster defined?
170.207 What is the intent of IRRHPP emergency/disaster funding?
170.208 What funding is available for IRRHPP?
170.209 How will IRRHPP applications be ranked and funded?
170.210 How may a tribe apply for IRRHPP?
170.211 What is the IRRHPP Funding Priority List?
170.212 What is the timeline for IRRHPPs?
170.213 How long are IRRHPP funds available for a project?
170.214 How does award of an emergency/disaster project affect
projects on the FPL?
Population Adjustment Factor
170.220 What is the Population Adjustment Factor?
[[Page 43103]]
170.221 What funding is available for distribution using the PAF?
Relative Need Distribution Factor
170.223 What is the Relative Need Distribution Factor (RNDF)?
IRR Inventory and Long-Range Transportation Planning (LRTP)
170.225 How does the LRTP process relate to the IRR Inventory?
170.226 How will this part affect the IRR Inventory?
170.227 How does BIA develop and use the IRR Inventory?
170.228 Are all facilities included in the IRR Inventory used to
calculate CTC?
General Data Appeals
170.231 May a tribe challenge the data BIA uses in the RNDF?
170.232 How does a tribe appeal a disapproval from the BIA Regional
Director?
Flexible Financing
170.300 May tribes use flexible financing to finance IRR
transportation projects?
170.301 Can a tribe use IRR Program funds to leverage other funds or
pay back loans?
170.302 Can BIA regional offices borrow IRR Program funds from each
other?
170.303 Can a tribe apply for loans or credit from a State
infrastructure bank?
Appendix A to Subpart C--IRR High Priority Project Scoring Matrix
Appendix B to Subpart C--Population Adjustment Factor
Appendix C to Subpart C--Relative Need Distribution Factor
Appendix D to Subpart C--Cost to Construct
Subpart D--Planning, Design, and Construction of Indian Reservation
Roads Program Facilities
Transportation Planning
170.400 What is the purpose of transportation planning?
170.401 What is BIA's role in transportation planning?
170.402 What is the tribal role in transportation planning?
170.403 What IRR Program funds can be used for transportation
planning?
170.404 What happens when a tribe uses its IRR Program construction
funds for transportation planning?
170.405 Can tribal transportation planning funds be used for road
construction and other projects?
170.406 How must tribes use planning funds?
170.407 What happens to unobligated planning funds?
Long-Range Transportation Planning
170.410 What is the purpose of tribal long-range transportation
planning?
170.411 What can a long-range transportation plan include?
170.412 How is the tribal IRR long-range transportation plan
developed and approved?
170.413 What is the public role in developing the long-range
transportation plan?
170.414 How is the tribal long-range transportation plan used and
updated?
170.415 What is pre-project planning?
Transportation Improvement Program
170.420 What is the tribal priority list?
170.421 What is the Tribal Transportation Improvement Program
(TTIP)?
170.422 What is the IRR Transportation Improvement Program (IRRTIP)?
170.423 How are projects placed on the IRRTIP?
170.424 How does the public participate in developing the IRRTIP?
170.425 How does BIA update the IRRTIP?
170.426 What is the approval process for the IRRTIP?
170.427 How may an IRRTIP be amended?
170.428 How is the State Transportation Improvement Program related
to the IRRTIP?
Public Hearings
170.435 How does BIA or the tribe determine the need for a public
hearing?
170.436 How are public hearings for IRR planning and projects
funded?
170.437 How must BIA or a tribe inform the public when no hearing is
held?
170.438 How must BIA or a tribe inform the public when a hearing is
held?
170.439 How is a public hearing conducted?
170.440 How can the public learn the results of a public hearing?
170.441 Can a decision resulting from a hearing be appealed?
IRR Inventory
170.442 What is the IRR Inventory?
170.443 How can a tribe list a proposed transportation facility in
the IRR Inventory?
170.444 How is the IRR Inventory updated?
170.445 What is a strip map?
Environmental and Archeological Requirements
170.450 What archeological and environmental requirements must the
IRR Program meet?
170.451 Can IRR Program funds be used for archeological and
environmental compliance?
Design
170.454 What design standards are used in the IRR Program?
170.455 How are design standards used in IRR projects?
170.456 When can a tribe request an exception from the design
standards?
170.457 Can a tribe appeal a denial?
Review and Approval of Plans, Specifications, and Estimates
170.460 What must a project package include?
170.461 May a tribe approve plans, specifications, and estimates?
170.462 When may a self-determination contract or self-governance
agreement include PS&E review and approval?
170.463 What should the Secretary do if a design deficiency is
identified?
Construction and Construction Monitoring
170.470 What are the IRR construction standards ?
170.471 How are projects administered?
170.472 What construction records must tribes and BIA keep?
170.473 What happens when a construction project ends?
170.474 Who conducts the project closeout?
Program Reviews and Management Systems
170.500 What program reviews do the Secretaries conduct?
170.501 What happens when the review process identifies areas for
improvement?
