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Indian Reservation Roads Program
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs 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 [[Page 43091]] 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 [[Page 43092]] 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 [[Page 43093]] 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 [[Page 43094]] 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 ---------------------------------------------------------------------------------------------------------------- BILLING CODE 4310-LH-P [[Page 43101]] [GRAPHIC] [TIFF OMITTED] TR19JY04.000 BILLING CODE 4310-LH-C [[Page 43102]] List of Subjects in 25 CFR Part 170 Highways and roads, Indians--lands. Dated: February 26, 2004. David Anderson, Assistant Secretary--Indian Affairs. Editorial Note: This document was received in the Office of the Federal Register on July 9, 2004. 0 For the reasons stated in the preamble, the Department of the Interior, Bureau of Indian Affairs, revises part 170 in title 25 of the Code of Federal Regulations as follows: PART 170--INDIAN RESERVATION ROADS PROGRAM Subpart A--Policies, Applicability, and Definitions Sec. 170.1 What does this part do? 170.2 What is the IRR Program and BIA Road Maintenance Program policy? 170.3 When do other requirements apply to the IRR Program? 170.4 What is the effect of this part on existing tribal rights? 170.5 What definitions apply to this part? 170.6 Information collection. Subpart B--Indian Reservation Roads Program Policy and Eligibility Consultation, Collaboration, Coordination 170.100 What do the terms ``consultation, collaboration, and coordination'' mean? 170.101 What is the IRR Program consultation and coordination policy? 170.102 How do the Departments consult, collaborate, and coordinate with tribal governments? 170.103 What goals and principles guide the Secretaries? 170.104 Must the Secretary consult with tribal governments before obligating IRR Program funds? 170.105 Are funds available for consultation, collaboration, and coordination activities? 170.106 When must State governments consult with tribes? 170.107 Should planning organizations and local governments consult with tribes when planning for transportation projects? 170.108 Should Indian tribes and BIA consult with States' planning organizations and local governments in the development of their IRRTIP? 170.109 How do the Secretaries prevent discrimination or adverse impacts? 170.110 How can State and local governments prevent discrimination or adverse impacts? 170.111 What can a tribe do if discrimination or adverse impacts occur? Eligible Uses of IRR Program Funds 170.115 What activities may be funded with IRR Program funds? 170.116 What activities are not eligible for IRR Program funding? 170.117 How can a tribe determine whether a new use of funds is allowable? Use of IRR and Cultural Access Roads 170.120 What restrictions apply to the use of an Indian Reservation Road? 170.121 What is a cultural access road? 170.122 Can a tribe close a cultural access road? Seasonal Transportation Routes 170.123 What are seasonal transportation routes? 170.124 Does the IRR Program cover seasonal transportation routes? IRR Housing Access Roads 170.127 What terms apply to access roads? 170.128 Are housing access roads and housing streets eligible for IRR Program funding? Toll, Ferry and Airport Facilities 170.130 How can tribes use Federal highway funds for toll and ferry facilities? 170.131 How can a tribe find out more about designing and operating a toll facility? 170.132 When can a tribe use IRR Program funds for airport facilities? Recreation, Tourism and Trails 170.135 Can a tribe use Federal funds for its recreation, tourism, and trails program? 170.136 How can a tribe obtain funds? 170.137 What types of activities can a recreation, tourism, and trails program include? 170.138 Can roads be built in roadless and wild areas? Highway Safety Functions 170.141 What Federal funds are available for a tribe's highway safety activities? 170.142 How can tribes obtain funds to perform highway safety projects? 170.143 How can IRR Program funds be used for highway safety? 170.144 What are eligible highway safety projects? 170.145 Are other funds available for a tribe's highway safety efforts? Transit Facilities 170.148 What is a tribal transit program? 170.149 How do tribes identify transit needs? 170.150 What Federal funds are available for a tribe's transit program? 170.151 May a tribe or BIA use IRR Program funds as matching funds? 170.152 What transit facilities and activities are eligible for IRR Program funding? IRR Program Coordinating Committee 170.155 What is the IRR Program Coordinating Committee? 170.156 What are the IRR Program Coordinating Committee's responsibilities? 170.157 What is the IRR Program Coordinating Committee's role in the funding process? 170.158 How does the IRR Program Coordinating Committee conduct business? Indian Local Technical Assistance Program 170.161 What is the Indian Local Technical Assistance Program? 170.162 How is the Indian LTAP funded? 170.163 How are Indian LTAP recipients selected? 170.164 How are tribal representatives nominated and chosen for the selection committee? 170.165 May a tribe enter into a contract or agreement for Indian LTAP funds? 170.166 What services do Indian LTAP centers provide? 170.167 How does a tribe obtain services from an Indian LTAP center? 170.168 Do Indian LTAP centers offer services similar to those of State LTAPs? 170.169 What can a tribe do if Indian LTAP services are unsatisfactory? 170.170 How are Indian LTAP centers managed? 170.171 How are tribal advisory technical panel members selected? Indian LTAP-Sponsored Education and Training Opportunities 170.175 What Indian LTAP-sponsored transportation training and educational opportunities exist? 