[Federal Register Volume 79, Number 244 (Friday, December 19, 2014)]
[Proposed Rules]
[Pages 76192-76222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29604]



[[Page 76191]]

Vol. 79

Friday,

No. 244

December 19, 2014

Part V





Department of the Interior





-----------------------------------------------------------------------





Bureau of Indian Affairs





-----------------------------------------------------------------------





25 CFR Part 170





Tribal Transportation Program; Proposed Rule

Federal Register / Vol. 79 , No. 244 / Friday, December 19, 2014 / 
Proposed Rules

[[Page 76192]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[BIA 2014-0005; K00103 12/13 A3A10; 134D0102DR-DS5A300000-
DR.5A311.IA000113]

25 CFR Part 170

RIN 1076-AF19


Tribal Transportation Program

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would update the Tribal Transportation 
Program regulations (formerly the Indian Reservation Roads Program) to 
comply with the current surface transportation authorization, Moving 
Ahead for Progress in the 21st Century, as extended, reflect changes in 
the delivery options for the program that have occurred since the 
regulation was published in 2004, remove certain sections that were 
provided for informational purposes only, and make technical 
corrections.

DATES: Comments on this rule must be received by March 20, 2015. 
Comments on the information collections contained in this proposed 
regulation are separate from those on the substance of the rule. 
Comments on the information collection burden should be received by 
January 20, 2015 to ensure consideration, but must be received no later 
than February 17, 2015.

ADDRESSES: You may submit comments by any of the following methods:

-- Federal rulemaking portal: http://www.regulations.gov. The rule is 
listed under the agency name ``Bureau of Indian Affairs.'' The rule has 
been assigned Docket ID: BIA-2014-0005.
--Mail: Elizabeth Appel, Office of Regulatory Affairs & Collaborative 
Action, U.S. Department of the Interior, 1849 C Street NW., Washington, 
DC 20240. Include the number 1076-AF19 in the submission.
--Hand delivery: Elizabeth Appel, Office of Regulatory Affairs & 
Collaborative Action, U.S. Department of the Interior, 1849 C Street 
NW., Washington, DC 20240. Include the number 1076-AF19 in the 
submission.

    We cannot ensure that comments received after the close of the 
comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed here will not be included in the docket for this rulemaking.
    Comments on the information collections in this proposed regulation 
are separate from those on the substance of the rule. Send comments on 
the information collection burden to OMB by facsimile to (202) 395-5806 
or email to the OMB Desk Officer for the Department of the Interior at 
<a href="/cdn-cgi/l/email-protection#216e6873607e7254434c485252484e4f614e4c430f444e510f464e57"><span class="__cf_email__" data-cfemail="27686e7566787452454a4e54544e484967484a450942485709404851">[email protected]</span></a>. Please send a copy of your comments to the 
person listed in the FOR FURTHER INFORMATION CONTACT section of this 
notice.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of 
Regulatory Affairs & Collaborative Action, (202) 273-4680; 
<a href="/cdn-cgi/l/email-protection#6c090005160d0e091804420d1c1c09002c0e050d420b031a"><span class="__cf_email__" data-cfemail="ed888184978c8f889985c38c9d9d8881ad8f848cc38a829b">[email protected]</span></a>. You may review the information collection 
request online at http://www.reginfo.gov. Follow the instructions to 
review Department of the Interior collections under review by OMB.

SUPPLEMENTARY INFORMATION:

I. Executive Summary of Rule

    The proposed rule would:
    <bullet> Revise 25 CFR part 170 to comply with legislation 
governing the Tribal Transportation Program;
    <bullet> Update the regulation to reflect changes in the delivery 
options for the Tribal Transportation Program that are available to 
tribal governments;
    <bullet> Make technical corrections to clarify program-related 
responsibilities and requirements for tribal governments, the Bureau of 
Indian Affairs, and the Federal Highway Administration (FHWA); and
    <bullet> Clarify the requirements for proposed roads and access 
roads to be added to or remain in the National Tribal Transportation 
Facility Inventory (formerly known as the Indian Reservation Roads 
Inventory).
    <bullet> Remove certain sections of the current rule that were 
provided for informational purposes only while directing the reader to 
BIA or FHWA Web sites where the most current information is now 
available.
    BIA and FHWA distributed draft revisions to 25 CFR part 170 to 
tribes and published a notice in the Federal Register of consultations 
on the draft that were conducted at three locations in May of 2013. See 
78 Federal Register 21861 (April 12, 2013). Written comments were 
accepted at the consultations as well as email and mail until June 14, 
2013.
    Consultation sessions on the proposed rule will be held on the 
following dates at the following locations:

------------------------------------------------------------------------
         Meeting date              Location                Time
------------------------------------------------------------------------
January 13, 2015.............  Sacramento, CA..  9 a.m.-4:00 p.m.
January 15, 2015.............  Phoenix, AZ.....  9 a.m.-4:00 p.m.
January 27, 2015.............  Minneapolis, MN.  9 a.m.-4:00 p.m.
January 29, 2015.............  Oklahoma City,    9 a.m.-4:00 p.m.
                                OK.
February 10, 2015............  Anchorage, AK...  9 a.m.-4:00 p.m.
February 12, 2015............  Seattle, WA.....  9 a.m.-4:00 p.m.
------------------------------------------------------------------------

Meeting Agenda (All Times Local)

9:00 a.m.-9:15 a.m. Welcome and Introductions
9:15 a.m.-10:30 a.m. Review Proposed Rule--Subparts A-C
10:30 a.m.-10:45 a.m. Break
11:45 a.m.-11:45 a.m. Review Proposed Rule--Subparts D-F
11:45 a.m.-1:00 p.m. Lunch
1:00 p.m.-2:15 p.m. Continue Review--Subparts G-H
2:15 p.m.-2:30 p.m. Break
2:30 p.m.-3:45 p.m. Questions and Answers
3:45 p.m.-4:00 p.m. Closing Comments
4:00 p.m. Adjourn

II. Background

    Moving Ahead for Progress in the 21st Century Act (MAP-21), Public 
Law 112-141, a reauthorization of the surface transportation act, was 
signed into law on July 6, 2012, and became effective on October 1, 
2012. MAP-21 was extended by the Highway and Transportation Funding Act 
of 2014, Public Law 113-159 (August 8, 2014).
    Section 1119 of MAP-21 struck the existing laws governing the 
Indian Reservation Roads Program from 23 U.S.C. 201-204, and 
established the Tribal Transportation Program (TTP) under 23 U.S.C. 201 
and 202. In addition, Section 1103 of MAP-21 provided new definitions 
for terms utilized in the TTP.

[[Page 76193]]

    Section 1119 of MAP-21 created a new formula for distribution of 
TTP funds among tribes, which had the effect of overriding the existing 
Relative Need Distribution Formula (RNDF) that was published in 2004 at 
25 CFR part 170, subpart C. See 23 U.S.C. 202(b)(3). Although the RNDF 
is no longer applicable under the new TTP formula, certain historical 
aspects of the former RNDF continue to be relevant in the new TTP 
formula. MAP-21 also identified how certain roads included in the 
National Tribal Transportation Program Facility Inventory (NTTFI) 
impact funding within the new formula. See 23 U.S.C. 202(b)(1).
    The current regulation was published in the Federal Register in 
2004 (69 FR 43090, July 19, 2004). Congress later enacted the Safe, 
Accountable, Flexible and Efficient Transportation Equity Act--A Legacy 
for Users (SAFETEA-LU), Public Law 100-59 (August 10, 2005). Certain 
provisions of 25 CFR part 170 were amended as a result of SAFETEA-LU 
but the regulation was not revised at that time. The primary purpose of 
the proposed rule is to bring the regulation into compliance with MAP-
21, which amends or renders obsolete parts of the existing rule.
    There have also been significant changes in how TTP is delivered to 
tribes since 25 CFR part 170 was published in 2004, and the proposed 
rule reflects these changes. When 25 CFR part 170 was published, BIA 
delivered the IRR program either by direct service to tribes or by 
contracting with tribes to carry out certain program functions under 
the Indian Self-Determination and Education Assistance Act. (P.L. 93-
638, as amended). Under SAFETEA-LU, FHWA and the BIA developed an 
additional delivery option known as ``program agreements'' which allow 
tribes that meet certain administrative and financial management 
requirements to carry out all but the inherently Federal functions of 
the TTP. MAP-21 carried forward the authority of SAFETEA-LU in this 
area and the proposed rule incorporates these changes.
    Additionally, the proposed rule codifies the requirements that 
Proposed Roads or Access Roads must meet in order to be added to or 
remain in the NTTFI. Tribes, BIA, and FHWA have identified the lack of 
these requirements for Proposed and Access Roads to be added to or 
remain in the NTTFI as an area of concern in the current regulation for 
many years. Proposed roads are currently defined by 25 CFR 170.5 as ``a 
road which does not currently exist and needs to be constructed.'' A 
primary access route is the shortest practicable route connecting two 
points, including roads between villages, roads to landfills, roads to 
drinking water sources, roads to natural resources identified for 
economic development, and roads that provide access to intermodal 
termini, such as airports, harbors, or boat landings. See 23 U.S.C. 
202(b)(1).
    During 2012, BIA and FHWA conducted thirteen tribal consultation 
meetings throughout the country on a joint BIA and FHWA recommendation 
for changing how proposed roads and access roads would contribute to 
the RNDF for Indian Reservation Roads Program funds. See 25 CFR part 
170, subpart C. Although MAP-21 replaces the RNDF as discussed above, 
the proposed rule would clarify the requirements that proposed roads or 
access roads must meet in order to be added to or remain in the NTTFI.