170.502 Are management systems required for the IRR Program?
170.503 How are IRR Program management systems funded?
Bridge Inspection
170.504 When and how are bridge inspections performed?
170.505 How must bridge inspections be coordinated?
170.506 What are the minimum qualifications for certified bridge
inspectors?
170.507 Who reviews bridge inspection reports?
Appendix A to Subpart D--Cultural Resource and Environmental
Requirements for the IRR Program
Appendix B to Subpart D--Design Standards for the IRR Program
Subpart E--Service Delivery for Indian Reservation Roads
Funding Process
170.600 What must BIA include in the notice of availability of
funds?
170.601 What happens to the unused portion of IRR Program management
and oversight funds reserved by the Secretary?
170.602 If a tribe incurs unforeseen construction costs, can it get
additional funds?
Miscellaneous Provisions
170.605 When may BIA use force account methods in the IRR Program?
170.606 How do legislation and procurement requirements affect the
IRR Program?
170.607 Can a tribe use its allocation of IRR Program funds for
contract support costs?
170.608 Can a tribe pay contract support costs from Department of
the Interior or BIA appropriations?
Contracts and Agreements Under ISDEAA
170.610 What IRR Program functions may a tribe assume under ISDEAA?
170.611 What special provisions apply to ISDEAA contracts and
agreements?
170.612 How are non-contractible functions funded?
170.613 When does BIA determine the amount of funds needed for non-
contractible non-project related functions?
170.614 Can a tribe receive funds before BIA publishes the notice of
funding availability?
[[Page 43104]]
170.615 Can a tribe receive advance payments for non-construction
activities?
170.616 How are advance payments made when additional IRR Program
funds are made available after execution of the self-governance
agreement?
170.617 May a tribe include a contingency in its proposal budget?
170.618 Can a tribe keep savings resulting from project
administration?
170.619 Do tribal preference and Indian preference apply to IRR
Program funding?
170.620 How do ISDEAA's Indian preference provisions apply?
170.621 What if a tribe fails to substantially perform work under a
contract or agreement?
170.622 What IRR programs, functions, services, and activities are
subject to the self-governance construction regulations?
170.623 How are IRR Program projects and activities included in a
self-governance agreement?
170.624 Is technical assistance available?
170.625 What regulations apply to waivers?
170.626 How does a tribe request a waiver of a Department of
Transportation regulation?
Appendix A to Subpart E--IRR Program functions that are not
otherwise contractible
Subpart F--Program Oversight and Accountability
170.700 What is the IRR Program stewardship plan?
170.701 May a direct service tribe and BIA Region sign a Memorandum
of Understanding?
170.702 What activities may the Secretary review and monitor?
Subpart G--BIA Road Maintenance
170.800 Who owns IRR transportation facilities?
170.801 What is the BIA Road Maintenance Program?
170.802 How is road maintenance funded?
170.803 What facilities are eligible under the BIA Road Maintenance
Program?
170.804 How is BIA's Road Maintenance Program related to the IRR
Program?
170.805 What are the local, tribal, and BIA roles in transportation
facility maintenance?
170.806 What is an IRR Transportation Facilities Maintenance
Management System (IRR TFMMS)?
170.807 What must BIA include when it develops an IRR Transportation
Facilities Maintenance Management System?
170.808 Can BIA Road Maintenance Program funds be used to improve
IRR transportation facilities?
170.809 Can a tribe perform road maintenance under a self-
determination contract or self-governance agreement?
170.810 To what standards must an IRR transportation facility be
maintained?
170.811 What happens if lack of funds results in inadequate
maintenance?
170.812 What is emergency maintenance?
170.813 When can access to IRR transportation facilities be
restricted?
Appendix A to Subpart G--List of Activities Eligible for Funding
Under BIA Transportation Facility Maintenance Program
Subpart H--Miscellaneous Provisions
Hazardous and Nuclear Waste Transportation
170.900 What is the purpose of the provisions relating to
transportation of hazardous and nuclear waste?
170.901 What standards govern transportation of radioactive and
hazardous materials?
170.902 What is the role of State, tribal, and local governments?
170.903 Who notifies tribes of the transport of radioactive waste?
170.904 Who responds to an accident involving a radioactive or
hazardous materials shipment?
170.905 How can tribes obtain training in handling hazardous
material?
170.906 Who cleans up radioactive and hazardous material spills?
Reporting Requirements and Indian Preference
170.910 What information on the IRR Program or projects must BIA
provide to tribes?
170.911 Are Indians entitled to employment and training preferences?
170.912 Does Indian employment preference apply to Federal-aid
Highway Projects?
170.913 Do tribal-specific employment rights and contract preference
laws apply?
170.914 What is the difference between tribal employment preference
and Indian employment preference?