170.176 Where can tribes get scholarships and tuition for Indian LTAP-sponsored education and training? Appendix A to Subpart B--Allowable Uses of IRR Program Funds Appendix B to Subpart B--Sources of Tribal Transportation Training and Education Opportunities Subpart C--Indian Reservation Roads Program Funding Tribal Transportation Allocation Methodology (TTAM) 170.200 How does BIA allocate IRR Program funds? 170.201 How does BIA allocate and distribute tribal transportation planning funds? 170.202 Does the Relative Need Distribution Factor allocate funding among tribes? IRR High Priority Project (IRRHPP) 170.205 What is an IRR High Priority Project (IRRHPP)? 170.206 How is an emergency/disaster defined? 170.207 What is the intent of IRRHPP emergency/disaster funding? 170.208 What funding is available for IRRHPP? 170.209 How will IRRHPP applications be ranked and funded? 170.210 How may a tribe apply for IRRHPP? 170.211 What is the IRRHPP Funding Priority List? 170.212 What is the timeline for IRRHPPs? 170.213 How long are IRRHPP funds available for a project? 170.214 How does award of an emergency/disaster project affect projects on the FPL? Population Adjustment Factor 170.220 What is the Population Adjustment Factor? [[Page 43103]] 170.221 What funding is available for distribution using the PAF? Relative Need Distribution Factor 170.223 What is the Relative Need Distribution Factor (RNDF)? IRR Inventory and Long-Range Transportation Planning (LRTP) 170.225 How does the LRTP process relate to the IRR Inventory? 170.226 How will this part affect the IRR Inventory? 170.227 How does BIA develop and use the IRR Inventory? 170.228 Are all facilities included in the IRR Inventory used to calculate CTC? General Data Appeals 170.231 May a tribe challenge the data BIA uses in the RNDF? 170.232 How does a tribe appeal a disapproval from the BIA Regional Director? Flexible Financing 170.300 May tribes use flexible financing to finance IRR transportation projects? 170.301 Can a tribe use IRR Program funds to leverage other funds or pay back loans? 170.302 Can BIA regional offices borrow IRR Program funds from each other? 170.303 Can a tribe apply for loans or credit from a State infrastructure bank? Appendix A to Subpart C--IRR High Priority Project Scoring Matrix Appendix B to Subpart C--Population Adjustment Factor Appendix C to Subpart C--Relative Need Distribution Factor Appendix D to Subpart C--Cost to Construct Subpart D--Planning, Design, and Construction of Indian Reservation Roads Program Facilities Transportation Planning 170.400 What is the purpose of transportation planning? 170.401 What is BIA's role in transportation planning? 170.402 What is the tribal role in transportation planning? 170.403 What IRR Program funds can be used for transportation planning? 170.404 What happens when a tribe uses its IRR Program construction funds for transportation planning? 170.405 Can tribal transportation planning funds be used for road construction and other projects? 170.406 How must tribes use planning funds? 170.407 What happens to unobligated planning funds? Long-Range Transportation Planning 170.410 What is the purpose of tribal long-range transportation planning? 170.411 What can a long-range transportation plan include? 170.412 How is the tribal IRR long-range transportation plan developed and approved? 170.413 What is the public role in developing the long-range transportation plan? 170.414 How is the tribal long-range transportation plan used and updated? 170.415 What is pre-project planning? Transportation Improvement Program 170.420 What is the tribal priority list? 170.421 What is the Tribal Transportation Improvement Program (TTIP)? 170.422 What is the IRR Transportation Improvement Program (IRRTIP)? 170.423 How are projects placed on the IRRTIP? 170.424 How does the public participate in developing the IRRTIP? 170.425 How does BIA update the IRRTIP? 170.426 What is the approval process for the IRRTIP? 170.427 How may an IRRTIP be amended? 170.428 How is the State Transportation Improvement Program related to the IRRTIP? Public Hearings 170.435 How does BIA or the tribe determine the need for a public hearing? 170.436 How are public hearings for IRR planning and projects funded? 170.437 How must BIA or a tribe inform the public when no hearing is held? 170.438 How must BIA or a tribe inform the public when a hearing is held? 170.439 How is a public hearing conducted? 170.440 How can the public learn the results of a public hearing? 170.441 Can a decision resulting from a hearing be appealed? IRR Inventory 170.442 What is the IRR Inventory? 170.443 How can a tribe list a proposed transportation facility in the IRR Inventory? 170.444 How is the IRR Inventory updated? 170.445 What is a strip map? Environmental and Archeological Requirements 170.450 What archeological and environmental requirements must the IRR Program meet? 170.451 Can IRR Program funds be used for archeological and environmental compliance? Design 170.454 What design standards are used in the IRR Program? 170.455 How are design standards used in IRR projects? 170.456 When can a tribe request an exception from the design standards? 170.457 Can a tribe appeal a denial? Review and Approval of Plans, Specifications, and Estimates 170.460 What must a project package include? 170.461 May a tribe approve plans, specifications, and estimates? 170.462 When may a self-determination contract or self-governance agreement include PS&E review and approval? 170.463 What should the Secretary do if a design deficiency is identified? Construction and Construction Monitoring 170.470 What are the IRR construction standards ? 170.471 How are projects administered? 170.472 What construction records must tribes and BIA keep? 170.473 What happens when a construction project ends? 170.474 Who conducts the project closeout? Program Reviews and Management Systems 170.500 What program reviews do the Secretaries conduct? 170.501 What happens when the review process identifies areas for improvement? 170.502 Are management systems required for the IRR Program? 