III. Explanation of Revisions

Subpart A--General Provisions and Definitions

    This subpart is revised to:
    <bullet> Be consistent with the language used throughout 23 U.S.C. 
201 and 202;
    <bullet> Outline the policies, guidance manuals, directives, and 
procedures that govern the TTP under the program delivery options that 
are available to tribes; and
    <bullet> Include new and updated definitions that are used 
throughout the rule.

Subpart B--Tribal Transportation Program Policy and Eligibility

    This subpart is revised to be consistent with MAP-21 by:
    <bullet> Revising the language discussing Federal, tribal, state, 
and local governments' coordination, collaboration, and consultation 
responsibilities;
    <bullet> Updating the list of eligible uses of TTP funding and the 
point of contact information for fund eligibility requests;
    <bullet> Updating the regulation regarding cultural access roads, 
toll roads, recreation, tourism, trails, airport access roads, transit 
facilities and seasonal transportation routes;
    <bullet> Changing the name ``Indian Local Technical Assistance 
Program'' was changed to ``Tribal Technical Assistance Centers'' 
(TTACs).
    MAP-21 established a TTP safety funding set-aside, and the proposed 
rule describes the eligible uses and distribution of these funds. The 
TTP Coordinating Committee was established by the current rule. The 
proposed rule updates the responsibilities of the Committee regarding 
information dissemination requirements and scheduling of Committee 
meetings.

Subpart C--Tribal Transportation Program Funding

    This subpart is revised as to do the following:
    <bullet> Remove the chart showing the flow of TTP funds.
    <bullet> Reflect the statutory formula and methodology established 
by MAP-21 to distribute TTP funds including new formula factors, set-
asides, supplemental funding and transition period.
    <bullet> Remove the sections of the current regulation governing 
the Indian Reservation Roads Program High Priority Projects because 
Section 1123 of MAP-21 established the Tribal High Priority Projects 
Program as a separate, stand-alone program.
    <bullet> Revise how the National Tribal Transportation Facility 
Inventory (NTTFI) relates to the long-range tribal transportation 
planning process.
    <bullet> Revise the appeal process for fund distribution to be 
consistent with MAP-21.
    <bullet> Remove the appendices to Subpart C of the current 
regulation because they are not applicable to the statutory funding 
formula established by MAP-21.

Subpart D--Planning, Design, and Construction of Tribal Transportation 
Program Facilities

    This proposed subpart contains revisions to the sections involving 
NTTFI submissions, review and approval of plans, specifications and 
estimates (PS&Es). A section on the TTP Bridge Program was added to 
reflect changes as a result of the enactment of MAP-21. The appendices 
to this subpart were removed because they contained only reference 
information that is now available on BIA and FHWA Web sites.

Subpart E--Service Delivery for Tribal Transportation Program

    This subpart revises the sections involving Notice of Funds 
Availability (NOFA), Contracts and Agreements including savings. The 
Appendix to Subpart E is updated to be consistent with MAP-21.

Subpart F--Program Oversight and Accountability

    This subpart revises the stewardship and oversight roles and 
responsibilities for the TTP to reflect changes in the way the TTP is 
delivered to tribes. The current regulations regarding Program Reviews 
are moved to this subpart and

[[Page 76194]]

are updated to be consistent with MAP-21.