170.915 May tribal employment taxes or fees be included in an IRR
project budget?
170.916 May tribes impose taxes or fees on those performing IRR
Program services?
170.917 Can tribes receive direct payment of tribal employment taxes
or fees?
Emergency Relief
170.920 What is the purpose of the provisions relating to emergency
relief?
170.921 What emergency or disaster assistance programs are
available?
170.922 How can States get Emergency Relief Program funds to repair
IRR System damage?
170.923 What qualifies for ERFO funding?
170.924 What happens if DOT denies an ERFO claim?
170.925 Is ERFO funding supplemental to IRR Program funding?
170.926 Can a tribe administer approved ERFO repairs under a self-
determination contract or a self-governance agreement?
170.927 How can FEMA Program funds be used to repair damage?
Tribal Transportation Departments
170.930 What is a tribal transportation department?
170.931 Can tribes use IRR Program funds to pay tribal
transportation department operating costs?
170.932 Are there other funding sources for tribal transportation
departments?
170.933 Can tribes regulate oversize or overweight vehicles?
Resolving Disputes
170.934 Are alternative dispute resolution procedures available?
170.935 How does a direct service tribe begin the alternative
dispute resolution process?
Other Miscellaneous Provisions
170.941 May tribes become involved in transportation research?
170.942 Can a tribe use Federal funds for transportation services
for a tribe's Welfare-to-Work, Temporary Assistance to Needy
Families, and other quality-of-life improvement programs?
Authority: Pub. L. 105-178, 112 Stat. 107; 5 U.S.C. 565; 23
U.S.C. 101(a), 202, 204, 308; 25 U.S.C. 47, 25 U.S.C. 450.
Subpart A--Policies, Applicability, and Definitions
Sec. 170.1 What does this part do?
This part provides rules and a funding formula for the Department
of the Interior (DOI) in implementing the Indian Reservation Roads
(IRR) Program. Included in this part are other Title 23 programs
administered by the Secretary and implemented by tribes and tribal
organizations under the Indian Self-Determination and Education
Assistance Act of 1975, as amended (ISDEAA).
Sec. 170.2 What is the IRR Program and BIA Road Maintenance Program
policy?
(a) It is the policy of the Secretary of the Interior and the
Secretary of Transportation (Secretaries) to do the following in
relation to the IRR and BIA Road Maintenance Programs:
(1) Provide a uniform and consistent set of rules;
(2) Foster knowledge of the programs by providing information about
them and the opportunities that they create;
(3) Facilitate tribal planning, conduct, and administration of the
programs;
(4) Encourage the inclusion of these programs under self-
determination contracts or self-governance agreements;
(5) Make available all contractible administrative functions under
self-determination contracts or self-governance agreements; and
(6) Implement policies, procedures, and practices in consultation
with Indian tribes to ensure the letter, spirit, and goals of Federal
transportation programs are fully implemented.
(b) Where this part differs from provisions in the Indian Self-
Determination and Education Assistance Act of 1975 (ISDEAA), this part
should advance the policy of
[[Page 43105]]
increasing tribal autonomy and discretion in program operation.
(c) This part is designed to enable Indian tribes to participate in
all contractible IRR and BIA Road Maintenance programs. The Secretary
of the Interior will afford Indian tribes the flexibility, information,
and discretion to design roads programs under self-determination
contracts and self-governance agreements to meet the needs of their
communities consistent with this part.
(d) The Secretaries recognize that programs, functions, services,
and activities, regardless of how they are administered, are an
exercise of Indian tribes' self-determination and self-governance.
(1) The tribe is responsible for managing the day-to-day operation
of its contracted Federal programs, functions, services, and
activities.
(2) The tribe accepts responsibility and accountability to the
beneficiaries under self-determination contracts and self-governance
agreements for:
(i) Use of the funds; and
(ii) Satisfactory performance of all activities funded under the
contract or agreement.
(3) The Secretary will continue to discharge the trust
responsibilities to protect and conserve the trust resources of tribes
and the trust resources of individual Indians.
(e) The Secretary should interpret Federal laws and regulations to
facilitate including programs covered by this part in the government-
to-government agreements authorized under ISDEAA.
(f) The administrative functions referenced in paragraph (a)(5) of
this section are contractible without regard to the organizational
level within the Department of the Interior that carries out these
functions. Including IRR Program administrative functions under self-
determination contracts and self-governance agreements does not limit
or reduce the funding for any program or service serving any other
tribe.
(g) The Secretary is not required to reduce funding for a tribe
under these programs to make funds available to another tribe.
(h) This part must be liberally construed for the benefit of tribes
and to implement the Federal policy of self-determination and self-
governance.
(i) Any ambiguities in this part must be construed in favor of the
tribes so as to facilitate and enable the transfer of programs
authorized by 23 U.S.C. 202 and title 25 U.S.C.