170.503 How are IRR Program management systems funded? Bridge Inspection 170.504 When and how are bridge inspections performed? 170.505 How must bridge inspections be coordinated? 170.506 What are the minimum qualifications for certified bridge inspectors? 170.507 Who reviews bridge inspection reports? Appendix A to Subpart D--Cultural Resource and Environmental Requirements for the IRR Program Appendix B to Subpart D--Design Standards for the IRR Program Subpart E--Service Delivery for Indian Reservation Roads Funding Process 170.600 What must BIA include in the notice of availability of funds? 170.601 What happens to the unused portion of IRR Program management and oversight funds reserved by the Secretary? 170.602 If a tribe incurs unforeseen construction costs, can it get additional funds? Miscellaneous Provisions 170.605 When may BIA use force account methods in the IRR Program? 170.606 How do legislation and procurement requirements affect the IRR Program? 170.607 Can a tribe use its allocation of IRR Program funds for contract support costs? 170.608 Can a tribe pay contract support costs from Department of the Interior or BIA appropriations? Contracts and Agreements Under ISDEAA 170.610 What IRR Program functions may a tribe assume under ISDEAA? 170.611 What special provisions apply to ISDEAA contracts and agreements? 170.612 How are non-contractible functions funded? 170.613 When does BIA determine the amount of funds needed for non- contractible non-project related functions? 170.614 Can a tribe receive funds before BIA publishes the notice of funding availability? [[Page 43104]] 170.615 Can a tribe receive advance payments for non-construction activities? 170.616 How are advance payments made when additional IRR Program funds are made available after execution of the self-governance agreement? 170.617 May a tribe include a contingency in its proposal budget? 170.618 Can a tribe keep savings resulting from project administration? 170.619 Do tribal preference and Indian preference apply to IRR Program funding? 170.620 How do ISDEAA's Indian preference provisions apply? 170.621 What if a tribe fails to substantially perform work under a contract or agreement? 170.622 What IRR programs, functions, services, and activities are subject to the self-governance construction regulations? 170.623 How are IRR Program projects and activities included in a self-governance agreement? 170.624 Is technical assistance available? 170.625 What regulations apply to waivers? 170.626 How does a tribe request a waiver of a Department of Transportation regulation? Appendix A to Subpart E--IRR Program functions that are not otherwise contractible Subpart F--Program Oversight and Accountability 170.700 What is the IRR Program stewardship plan? 170.701 May a direct service tribe and BIA Region sign a Memorandum of Understanding? 170.702 What activities may the Secretary review and monitor? Subpart G--BIA Road Maintenance 170.800 Who owns IRR transportation facilities? 170.801 What is the BIA Road Maintenance Program? 170.802 How is road maintenance funded? 170.803 What facilities are eligible under the BIA Road Maintenance Program? 170.804 How is BIA's Road Maintenance Program related to the IRR Program? 170.805 What are the local, tribal, and BIA roles in transportation facility maintenance? 170.806 What is an IRR Transportation Facilities Maintenance Management System (IRR TFMMS)? 170.807 What must BIA include when it develops an IRR Transportation Facilities Maintenance Management System? 170.808 Can BIA Road Maintenance Program funds be used to improve IRR transportation facilities? 170.809 Can a tribe perform road maintenance under a self- determination contract or self-governance agreement? 170.810 To what standards must an IRR transportation facility be maintained? 170.811 What happens if lack of funds results in inadequate maintenance? 170.812 What is emergency maintenance? 170.813 When can access to IRR transportation facilities be restricted? Appendix A to Subpart G--List of Activities Eligible for Funding Under BIA Transportation Facility Maintenance Program Subpart H--Miscellaneous Provisions Hazardous and Nuclear Waste Transportation 170.900 What is the purpose of the provisions relating to transportation of hazardous and nuclear waste? 170.901 What standards govern transportation of radioactive and hazardous materials? 170.902 What is the role of State, tribal, and local governments? 170.903 Who notifies tribes of the transport of radioactive waste? 170.904 Who responds to an accident involving a radioactive or hazardous materials shipment? 170.905 How can tribes obtain training in handling hazardous material? 170.906 Who cleans up radioactive and hazardous material spills? Reporting Requirements and Indian Preference 170.910 What information on the IRR Program or projects must BIA provide to tribes? 170.911 Are Indians entitled to employment and training preferences? 170.912 Does Indian employment preference apply to Federal-aid Highway Projects? 170.913 Do tribal-specific employment rights and contract preference laws apply? 170.914 What is the difference between tribal employment preference and Indian employment preference? 170.915 May tribal employment taxes or fees be included in an IRR project budget? 170.916 May tribes impose taxes or fees on those performing IRR Program services? 170.917 Can tribes receive direct payment of tribal employment taxes or fees? Emergency Relief 170.920 What is the purpose of the provisions relating to emergency relief? 170.921 What emergency or disaster assistance programs are available? 170.922 How can States get Emergency Relief Program funds to repair IRR System damage? 170.923 What qualifies for ERFO funding? 170.924 What happens if DOT denies an ERFO claim? 170.925 Is ERFO funding supplemental to IRR Program funding? 170.926 Can a tribe administer approved ERFO repairs under a self- determination contract or a self-governance agreement? 