Subpart G--Maintenance

    This subpart is updated to reflect changes in MAP-21 and clarify 
the eligible activities funded only through TTP. The Appendix to 
Subpart G of the existing regulation was removed and that information 
that is now available on BIA and FHWA Web sites.

Subpart H--Miscellaneous

    This subpart is updated to be consistent with statutory references 
that changed due to the enactment of MAP-21. The sections involving 
Emergency Relief and Hazardous and Nuclear Waste Transportation were 
removed because they contained only reference information that is now 
available on BIA and FHWA Web sites. The section regarding the Tribal 
High Priority Projects Program was also removed because it is 
authorized under Section 1123 of MAP-21 is therefore not a part of the 
TTP.

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements. This rule is also part of the Department's commitment 
under the Executive Order to reduce the number and burden of 
regulations and provide greater notice and clarity to the public.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. It will not result in the 
expenditure by State, local, or tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year. The 
rule's requirements will not result in a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. Nor will this rule have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of U.S.-based enterprises to 
compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    Under the criteria in E.O. 12630, this rule does not affect 
individual property rights protected by the Fifth Amendment nor does it 
involve a compensable ``taking.'' A takings implication assessment is 
therefore not required.

F. Federalism (E.O. 13132)

    Under the criteria in E.O. 13132, this rule has no substantial 
direct effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of E.O. 12988. 
Specifically, this rule has been reviewed to eliminate errors and 
ambiguity and written to minimize litigation; and is written in clear 
language and contains clear legal standards.

H. Consultation With Indian Tribes (E.O. 13175)

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments,'' E.O. 13175 (59 FR 22951, November 6, 2000), and 512 DM 
2, we have evaluated the potential effects on federally recognized 
Indian tribes and Indian trust assets. During development of this 
proposed rule, the Department discussed this topic with tribal leaders, 
and will further consult specifically on the proposed rule during the 
public comment period.

I. Paperwork Reduction Act

    OMB Control Number: 1076-0161.
    Title: 25 CFR 170, Tribal Transportation Program.
    Brief Description of Collection: Some of the information such as 
the providing inventory updates (25 CFR 170.444), the development of a 
long range transportation plan (25 CFR 170.411 and 170. 412), the 
development of a tribal transportation improvement program (25 CFR 
170.421), and priority list (25 CFR 170.420) are mandatory to determine 
how funds will allocated to implement the Tribal Transportation 
Program. Some of the information, such as public hearing requirements, 
is necessary for public notification and involvement (25 CFR 170.437 
and 170.438). While other information, such as a request for exception 
from design standards (25 CFR 170.456), are voluntary.
    Type of Review: Revision of currently approved collection.
    Respondents: Federally recognized Indian Tribal governments.
    Number of Respondents: 1,349 on average (each year).
    Number of Responses: 1,349 on average (each year).
    Frequency of Response: On occasion.
    Estimated Time per Response: (See table below).
    Estimated Total Annual Hour Burden: 17,828 hours.

[[Page 76195]]



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

    OMB Control No. 1076-0161 currently authorizes the collections of 
information contained in 25 CFR part 170. If this proposed rule is 
finalized, the annual burden hours for respondents will decrease by 
approximately 1,800 hours because two previously identified information 
collection requirements have been deleted under this rule.
    You may review the information collection request online at http://www.reginfo.gov. Follow the instructions to review Department of the 
Interior collections under review by OMB. We invite comments on the 
information collection requirements in the proposed rule. You may 
submit comments to OMB by facsimile to (202) 395-5806 or you may send 
an email to the attention of the OMB Desk Officer for the Department of 
the Interior: <a href="/cdn-cgi/l/email-protection#1d52544f5c424e687f70746e6e7472735d72707f3378726d337a726b"><span class="__cf_email__" data-cfemail="642b2d36253b371106090d17170d0b0a240b09064a010b144a030b12">[email protected]</span></a>. Please send a copy of your 
comments to the person listed in the FOR FURTHER INFORMATION CONTACT 
section of this notice. Note that the request for comments on the rule 
and the request for comments on the information collection are 
separate. To best ensure consideration of your comments on the 
information collection, we encourage you to submit them by January 20, 
2015; while OMB has 60 days from the date of publication to act on the 
information collection request, OMB may choose to act on or after 30 
days. Comments on the information collection should address: (a) The 
necessity of this information collection for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (b) the accuracy of the agency's estimate of 
the burden (hours and cost) of the collection of information, including 
the validity of the methodology and assumptions used; (c) ways we could 
enhance the quality, utility and clarity of the information to be 
collected; and (d) ways we could minimize the burden of the collection 
of the information on the respondents, such as through the use of 
automated collection techniques or other forms of information 
technology. Please note that an agency may not sponsor or request, and 
an individual need not respond to, a collection of information unless 
it displays a valid OMB Control Number.