Sec. 170.3 When do other requirements apply to the IRR Program?
IRR Program Policy and Guidance Manuals and directives apply to the
IRR Program only if they are consistent with this part and 25 CFR parts
900 and 1000. See 25 CFR part 900.5 for when a tribe must comply with
other unpublished requirements.
Sec. 170.4 What is the effect of this part on existing tribal rights?
This part does not:
(a) Affect the sovereign immunity from suit enjoyed by tribes;
(b) Terminate or reduce the trust responsibility of the United
States to tribes or individual Indians;
(c) Require a tribe to assume a program relating to the IRR
Program; or
(d) Impede awards by other agencies of the United States or a State
to tribes to administer programs under any other law.
Sec. 170.5 What definitions apply to this part?
AASHTO means the American Association of State Highway and
Transportation Officials.
Annual Funding Agreement means a negotiated agreement of the
Secretary to fund, on an annual basis, the programs, functions,
services, and activities transferred to a tribe under the Indian Self-
Determination and Education Assistance Act, as amended.
Appeal means a request by a tribe or consortium for an
administrative review of an adverse agency decision.
BIA means the Bureau of Indian Affairs of the Department of the
Interior.
BIADOT means the Bureau of Indian Affairs, Division of
Transportation.
BIA force account means the performance of work done by BIA
employees.
BIA Road System means the Bureau of Indian Affairs Road System
under the IRR system. It includes those existing and proposed IRR's for
which BIA has or plans to obtain legal right-of-way. BIA has the
primary responsibility to improve and maintain the roads on this
system.
CFR means the United States Code of Federal Regulations.
Construction means the supervising, inspecting, actual building,
and incurrence of all costs incidental to the construction or
reconstruction of an IRR transportation facility, as defined in 23
U.S.C. 101. This includes bond costs and other related costs of bonds
or other debt financing instruments. It also includes costs incurred by
the State in performing Federal-aid project related audits that
directly benefit the Federal-aid highway program. The term includes--
(1) Locating, surveying, and mapping (including establishing
temporary and permanent geodetic markers in accordance with
specifications of the U.S. Geological Survey);
(2) Resurfacing, restoration, and rehabilitation;
(3) Acquiring rights-of-way;
(4) Providing relocation assistance; acquiring replacement housing
sites; and acquiring, rehabilitating, relocating, and constructing
replacement housing;
(5) Eliminating hazards of railway grade crossings;
(6) Eliminating roadside obstacles;
(7) Making improvements that facilitate and control traffic flow,
such as grade separation of intersections, widening lanes, channelizing
traffic, installing traffic control systems, and establishing passenger
loading and unloading areas; and
(8) Making capital improvements that directly facilitate an
effective vehicle weight enforcement program, such as scales (fixed and
portable), scale pits, scale installation, and scale houses.
Construction contract means a fixed price or cost reimbursement
self-determination contract for a construction project, except that
such term does not include any contract--
(1) That is limited to providing planning services and construction
management services (or a combination of such services);
(2) For the housing improvement program or roads maintenance
program of the BIA administered by the Secretary of the Interior; or
(3) For the health facility maintenance and improvement program
administered by the Secretary of Health and Human Services.
Consultation means government-to-government communication in a
timely manner by all parties about a proposed or contemplated decision
in order to:
(1) Secure meaningful tribal input and involvement in the decision-
making process; and
(2) Advise the tribe of the final decision and provide an
explanation.
Contract means a self-determination contract as defined in section
4(j) of ISDEAA or a procurement document issued under Federal or tribal
procurement acquisition regulations.
Days means calendar days, except where the last day of any time
period specified in this part falls on a Saturday, Sunday, or a Federal
holiday, the period shall carry over to the next business day unless
otherwise prohibited by law.
Design means services performed by licensed design professionals
related to preparing drawings, specifications, and other design
submissions specified in the contract or agreement, as well as services
provided by or for licensed design professionals during the bidding/
negotiating, construction, and operational phases of the project.
DOI means the Department of the Interior.
[[Page 43106]]
FHWA means the Federal Highway Administration of the Department of
Transportation.
FTA means the Federal Transit Administration of the Department of
Transportation.
Governmental subdivision of a tribe means a unit of a federally-
recognized tribe which is authorized to participate in an IRR Program
activity on behalf of the tribe.
Indian means a person who is a member of a Tribe or as otherwise
defined in 25 U.S.C. 450b.
Indian Reservation Road (IRR) means a public road that is located
within or provides access to an Indian reservation or Indian trust
land, or restricted Indian land that is not subject to fee title
alienation without the approval of the Federal government, or Indian or
Alaska Native Villages, groups, or communities in which Indians and
Alaska Natives reside, whom the Secretary of the Interior has
determined are eligible for services generally available to Indians
under Federal laws specifically applicable to Indians.
IRR Bridge Program means the program authorized under 23 U.S.C.