170.927 How can FEMA Program funds be used to repair damage? Tribal Transportation Departments 170.930 What is a tribal transportation department? 170.931 Can tribes use IRR Program funds to pay tribal transportation department operating costs? 170.932 Are there other funding sources for tribal transportation departments? 170.933 Can tribes regulate oversize or overweight vehicles? Resolving Disputes 170.934 Are alternative dispute resolution procedures available? 170.935 How does a direct service tribe begin the alternative dispute resolution process? Other Miscellaneous Provisions 170.941 May tribes become involved in transportation research? 170.942 Can a tribe use Federal funds for transportation services for a tribe's Welfare-to-Work, Temporary Assistance to Needy Families, and other quality-of-life improvement programs? Authority: Pub. L. 105-178, 112 Stat. 107; 5 U.S.C. 565; 23 U.S.C. 101(a), 202, 204, 308; 25 U.S.C. 47, 25 U.S.C. 450. Subpart A--Policies, Applicability, and Definitions Sec. 170.1 What does this part do? This part provides rules and a funding formula for the Department of the Interior (DOI) in implementing the Indian Reservation Roads (IRR) Program. Included in this part are other Title 23 programs administered by the Secretary and implemented by tribes and tribal organizations under the Indian Self-Determination and Education Assistance Act of 1975, as amended (ISDEAA). Sec. 170.2 What is the IRR Program and BIA Road Maintenance Program policy? (a) It is the policy of the Secretary of the Interior and the Secretary of Transportation (Secretaries) to do the following in relation to the IRR and BIA Road Maintenance Programs: (1) Provide a uniform and consistent set of rules; (2) Foster knowledge of the programs by providing information about them and the opportunities that they create; (3) Facilitate tribal planning, conduct, and administration of the programs; (4) Encourage the inclusion of these programs under self- determination contracts or self-governance agreements; (5) Make available all contractible administrative functions under self-determination contracts or self-governance agreements; and (6) Implement policies, procedures, and practices in consultation with Indian tribes to ensure the letter, spirit, and goals of Federal transportation programs are fully implemented. (b) Where this part differs from provisions in the Indian Self- Determination and Education Assistance Act of 1975 (ISDEAA), this part should advance the policy of [[Page 43105]] increasing tribal autonomy and discretion in program operation. (c) This part is designed to enable Indian tribes to participate in all contractible IRR and BIA Road Maintenance programs. The Secretary of the Interior will afford Indian tribes the flexibility, information, and discretion to design roads programs under self-determination contracts and self-governance agreements to meet the needs of their communities consistent with this part. (d) The Secretaries recognize that programs, functions, services, and activities, regardless of how they are administered, are an exercise of Indian tribes' self-determination and self-governance. (1) The tribe is responsible for managing the day-to-day operation of its contracted Federal programs, functions, services, and activities. (2) The tribe accepts responsibility and accountability to the beneficiaries under self-determination contracts and self-governance agreements for: (i) Use of the funds; and (ii) Satisfactory performance of all activities funded under the contract or agreement. (3) The Secretary will continue to discharge the trust responsibilities to protect and conserve the trust resources of tribes and the trust resources of individual Indians. (e) The Secretary should interpret Federal laws and regulations to facilitate including programs covered by this part in the government- to-government agreements authorized under ISDEAA. (f) The administrative functions referenced in paragraph (a)(5) of this section are contractible without regard to the organizational level within the Department of the Interior that carries out these functions. Including IRR Program administrative functions under self- determination contracts and self-governance agreements does not limit or reduce the funding for any program or service serving any other tribe. (g) The Secretary is not required to reduce funding for a tribe under these programs to make funds available to another tribe. (h) This part must be liberally construed for the benefit of tribes and to implement the Federal policy of self-determination and self- governance. (i) Any ambiguities in this part must be construed in favor of the tribes so as to facilitate and enable the transfer of programs authorized by 23 U.S.C. 202 and title 25 U.S.C. Sec. 170.3 When do other requirements apply to the IRR Program? IRR Program Policy and Guidance Manuals and directives apply to the IRR Program only if they are consistent with this part and 25 CFR parts 900 and 1000. See 25 CFR part 900.5 for when a tribe must comply with other unpublished requirements. Sec. 170.4 What is the effect of this part on existing tribal rights? This part does not: (a) Affect the sovereign immunity from suit enjoyed by tribes; (b) Terminate or reduce the trust responsibility of the United States to tribes or individual Indians; (c) Require a tribe to assume a program relating to the IRR Program; or (d) Impede awards by other agencies of the United States or a State to tribes to administer programs under any other law. Sec. 170.5 What definitions apply to this part? AASHTO means the American Association of State Highway and Transportation Officials. Annual Funding Agreement means a negotiated agreement of the Secretary to fund, on an annual basis, the programs, functions, services, and activities transferred to a tribe under the Indian Self- Determination and Education Assistance Act, as amended. Appeal means a request by a tribe or consortium for an administrative review of an adverse agency decision. BIA means