J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment because it is of an 
administrative, technical, and procedural nature.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211. A Statement of Energy Effects is not required.

L. Clarity of This Regulation

    We are required by E.O. 12866 and 12988 and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ``COMMENTS'' section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

M. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 25 CFR Part 170

    Highways and roads, Indians-lands.

    For the reasons stated in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, proposes to revise part 170 in 
Title 25 of the Code of Federal Regulations to read as follows:

PART 170--TRIBAL TRANSPORTATION PROGRAM

Subpart A--Policies, Applicability, and Definitions

Sec.
170.1 What does this part do?
170.2 What policies govern the TTP?
170.3 When do other requirements apply to the TTP?
170.4 How does this part affect existing tribal rights?
170.5 What definitions apply to this part?
170.6 Information collection.

Subpart B--Tribal Transportation Program Policy and Eligibility

Consultation, Collaboration, Coordination

170.100 What do the terms ``consultation, collaboration, and 
coordination'' mean?
170.101 What is the TTP consultation and coordination policy?
170.102 What goals and principles guide program implementation?
170.103 Is consultation with tribal governments required before 
obligating TTP funds for direct service activities?
170.104 Are funds available for consultation, collaboration, and 
coordination activities?
170.105 When must State governments consult with tribes?
170.106 Should planning organizations and local governments consult 
with tribes when planning for transportation projects?

[[Page 76196]]

170.107 Should tribes and BIA consult with planning organizations 
and local governments in developing projects?
170.108 How do the Secretaries prevent discrimination or adverse 
impacts?
170.109 How can State and local governments prevent discrimination 
or adverse impacts?
170.110 What if discrimination or adverse impacts occur?

Eligible Uses of TTP Funds

170.111 What activities may be carried out using TTP funds?
170.112 What activities are not eligible for TTP funding?
170.113 How can a tribe determine whether a new use of funds is 
allowable?

Use of TTP and Cultural Access Roads

170.114 What restrictions apply to the use of a tribal 
transportation facility?
170.115 What is a cultural access road?
170.116 Can a tribe close a cultural access road?

Seasonal Transportation Routes

170.117 Can TTP funds be used on seasonal transportation routes?

TTP Housing Access Roads

170.118 What terms apply to access roads?
170.119 Are housing access roads and housing streets eligible for 
TTP funding?

Toll, Ferry and Airport Facilities

170.120 How can tribes use Federal highway funds for toll and ferry 
facilities?
170.121 Where is information about designing and operating a toll 
facility available?
170.122 When can a tribe use TTP funds for airport facilities?

Recreation, Tourism and Trails

170.123 Can a tribe use Federal funds for its recreation, tourism, 
and trails program?
170.124 How can a tribe obtain funds?
170.125 What types of activities can a recreation, tourism, and 
trails program include?
170.126 Can roads be built in roadless and wild areas?

Highway Safety Functions

170.127 What funds are available for a tribe's highway safety 
activities?
170.128 What activities are eligible for the TTP safety funds?
170.129 How will tribes receive safety funds?
170.130 How can tribes obtain non-TTP funds to perform highway 
safety projects?

Transit Facilities

170.131 How do tribes identify transit needs?
170.132 What Federal funds are available for a tribe's transit 
program?
170.133 May a tribe or BIA use TTP funds as matching funds?
170.134 What transit facilities and activities are eligible for TTP 
funding?

TTP Coordinating Committee

170.135 What is the TTP Coordinating Committee?
170.136 What are the TTP Coordinating Committee's responsibilities?
170.137 How does the TTP Coordinating Committee conduct business?