202(d)(4) using IRR Program funds for the improvement of deficient IRR
highway bridges.
IRR Inventory means a comprehensive database of all transportation
facilities eligible for IRR Program funding by tribe, reservation, BIA
agency and region, Congressional district, State, and county. Other
specific information collected and maintained under the IRR Program
includes classification, route number, bridge number, current and
future traffic volumes, maintenance responsibility, and ownership.
IRR Program means a part of the Federal Lands Highway Program
established in 23 U.S.C. 204 to address transportation needs of tribes.
IRR Program construction funds means the pool of funds BIA
distributes according to the Relative Need Distribution Factor.
IRR Program funds means the funds covered in chapter 2 of title 23
U.S.C. and the associated program management costs. These funds are
used for:
(1) Transportation planning, research, and engineering; and
(2) Construction of highways, roads, parkways, or transit
facilities within or providing access to Indian lands, communities, and
Alaska Native villages.
IRR Program management and oversight funds means those funds
authorized by Congress to pay the cost of performing IRR Program
management activities.
IRR System means all the roads and bridges that comprise the IRR.
IRR transportation facilities means public roads, bridges, drainage
structures, culverts, ferry routes, marine terminals, transit
facilities, boardwalks, pedestrian paths, trails, and their
appurtenances, and other transportation facilities as designated by the
tribe and the Secretary.
IRR Transportation Improvement Program (IRRTIP) means a list
developed by BIA of projects programmed for construction in the next 3
to 5 years.
ISDEAA means the Indian Self-Determination and Education Assistance
Act of 1975, Public Law 93-638, as amended.
Maintenance means the preservation of the entire highway, including
surface, shoulders, roadsides, structures, and such traffic-control
devices as are necessary for safe and efficient utilization of the
highway.
NBI means the national bridge inventory, which is the database of
structural and appraisal data collected to fulfill the requirements of
the National Bridge Inspection Standards, as defined in 23 CFR part
650, subpart C. Each State and BIA must maintain an inventory of all
bridges that are subject to the NBI standards and provide this data to
the Federal Highway Administration (FHWA). The NBI is maintained and
monitored by the FHWA Office of Bridge Technology.
Office of Self-Governance (OSG) means the office within the Office
of the Assistant Secretary--Indian Affairs, Department of the Interior,
that is responsible for implementing and developing tribal self-
governance.
Program means any program, function, service, activity, or portion
thereof.
Project Planning means project-related activities that precede the
design phase of a transportation project. Examples of these activities
are: Collecting data on traffic, accidents, or functional, safety or
structural deficiencies; corridor studies; conceptual studies,
environmental studies; geotechnical studies; archaeological studies;
project scoping; public hearings; location analysis; preparing
applications for permits and clearances; and meetings with facility
owners and transportation officials.
Proposed road means a road which does not currently exist and needs
to be constructed.
Public Authority means a Federal, State, county, town, or township,
Indian tribe, municipal, or other local government or instrumentality
with authority to finance, build, operate, or maintain toll or toll-
free facilities.
Public road means any road or street under the jurisdiction of and
maintained by a public authority and open to public travel.
Real Property means any interest in land together with the
improvements, structures, and fixtures and appurtenances.
Regionally significant project means a project that modifies a
facility that serves regional transportation needs and would normally
be included in the modeling of a metropolitan area's transportation
network. The term includes work on principal arterial highways and all
fixed guideway transit facilities that offer a significant alternative
to regional highway travel. (``Regional transportation needs'' includes
access to and from the area outside of the region; major planned
developments such as new retail malls, sports complexes, etc.; or
transportation terminations, as well as most terminals themselves).
Rehabilitation means the work required to restore the structural
integrity of transportation facilities as well as work necessary to
correct safety defects.
Relocation means the adjustment of transportation facilities and
utilities required by a highway project. It includes removing and
reinstalling the facility, including necessary temporary facilities;
acquiring necessary right-of-way on the new location; moving,
rearranging or changing the type of existing facilities; and taking any
necessary safety and protective measures. It also means constructing a
replacement facility that is both functionally equivalent to the
existing facility and necessary for continuous operation of the utility
service, the project economy, or sequence of highway construction.
Relocation Services means payment and assistance authorized by the
Uniform Relocation and Real Property Acquisitions Policy Act, 42 U.S.C.
4601 et seq., as amended.
Rest area means an area or site established and maintained within
or adjacent to the highway right-of-way or under public supervision or
control for the convenience of the traveling public.
Secretaries means the Secretary of the Interior and the Secretary
of Transportation.
Secretary means the Secretary of the Interior or her/his designee
authorized to act on behalf of the Secretary.
Secretary of Transportation means the Secretary of Transportation
or a designee authorized to act on behalf of the Secretary.
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State transportation agency means that department, commission,
board, or official of any State charged by its laws with the
responsibility for highway construction. The term ``State'' would be
considered equivalent to ``State transportation agency'' if the context
so implies.