the Bureau of Indian Affairs of the Department of the Interior. BIADOT means the Bureau of Indian Affairs, Division of Transportation. BIA force account means the performance of work done by BIA employees. BIA Road System means the Bureau of Indian Affairs Road System under the IRR system. It includes those existing and proposed IRR's for which BIA has or plans to obtain legal right-of-way. BIA has the primary responsibility to improve and maintain the roads on this system. CFR means the United States Code of Federal Regulations. Construction means the supervising, inspecting, actual building, and incurrence of all costs incidental to the construction or reconstruction of an IRR transportation facility, as defined in 23 U.S.C. 101. This includes bond costs and other related costs of bonds or other debt financing instruments. It also includes costs incurred by the State in performing Federal-aid project related audits that directly benefit the Federal-aid highway program. The term includes-- (1) Locating, surveying, and mapping (including establishing temporary and permanent geodetic markers in accordance with specifications of the U.S. Geological Survey); (2) Resurfacing, restoration, and rehabilitation; (3) Acquiring rights-of-way; (4) Providing relocation assistance; acquiring replacement housing sites; and acquiring, rehabilitating, relocating, and constructing replacement housing; (5) Eliminating hazards of railway grade crossings; (6) Eliminating roadside obstacles; (7) Making improvements that facilitate and control traffic flow, such as grade separation of intersections, widening lanes, channelizing traffic, installing traffic control systems, and establishing passenger loading and unloading areas; and (8) Making capital improvements that directly facilitate an effective vehicle weight enforcement program, such as scales (fixed and portable), scale pits, scale installation, and scale houses. Construction contract means a fixed price or cost reimbursement self-determination contract for a construction project, except that such term does not include any contract-- (1) That is limited to providing planning services and construction management services (or a combination of such services); (2) For the housing improvement program or roads maintenance program of the BIA administered by the Secretary of the Interior; or (3) For the health facility maintenance and improvement program administered by the Secretary of Health and Human Services. Consultation means government-to-government communication in a timely manner by all parties about a proposed or contemplated decision in order to: (1) Secure meaningful tribal input and involvement in the decision- making process; and (2) Advise the tribe of the final decision and provide an explanation. Contract means a self-determination contract as defined in section 4(j) of ISDEAA or a procurement document issued under Federal or tribal procurement acquisition regulations. Days means calendar days, except where the last day of any time period specified in this part falls on a Saturday, Sunday, or a Federal holiday, the period shall carry over to the next business day unless otherwise prohibited by law. Design means services performed by licensed design professionals related to preparing drawings, specifications, and other design submissions specified in the contract or agreement, as well as services provided by or for licensed design professionals during the bidding/ negotiating, construction, and operational phases of the project. DOI means the Department of the Interior. [[Page 43106]] FHWA means the Federal Highway Administration of the Department of Transportation. FTA means the Federal Transit Administration of the Department of Transportation. Governmental subdivision of a tribe means a unit of a federally- recognized tribe which is authorized to participate in an IRR Program activity on behalf of the tribe. Indian means a person who is a member of a Tribe or as otherwise defined in 25 U.S.C. 450b. Indian Reservation Road (IRR) means a public road that is located within or provides access to an Indian reservation or Indian trust land, or restricted Indian land that is not subject to fee title alienation without the approval of the Federal government, or Indian or Alaska Native Villages, groups, or communities in which Indians and Alaska Natives reside, whom the Secretary of the Interior has determined are eligible for services generally available to Indians under Federal laws specifically applicable to Indians. IRR Bridge Program means the program authorized under 23 U.S.C. 202(d)(4) using IRR Program funds for the improvement of deficient IRR highway bridges. IRR Inventory means a comprehensive database of all transportation facilities eligible for IRR Program funding by tribe, reservation, BIA agency and region, Congressional district, State, and county. Other specific information collected and maintained under the IRR Program includes classification, route number, bridge number, current and future traffic volumes, maintenance responsibility, and ownership. IRR Program means a part of the Federal Lands Highway Program established in 23 U.S.C. 204 to address transportation needs of tribes. IRR Program construction funds means the pool of funds BIA distributes according to the Relative Need Distribution Factor. IRR Program funds means the funds covered in chapter 2 of title 23 U.S.C. and the associated program management costs. These funds are used for: (1) Transportation planning, research, and engineering; and (2) Construction of highways, roads, parkways, or transit facilities within or providing access to Indian lands, communities, and Alaska Native villages. IRR Program management and oversight funds means those funds authorized by Congress to pay the cost of performing IRR Program management activities. IRR System means all the roads and bridges that comprise the IRR. IRR transportation facilities means public roads, bridges, drainage