Tribal Technical Assistance Centers

170.138 What are Tribal Technical Assistance Centers?
Appendix to Subpart B--Items for Which TTP Funds May Be Used.

Subpart C--Tribal Transportation Program Funding

170.200 How do BIA and FHWA determine the TTP funding amount?
170.201 What is the statutory distribution formula for tribal 
shares?
170.202 How do BIA and FHWA determine and distribute the tribal 
supplemental program funds?
170.203 How do BIA and FHWA allocate and distribute tribal 
transportation planning funds?
170.204 What restrictions apply to TTP funds provided to tribes?
170.205 What is the timeframe for distributing TTP funds?

TTP Inventory and Long-Range Transportation Plan

170.225 How does a long-range transportation plan relate to the 
National Tribal Transportation Facility Inventory?

Formula Data Appeals

170.226 How can a tribe appeal its share calculation?

Flexible Financing

170.227 Can tribes use flexible financing for TTP projects?
170.228 Can a tribe use TTP funds to leverage other funds or pay 
back loans?
170.229 Can a tribe apply for loans or credit from a State 
infrastructure bank?
170.230 How long must a project financed through flexible financing 
remain on a TTPTIP?

Subpart D--Planning, Design, and Construction of Tribal Transportation 
Program Facilities

Transportation Planning

170.400 What is the purpose of transportation planning?
170.401 What are BIA's and FHWA's roles in transportation planning?
170.402 What is the tribal role in transportation planning?
170.403 What TTP funds can be used for transportation planning?
170.404 Can tribes use transportation planning funds for other 
activities?
170.405 How must tribes use planning funds?
170.406-170.409 [Reserved].
170.410 What is the purpose of tribal long-range transportation 
planning?
170.411 What should a long-range transportation plan include?
170.412 How is the tribal TTP long-range transportation plan 
developed and approved?
170.413 What is the public role in developing the long-range 
transportation plan?
170.414 How is the tribal long-range transportation plan used and 
updated?
170.415 What are pre-project planning and project identification 
studies?
170.420 What is the tribal priority list?

Transportation Improvement Programs

170.421 What is the Tribal Transportation Improvement Program 
(TTIP)?
170.422 What is the TTP Transportation Improvement Program (TTPTIP)?
170.423 How are projects placed on the TTPTIP?
170.424 How does the public participate in developing the TTPTIP?
170.425 How do BIA and FHWA conduct the annual update to the TTPTIP?
170.426 How is the TTPTIP approved?
170.427 How can a tribe amend an approved TTPTIP?
170.428 How is the State Transportation Improvement Program related 
to the TTPTIP?

Public Hearings

170.435 When is a public hearing required?
170.436 How are public hearings for TTP planning and projects 
funded?
170.437 If there is no hearing, how must BIA, FHWA, or a tribe 
inform the public?
170.438 How must BIA, FHWA, or a tribe inform the public when a 
hearing is held?
170.439 How is a public hearing conducted?
170.440 How can the public learn the results of a public hearing?
170.441 Can a decision resulting from a hearing be appealed?

TTP Facility Inventory

170.442 What is the National Tribal Transportation Facility 
Inventory?
170.443 What is required to successfully include a proposed 
transportation facility in the NTTFI?
170.444 How is the NTTFI updated?
170.445 What is a strip map?
170.446 What minimum attachments are required for an NTTFI 
submission?

Environmental and Archeological Requirements

170.450 What archeological and environmental requirements must the 
TTP meet?
170.451 Can TTP funds be used for archeological and environmental 
compliance?
170.452 When can TTP funds be used for archeological and 
environmental activities?

Design

170.454 What design standards are used in the TTP?
170.455 What other factors must influence project design?
170.456 When can a tribe request an exception from the design 
standards?
170.457 Can a tribe appeal a denial?

[[Page 76197]]

Review and Approval of Plans, Specifications and Estimates

170.460 What must a project package include?
170.461 May a tribe approve plans, specifications, and estimates?
170.463 What if a design deficiency is identified?

Construction and Construction Monitoring

170.470 Which construction standards must tribes use?
170.471 How are projects administered?
170.472 What construction records must tribes and BIA keep?
170.473 When is a project complete?
170.474 Who conducts the project closeout?