STIP means Statewide Transportation Improvement Program. It is a
financially constrained, multi-year list of transportation projects.
The STIP is developed under 23 U.S.C. 134 and 135, and 49 U.S.C. 5303-
5305. The Secretary of Transportation reviews and approves the STIP for
each State.
Transit means services, equipment, and functions associated with
the public movement of people served within a community or network of
communities.
Transportation planning means developing land use, economic
development, traffic demand, public safety, health and social
strategies to meet transportation current and future needs.
Tribal transportation planning funds means funds referenced in 23
U.S.C. 204(j).
Tribe means any tribe, nation, band, pueblo, rancheria,colony, or
community, including any Alaska Native village or regional or village
corporation as defined or established under the Alaska Native Claims
Settlement Act that is federally recognized by the U.S. government for
special programs and services provided by the Secretary to Indians
because of their status as Indians.
TTIP means Tribal Transportation Improvement Program. It is a
multi-year financially constrained list of proposed transportation
projects developed by a tribe from the tribal priority list or the
long-range transportation plan.
U.S.C. means the United States Code.
Sec. 170.6 Information Collection.
The information collection requirements contained in this part have
been approved by the Office of Management and Budget under 44 U.S.C. et
seq. and assigned clearance number 1076-0161. This information
collection is specifically found in subparts C and D of this part and
represent a total reporting burden to the public of 31,470 hours or an
average of 56.5 hours per respondent. A Federal agency may not conduct
or sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
Comments and suggestions on the burden estimate or any other aspect of
the form should be sent directly to the Office of Management and
Budget; Attention: Interior Desk Officer; Washington, DC 20503; and a
copy of the comments should be sent to the Information Collection
Clearance Officer, Bureau of Indian Affairs, 1849 C Street, NW.,
Washington, DC 20240.
Subpart B--Indian Reservation Roads Program Policy and Eligibility
Consultation, Collaboration, Coordination
Sec. 170.100 What do the terms ``consultation, collaboration, and
coordination'' mean?
(a) Consultation means government-to-government communication in a
timely manner by all parties about a proposed or contemplated decision
in order to:
(1) Secure meaningful tribal input and involvement in the decision-
making process; and
(2) Advise the tribe of the final decision and provide an
explanation.
(b) Collaboration means that all parties involved in carrying out
planning and project development work together in a timely manner to
achieve a common goal or objective.
(c) Coordination means that each party:
(1) Shares and compares in a timely manner its transportation
plans, programs, projects, and schedules with the related plans,
programs, projects, and schedules of the other parties; and
(2) Adjusts its plans, programs, projects, and schedules to
optimize the efficient and consistent delivery of transportation
projects and services.
Sec. 170.101 What is the IRR Program consultation and coordination
policy?
(a) The IRR Program's government-to-government consultation and
coordination policy is to foster and improve communication,
cooperation, and coordination among tribal, Federal, state, and local
governments and other transportation organizations when undertaking the
following, similar, or related activities:
(1) Identifying high-accident locations and locations for improving
both vehicle and pedestrian safety;
(2) Developing State, metropolitan, regional, IRR, and tribal
transportation improvement programs that impact tribal lands,
communities, and members;
(3) Developing short- and long-range transportation plans;
(4) Developing IRR Program transportation projects;
(5) Developing environmental mitigation measures necessary to
protect and/or enhance Indian lands and the environment, and counteract
the impacts of the projects;
(6) Developing plans or projects to replace or rehabilitate
deficient IRR bridges;
(7) Developing plans or projects for disaster and emergency relief
response and the repair of eligible damaged IRR transportation
facilities;
(8) Assisting in the development of State and tribal agreements
related to the IRR Program;
(9) Developing and improving transit systems serving Indian lands
and communities; and
(10) Assisting in the submission of discretionary grant
applications for State and Federal funding for IRR transportation
facilities.
(b) Tribes and State and Federal Government agencies may enter into
intergovernmental Memoranda of Agreement (MOA) to streamline and
facilitate consultation, collaboration, and coordination.
Sec. 170.102 How do the Departments consult, collaborate, and
coordinate with tribal governments?
The Department of the Interior and the Department of Transportation
operate within a government-to-government relationship with federally
recognized tribes. As a critical element of this relationship, these
agencies should assess the impact of Federal transportation policies,
plans, projects, and programs on tribal rights and interests to ensure
that these rights and concerns are appropriately considered.
Sec. 170.103 What goals and principles guide the Secretaries?