structures, culverts, ferry routes, marine terminals, transit facilities, boardwalks, pedestrian paths, trails, and their appurtenances, and other transportation facilities as designated by the tribe and the Secretary. IRR Transportation Improvement Program (IRRTIP) means a list developed by BIA of projects programmed for construction in the next 3 to 5 years. ISDEAA means the Indian Self-Determination and Education Assistance Act of 1975, Public Law 93-638, as amended. Maintenance means the preservation of the entire highway, including surface, shoulders, roadsides, structures, and such traffic-control devices as are necessary for safe and efficient utilization of the highway. NBI means the national bridge inventory, which is the database of structural and appraisal data collected to fulfill the requirements of the National Bridge Inspection Standards, as defined in 23 CFR part 650, subpart C. Each State and BIA must maintain an inventory of all bridges that are subject to the NBI standards and provide this data to the Federal Highway Administration (FHWA). The NBI is maintained and monitored by the FHWA Office of Bridge Technology. Office of Self-Governance (OSG) means the office within the Office of the Assistant Secretary--Indian Affairs, Department of the Interior, that is responsible for implementing and developing tribal self- governance. Program means any program, function, service, activity, or portion thereof. Project Planning means project-related activities that precede the design phase of a transportation project. Examples of these activities are: Collecting data on traffic, accidents, or functional, safety or structural deficiencies; corridor studies; conceptual studies, environmental studies; geotechnical studies; archaeological studies; project scoping; public hearings; location analysis; preparing applications for permits and clearances; and meetings with facility owners and transportation officials. Proposed road means a road which does not currently exist and needs to be constructed. Public Authority means a Federal, State, county, town, or township, Indian tribe, municipal, or other local government or instrumentality with authority to finance, build, operate, or maintain toll or toll- free facilities. Public road means any road or street under the jurisdiction of and maintained by a public authority and open to public travel. Real Property means any interest in land together with the improvements, structures, and fixtures and appurtenances. Regionally significant project means a project that modifies a facility that serves regional transportation needs and would normally be included in the modeling of a metropolitan area's transportation network. The term includes work on principal arterial highways and all fixed guideway transit facilities that offer a significant alternative to regional highway travel. (``Regional transportation needs'' includes access to and from the area outside of the region; major planned developments such as new retail malls, sports complexes, etc.; or transportation terminations, as well as most terminals themselves). Rehabilitation means the work required to restore the structural integrity of transportation facilities as well as work necessary to correct safety defects. Relocation means the adjustment of transportation facilities and utilities required by a highway project. It includes removing and reinstalling the facility, including necessary temporary facilities; acquiring necessary right-of-way on the new location; moving, rearranging or changing the type of existing facilities; and taking any necessary safety and protective measures. It also means constructing a replacement facility that is both functionally equivalent to the existing facility and necessary for continuous operation of the utility service, the project economy, or sequence of highway construction. Relocation Services means payment and assistance authorized by the Uniform Relocation and Real Property Acquisitions Policy Act, 42 U.S.C. 4601 et seq., as amended. Rest area means an area or site established and maintained within or adjacent to the highway right-of-way or under public supervision or control for the convenience of the traveling public. Secretaries means the Secretary of the Interior and the Secretary of Transportation. Secretary means the Secretary of the Interior or her/his designee authorized to act on behalf of the Secretary. Secretary of Transportation means the Secretary of Transportation or a designee authorized to act on behalf of the Secretary. [[Page 43107]] State transportation agency means that department, commission, board, or official of any State charged by its laws with the responsibility for highway construction. The term ``State'' would be considered equivalent to ``State transportation agency'' if the context so implies. STIP means Statewide Transportation Improvement Program. It is a financially constrained, multi-year list of transportation projects. The STIP is developed under 23 U.S.C. 134 and 135, and 49 U.S.C. 5303- 5305. The Secretary of Transportation reviews and approves the STIP for each State. Transit means services, equipment, and functions associated with the public movement of people served within a community or network of communities. Transportation planning means developing land use, economic development, traffic demand, public safety, health and social strategies to meet transportation current and future needs. Tribal transportation planning funds means funds referenced in 23 U.S.C. 204(j). Tribe means any tribe, nation, band, pueblo, rancheria,colony, or community, including any Alaska Native village or regional or village corporation as defined or established under the Alaska Native Claims Settlement Act that is federally recognized by the U.S. government for special programs and services provided by the Secretary to Indians because of their status as Indians. TTIP means Tribal Transportation Improvement Program. It is a multi-year financially