Management Systems

170.502 Are nationwide management systems required for the TTP?

Bridge Program

170.510 What funds are available to address bridge activities?
170.511 What activities are eligible for Tribal Transportation 
Facility Bridge funds?
170.512 How will Tribal Transportation Facility Bridge funds be made 
available to the tribes?
170.513 When and how are bridge inspections performed?
170.514 Who reviews bridge inspection reports?

Subpart E--Service Delivery for Tribal Transportation Program

Funding Process

170.600 What must BIA include in the notice of funds availability?
170.602 If a tribe incurs unforeseen construction costs, can it get 
additional funds?

Miscellaneous Provisions

170.605 May BIA or FHWA use force-account methods in the TTP?
170.606 How do legislation and procurement requirements affect the 
TTP?
170.607 Can a tribe use its allocation of TTP funds for contract 
support costs?
170.608 Can a tribe pay contract support costs from DOI or BIA 
appropriations?
170.609 Can a tribe receive additional TTP funds for start-up 
activities?

Contracts and Agreements

170.610 What TTP functions may a tribe assume?
170.611 What special provisions apply to ISDEAA contracts and 
agreements?
170.612 Can non-contractible functions and activities be included in 
contracts or agreements?
170.614 Can a tribe receive funds before BIA publishes the final 
notice of funding availability?
170.615 Can a tribe receive advance payments for non-construction 
activities under the TTP?
170.616 How are payments made to tribes if additional funds are 
available?
170.617 May a tribe include a contingency in its proposal budget?
170.618 Can a tribe keep savings resulting from project 
administration?
170.619 Do tribal preference and Indian preference apply to TTP 
funding?
170.620 How do ISDEAA's Indian preference provisions apply?
170.621 What if a tribe doesn't perform work under a contract or 
agreement?
170.622 What TTP program, functions, services, and activities are 
subject to the self-governance construction regulations?
170.623 How are TTP projects and activities included in a self- 
governance agreement?
170.624 Is technical assistance available?
170.625 What regulations apply to waivers?
170.626 How does a tribe request a waiver of a Department of 
Transportation regulation?
Appendix to Subpart E--List of Program Functions that Cannot be 
Subcontracted

Subpart F--Program Oversight and Accountability

170.700 What is the TTP Stewardship Plan/National Business Plan?
170.701 May a direct service tribe and BIA Region sign a Memorandum 
of Understanding?
170.702 What activities may the Secretaries review and monitor?
170.703 What program reviews do the Secretaries conduct?
170.704 What happens when the review process identifies areas for 
improvement?

Subpart G--Maintenance Programs

170.800 What funds are available for maintenance activities?
170.801 Can maintenance funds be used to implement TTP 
transportation facilities?
170.802 Can a tribe perform road maintenance?
170.803 To what standards must a TTP transportation facility be 
maintained?
170.804 What if maintenance funding is inadequate?
170.805 What maintenance activities are eligible for TTP funding?

Subpart H--Miscellaneous Provisions

Reporting Requirements and Indian Preference

170.910 What information on the TTP or projects must BIA or FHWA 
provide to tribes?
170.911 Are Indians entitled to employment and training preferences?
170.912 Does Indian employment preference apply to Federal-aid 
Highway Projects?
170.913 Do tribal-specific employment rights and contract preference 
laws apply?
170.914 What is the difference between tribal preference and Indian 
preference?
170.915 May tribal employment taxes or fees be included in a TTP 
project budget?
170.916 May tribes impose taxes or fees on those performing TTP 
services?
170.917 Can tribes receive direct payment of tribal employment taxes 
or fees?
170.918 What applies to the Secretaries collection of data under the 
TTP?

Tribal Transportation Departments

170.930 What is a tribal transportation department?
170.931 Can tribes use TTP funds to pay tribal transportation 
department operating costs?
170.932 Are there other funding sources for tribal transportation 
departments?
170.933 Can tribes regulate oversize or overweight vehicles?

Resolving Disputes

170.934 Are alternative dispute resolution procedures available?
170.935 How does a direct service tribe begin the alternative 
dispute resolution process?

Other Miscellaneous Provisions

170.941 May tribes become involved in transportation research?
170.942 Can a tribe use Federal funds for transportation services 
for quality-of-life improvement programs?
170.943 What is the Tribal High Priority Projects Program?

    Authority:  Pub. L. 112-141, 23 U.S.C. 202.