When undertaking transportation activities affecting tribes, the
Secretaries should, to the maximum extent permitted by law:
(a) Establish regular and meaningful consultation and collaboration
with affected tribal governments, including facilitating the direct
involvement of tribal governments in short- and long-range Federal
transportation planning efforts;
(b) Promote the rights of tribal governments to govern their own
internal affairs;
(c) Promote the rights of tribal governments to receive direct
transportation services from the Federal Government or to enter into
agreements to directly operate any tribally related transportation
programs serving tribal members;
(d) Ensure the continuation of the trust responsibility of the
United States to tribes and Indian individuals;
(e) Reduce the imposition of unfunded mandates upon tribal
governments;
[[Page 43108]]
(f) Encourage flexibility and innovation in the implementation of
the IRR Program;
(g) Reduce, streamline, and eliminate unnecessarily restrictive
transportation policies, guidelines, or procedures;
(h) Ensure that tribal rights and interests are appropriately
considered during program development;
(i) Ensure that the IRR Program is implemented consistent with
tribal sovereignty and the government-to-government relationship; and
(j) Consult with, and solicit the participation of, tribes in the
development of the annual BIA budget proposals.
Sec. 170.104 Must the Secretary consult with tribal governments
before obligating IRR Program funds?
Yes. Before obligating IRR program funds on any project that is for
direct service activities, the Secretary must consult with the affected
tribe to determine the tribal preferences concerning the project. The
Secretary must provide information in accordance with Sec. 170.600
within 30 days of the Notice of Availability of Funds publication in
the Federal Register.
Sec. 170.105 Are funds available for consultation, collaboration, and
coordination activities?
To fund consultation, collaboration, and coordination of IRR
Program activities, tribes may use:
(a) The tribes' IRR Program allocations;
(b) Tribal Priority Allocation (TPA) funds;
(c) Administration for Native Americans (ANA) funds;
(d) Economic Development Administration (EDA) funds;
(e) United States Department of Agriculture (USDA) Rural
Development funds;
(f) Community Development Block Grant (CDBG) funds; Indian Housing
Block Grant (IHBG) funds;
(g) Indian Health Service Tribal Management Grant (IHSTMG) funds;
(h) General funds of the tribal government; and
(i) Any other funds available for the purpose of consultation,
collaboration, and coordination activities.
Sec. 170.106 When must State governments consult with tribes?
Each State must develop the State Transportation Improvement
Program (STIP) in consultation with tribes and BIA in those areas under
Indian tribal jurisdiction. This includes providing for a fully
coordinated transportation planning process that coordinates
transportation planning efforts carried out by the State with
transportation planning efforts carried out by tribes. The statewide
and metropolitan planning organization requirements are in 23 U.S.C.
134 and 135. Regulations can be found at 23 CFR part 450.
Sec. 170.107 Should planning organizations and local governments
consult with tribes when planning for transportation projects?
Yes. The Department's policy is to foster and improve
communication, cooperation, and coordination among metropolitan
planning organizations (MPOs), regional planning organizations (RPOs),
local governments, municipal governments, and tribes on transportation
matters of common concern. Accordingly, planning organizations and
local governments should consult with tribal governments when planning
for transportation projects.
Sec. 170.108 Should Indian tribes and BIA consult with States'
planning organizations and local governments in the development of
their IRRTIP?
Yes.
(a) All regionally significant IRR Program projects must be:
(1) Developed in cooperation with State and metropolitan planning
organizations; and
(2) Included in appropriate Federal Lands Highway Program
transportation improvement programs for inclusion in state and
metropolitan plans.
(b) BIA and tribes are encouraged to consult with States,
metropolitan and regional planning organizations, and local and
municipal governments, on transportation matters of common concern.
Sec. 170.109 How do the Secretaries prevent discrimination or adverse
impacts?
In administering the IRR Program, the Secretaries ensure that
nondiscrimination and environmental justice principles are integral
program elements. The Secretaries consult with tribes early in the
program development process to identify potential discrimination and to
recommend corrective actions to avoid disproportionately high and
adverse effects on tribes and Native American populations.
Sec. 170.110 How can State and local governments prevent
discrimination or adverse impacts?
(a) Under 23 U.S.C. 134 and 135, and 23 CFR part 450, State and
local government officials should consult and work with tribes early in
the development of programs to:
(1) Identify potential discrimination; and
(2) Recommend corrective actions to avoid disproportionately high
and adverse effects on tribes and Native American populations.
(b) Examples of adverse effects include, but are not limited to:
(1) Impeding access to tribal communities or activities;
(2) Creating excessive access to culturally or religiously
sensitive areas;
(3) Negatively affecting natural resources, trust resources, tribal
businesses, religious, and cultural sites;
(4) Harming indigenous plants and animals; and
(5) Impairing the ability of tribal members to engage in
commercial, cultural, and religious activities.
Sec. 170.111 What can a tribe do if discrimination or adverse impacts
occur?
If discrimination or adverse impacts occur, a tribe should take the
following steps in the order listed:
(a) Take reasonable steps to resolve the problem directly with the
State or local government involved;
(b) Contact BIA, FHWA, or the Federal Transit Authority (FTA), as
appropriate, to report the problem and seek assistance in resolving the
problem.