constrained list of proposed transportation projects developed by a tribe from the tribal priority list or the long-range transportation plan. U.S.C. means the United States Code. Sec. 170.6 Information Collection. The information collection requirements contained in this part have been approved by the Office of Management and Budget under 44 U.S.C. et seq. and assigned clearance number 1076-0161. This information collection is specifically found in subparts C and D of this part and represent a total reporting burden to the public of 31,470 hours or an average of 56.5 hours per respondent. A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. Comments and suggestions on the burden estimate or any other aspect of the form should be sent directly to the Office of Management and Budget; Attention: Interior Desk Officer; Washington, DC 20503; and a copy of the comments should be sent to the Information Collection Clearance Officer, Bureau of Indian Affairs, 1849 C Street, NW., Washington, DC 20240. Subpart B--Indian Reservation Roads Program Policy and Eligibility Consultation, Collaboration, Coordination Sec. 170.100 What do the terms ``consultation, collaboration, and coordination'' mean? (a) Consultation means government-to-government communication in a timely manner by all parties about a proposed or contemplated decision in order to: (1) Secure meaningful tribal input and involvement in the decision- making process; and (2) Advise the tribe of the final decision and provide an explanation. (b) Collaboration means that all parties involved in carrying out planning and project development work together in a timely manner to achieve a common goal or objective. (c) Coordination means that each party: (1) Shares and compares in a timely manner its transportation plans, programs, projects, and schedules with the related plans, programs, projects, and schedules of the other parties; and (2) Adjusts its plans, programs, projects, and schedules to optimize the efficient and consistent delivery of transportation projects and services. Sec. 170.101 What is the IRR Program consultation and coordination policy? (a) The IRR Program's government-to-government consultation and coordination policy is to foster and improve communication, cooperation, and coordination among tribal, Federal, state, and local governments and other transportation organizations when undertaking the following, similar, or related activities: (1) Identifying high-accident locations and locations for improving both vehicle and pedestrian safety; (2) Developing State, metropolitan, regional, IRR, and tribal transportation improvement programs that impact tribal lands, communities, and members; (3) Developing short- and long-range transportation plans; (4) Developing IRR Program transportation projects; (5) Developing environmental mitigation measures necessary to protect and/or enhance Indian lands and the environment, and counteract the impacts of the projects; (6) Developing plans or projects to replace or rehabilitate deficient IRR bridges; (7) Developing plans or projects for disaster and emergency relief response and the repair of eligible damaged IRR transportation facilities; (8) Assisting in the development of State and tribal agreements related to the IRR Program; (9) Developing and improving transit systems serving Indian lands and communities; and (10) Assisting in the submission of discretionary grant applications for State and Federal funding for IRR transportation facilities. (b) Tribes and State and Federal Government agencies may enter into intergovernmental Memoranda of Agreement (MOA) to streamline and facilitate consultation, collaboration, and coordination. Sec. 170.102 How do the Departments consult, collaborate, and coordinate with tribal governments? The Department of the Interior and the Department of Transportation operate within a government-to-government relationship with federally recognized tribes. As a critical element of this relationship, these agencies should assess the impact of Federal transportation policies, plans, projects, and programs on tribal rights and interests to ensure that these rights and concerns are appropriately considered. Sec. 170.103 What goals and principles guide the Secretaries? When undertaking transportation activities affecting tribes, the Secretaries should, to the maximum extent permitted by law: (a) Establish regular and meaningful consultation and collaboration with affected tribal governments, including facilitating the direct involvement of tribal governments in short- and long-range Federal transportation planning efforts; (b) Promote the rights of tribal governments to govern their own internal affairs; (c) Promote the rights of tribal governments to receive direct transportation services from the Federal Government or to enter into agreements to directly operate any tribally related transportation programs serving tribal members; (d) Ensure the continuation of the trust responsibility of the United States to tribes and Indian individuals; (e) Reduce the imposition of unfunded mandates upon tribal governments; [[Page 43108]] (f) Encourage flexibility and innovation in the implementation of the IRR Program; (g) Reduce, streamline, and eliminate unnecessarily restrictive transportation policies, guidelines, or procedures; (h) Ensure that tribal rights and interests are appropriately considered during program development; (i) Ensure that the IRR Program is implemented consistent with tribal sovereignty and the government-to-government relationship; and (j) Consult with, and solicit the participation of, tribes in the development of the annual BIA budget proposals. Sec. 170.104 Must the Secretary consult with tribal governments before obligating IRR Program funds? Yes. Before obligating IRR program funds on any project that is for direct service activities, the Secretary must consult with the affected tribe to determine the tribal preferences concerning the project. The Secretary must provide information in accordance with Sec. 170.600 within 30 days of the Notice of Availability of Funds publication in the Federal Register. Sec. 170.105 Are funds available for consultation, collaboration, and coordination activities? To fund consultation, collaboration, and coordination of IRR Program activities, tribes may use: (a) The tribes' IRR Program allocations; (b) Tribal Priority Allocation (TPA) funds; (c) Administration for Native Americans (ANA) funds; (d) Economic Development Administration (EDA) funds; (e) United States Department of Agriculture (USDA) Rural Development funds; (f) Community Development Block Grant (CDBG) funds; Indian Housing Block Grant (IHBG) funds; (g) Indian Health Service Tribal Management Grant (IHSTMG) funds; (h) General funds of the tribal government; and (i) Any other funds available for the purpose of consultation, collaboration, and coordination activities. Sec. 170.106 When must State governments consult with tribes? Each State must develop the State Transportation Improvement Program (STIP) in consultation with tribes and BIA in those areas under Indian tribal jurisdiction. This includes providing for a fully coordinated transportation planning process that coordinates transportation planning efforts carried out by the State with transportation planning efforts carried out by tribes. The statewide and metropolitan planning organization requirements are in 23 U.S.C. 134 and 135. Regulations can be found at 23 CFR part 450. Sec. 170.107 Should planning organizations and local governments consult with tribes when planning for transportation projects? Yes. The Department's policy is to foster and improve communication, cooperation, and coordination among metropolitan planning organizations (MPOs), regional planning organizations (RPOs), local governments, municipal governments, and tribes on transportation matters of common concern. Accordingly, planning organizations and local governments should consult with tribal governments when planning for transportation projects. Sec. 170.108 Should Indian tribes and BIA consult with States' planning organizations and local governments in the development of their IRRTIP? Yes. (a) All regionally significant IRR Program projects must be: (1) Developed in cooperation with State and metropolitan planning organizations; and (2) Included in appropriate Federal Lands Highway Program transportation improvement programs for inclusion in state and metropolitan plans. (b) BIA and tribes are encouraged to consult with States, metropolitan and regional planning organizations, and local and municipal governments, on transportation matters of common concern. Sec. 170.109 How do the Secretaries prevent discrimination or adverse impacts? In administering the IRR Program, the Secretaries ensure that nondiscrimination and environmental justice principles are integral program elements. The Secretaries consult with tribes early in the program development process to identify potential discrimination and to recommend corrective actions to avoid disproportionately high and adverse effects on tribes and Native American populations. Sec. 170.110 How can State and local governments prevent discrimination or adverse impacts? (a) Under 23 U.S.C. 134 and 135, and 23 CFR part 450, State and local government officials should consult and work with tribes early in the development of programs to: (1) Identify potential discrimination; and (2) Recommend corrective actions to avoid disproportionately high and adverse effects on tribes and Native American populations. (b) Examples of adverse effects include, but are not limited to: (1) Impeding access to tribal communities or activities; (2) Creating excessive access to culturally or religiously sensitive areas; (3) Negatively affecting natural resources, trust resources, tribal businesses, religious, and cultural sites; (4) Harming indigenous plants and animals; and (5) Impairing the ability of tribal members to engage in commercial, cultural, and religious activities. Sec. 170.111 What can a tribe do if discrimination or adverse impacts occur? If discrimination or adverse impacts occur, a tribe should take the following steps in the order listed: (a) Take reasonable steps to resolve the problem directly with the State or local government involved; (b) Contact BIA, FHWA, or the Federal Transit Authority (FTA), as appropriate, to report the problem and seek assistance in resolving the problem. Eligible Uses if IRR Program Funds Sec. 170.115 What activities may be funded with IRR Program funds? (a) IRR Program funds may be used: (1) For all of the items listed in appendix A to this subpart; (2) For other purposes identified in this part; or (3) For other purposes recommended by the IRR Program Coordinating Committee under the procedures in Appendix A to Subpart B (35) and Sec. 170.156 and approved by FHWA or BIA pursuant to Sec. 170.117. (b) Each of the items listed in Appendix A must be interpreted in a manner that permits, rather than prohibits, a proposed use of funds. Sec. 170.116 What activities are not eligible for IRR Program funding? IRR Program funds cannot be used for any of the following: (a) Routine maintenance work such as: grading shoulders and ditches; cleaning culverts; snow removal, roadside mowing, normal sign repair and replacement, painting roadway structures, and the maintaining, cleaning, or repair of bridge appurtenances; (b) Structures and erosion protection unrelated to transportation and roadways; (c) General reservation planning not involving transportation; [[Page 43109]] (d) Landscaping and irrigation systems not involving transportation programs and projects; (e) Work performed on projects that are not included on an FHWA- approved IRR Transportation Improvement Program (TIP), unless otherwise authorized by the Secretary of the Interior and the Secretary of Transportation; (f) Purchase of equipment unless authorized by Federal law or in this part; or (g) Condemnation o | |||