Eligible Uses if IRR Program Funds
Sec. 170.115 What activities may be funded with IRR Program funds?
(a) IRR Program funds may be used:
(1) For all of the items listed in appendix A to this subpart;
(2) For other purposes identified in this part; or
(3) For other purposes recommended by the IRR Program Coordinating
Committee under the procedures in Appendix A to Subpart B (35) and
Sec. 170.156 and approved by FHWA or BIA pursuant to Sec. 170.117.
(b) Each of the items listed in Appendix A must be interpreted in a
manner that permits, rather than prohibits, a proposed use of funds.
Sec. 170.116 What activities are not eligible for IRR Program
funding?
IRR Program funds cannot be used for any of the following:
(a) Routine maintenance work such as: grading shoulders and
ditches; cleaning culverts; snow removal, roadside mowing, normal sign
repair and replacement, painting roadway structures, and the
maintaining, cleaning, or repair of bridge appurtenances;
(b) Structures and erosion protection unrelated to transportation
and roadways;
(c) General reservation planning not involving transportation;
[[Page 43109]]
(d) Landscaping and irrigation systems not involving transportation
programs and projects;
(e) Work performed on projects that are not included on an FHWA-
approved IRR Transportation Improvement Program (TIP), unless otherwise
authorized by the Secretary of the Interior and the Secretary of
Transportation;
(f) Purchase of equipment unless authorized by Federal law or in
this part; or
(g) Condemnation of land for recreational trails.
Sec. 170.117 How can a tribe determine whether a new use of funds is
allowable?
(a) A tribe that proposes new uses of IRR Program funds must ask
BIA in writing whether the proposed use is eligible under Federal law.
The tribe must also provide a copy of its inquiry to FHWA.
(1) In cases involving eligibility questions that refer to 25
U.S.C., BIA will determine whether the new proposed use of IRR Program
funds is allowable and provide a written response to the requesting
tribe within 45 days of receiving the written inquiry. Tribes may
appeal a denial of a proposed use by BIA under 25 CFR part 2. The
address is: Department of the Interior, BIA, Division of
Transportation, 1849 C Street, NW., MS 4058-MIB, Washington, DC 20240.
(2) In cases involving eligibility questions that refer to the IRR
Program or 23 U.S.C., BIA will refer an inquiry to FHWA for decision.
FHWA must provide a written response to the requesting tribe within 45
days of receiving the written inquiry from the tribe. Tribes may appeal
denials of a proposed use by the FHWA to: FHWA, 400 7th St., SW., HFL-
1, Washington, DC 20590.
(b) To the extent practical, the deciding agency must consult with
the IRR Program Coordinating Committee before denying a request. BIA
and FHWA will send copies of all eligibility determinations to the IRR
Program Coordinating Committee and BIA Regional offices.
(c) If either BIA or FHWA fails to issue the requesting tribe a
timely response to the eligibility inquiry, the proposed use will be
deemed to be allowable for that specific project.
Use of IRR and Cultural Access Roads
Sec. 170.120 What restrictions apply to the use of an Indian
Reservation Road?
Indian Reservation Roads (IRRs) must be open and available for
public use. However, the public authority having jurisdiction over
these roads may:
(a) Restrict road use or close roads temporarily when required for
public safety, fire prevention or suppression, fish or game protection,
low load capacity bridges, prevention of damage to unstable roadbeds,
or as contained in Sec. Sec. 170.122 and 170.813;
(b) Conduct engineering and traffic analysis to determine maximum
speed limits, maximum vehicular size, and weight limits, and identify
needed traffic control devices; and
(c) Erect, maintain, and enforce compliance with signs and pavement
markings.
Sec. 170.121 What is a cultural access road?
(a) A cultural access road is a public road that provides access to
sites for cultural purposes as defined by individual tribal traditions,
which may include, for example:
(1) Sacred and medicinal sites;
(2) Gathering medicines or materials such as grasses for basket
weaving; or
(3) Other traditional activities, including, but not limited to,
subsistence hunting, fishing and gathering.
(b) A tribal government may unilaterally designate a tribal road as
a cultural access road. A cultural access road designation is an
entirely voluntary and internal decision made by the tribe to help it
and other public authorities manage, protect, and preserve access to
locations that have cultural significance.
(c) In order for a tribal government to designate a non-tribal road
as a cultural access road, it must enter into an agreement with the
public authority having jurisdiction over the road.
(d) Cultural access roads may be included in the IRR Inventory if
they meet the definition of an IRR.
Sec. 170.122 Can a tribe close a cultural access road?
(a) A tribe with jurisdiction over a cultural access road can close
it. The tribe can do this:
(1) During periods when the tribe or tribal members are involved in
cultural activities; and
(2) In order to protect the health and safety of the trib