PART 170--TRIBAL TRANSPORTATION PROGRAM

Subpart A--Policies, Applicability, and Definitions


Sec.  170.1  What does this part do?

    This part provides rules and a funding formula for the Department 
of the Interior (DOI), in cooperation with the Department of 
Transportation (DOT), to implement the Tribal Transportation Program 
(TTP). Included in this part are other Title 23 and Title 25 
transportation programs administered by the Secretary of the Interior 
and the Secretary of Transportation (Secretaries) and implemented by 
tribes and tribal organizations under the Indian Self- Determination 
and Education Assistance Act of 1975 (ISDEAA), as amended, program 
agreements, and other appropriate agreements.


Sec.  170.2  What policies govern the TTP?

    (a) The Secretaries' policy for the TTP is to:
    (1) Provide a uniform and consistent set of rules;
    (2) Foster knowledge of the programs by providing information about 
them and the opportunities that they create;
    (3) Facilitate tribal planning, conduct, and administration of the 
programs;
    (4) Encourage inclusion of these programs under self-determination 
contracts, self-governance agreements, program agreements, and other 
appropriate agreements;
    (5) Make available all contractible non-inherently Federal 
administrative functions under self-determination contracts, self-
governance agreements,

[[Page 76198]]

program agreements, and other appropriate agreements.
    (6) Carry out policies, procedures, and practices in consultation 
with Indian tribes to ensure the letter, spirit, and goals of Federal 
transportation programs are fully implemented.
    (b) Where this part differs from provisions in the Indian Self-
Determination and Education Assistance Act of 1975 (ISDEAA), this part 
should advance the policy of increasing tribal autonomy and discretion 
in program operation.
    (c) This part is designed to enable Indian tribes to participate in 
all contractible activities of the TTP and BIA Road Maintenance 
program. The Secretary of the Interior will afford Indian tribes the 
flexibility, information, and discretion to design roads programs under 
self-determination contracts, self-governance agreements, program 
agreements, and other appropriate agreements to meet the needs of their 
communities consistent with this part.
    (d) Programs, functions, services, and activities, regardless of 
how they are administered, are an exercise of Indian tribes' self-
determination and self-governance.
    (1) The tribe is responsible for managing the day-to-day operation 
of its contracted Federal programs, functions, services, and 
activities.
    (2) The tribe accepts responsibility and accountability to the 
beneficiaries under self-determination contracts, self-governance 
agreements, program agreements, and other appropriate agreements for:
    (i) Use of the funds; and
    (ii) Satisfactory performance of all activities funded under the 
contract or agreement.
    (3) The Secretary will continue to discharge the trust 
responsibilities to protect and conserve the trust resources of tribes 
and the trust resources of individual Indians.
    (e) The Secretary should interpret Federal laws and regulations to 
facilitate including programs covered by this part in the government-
to-government agreements authorized under ISDEAA.
    (f) The administrative functions referenced in paragraph (a)(5) of 
this section are contractible without regard to the organizational 
level within the DOI that carries out these functions. Including TTP 
administrative functions under self-determination contracts, self- 
governance agreements, program agreements or other appropriate 
agreements, does not limit or reduce the funding for any program or 
service serving any other tribe.
    (g) The Secretaries are not required to reduce funding for a tribe 
under these programs to make funds available to another tribe.
    (h) This part must be liberally construed for the benefit of tribes 
and to implement the Federal policy of self-determination and self-
governance.
    (i) Any ambiguities in this part must be construed in favor of the 
tribes to facilitate and enable the transfer of programs authorized by 
23 U.S.C. 201 and 202 and title 25 of the U.S.C.


Sec.  170.3  When do other requirements apply to the TTP?

    TTP policies, guidance, and directives apply, to the extent 
permitted by law, only if they are consistent with this part and 25 CFR 
parts 900 and 1000. See 25 CFR 900.5 for when a tribe must comply with 
other unpublished requirements.


Sec.  170.4  How does this part affect existing tribal rights?

    This part does not:
    (a) Affect tribes' sovereign immunity from suit;
    (b) Terminate or reduce the trust responsibility of the United 
States to tribes or individual Indians;
    (c) Require a tribe to assume a program relating to the TTP; or
    (d) Impede awards by other agencies of the United States or a State 
to tribes to administer programs under any other law.


Sec.  170.5  What definitions apply to this part?

    AASHTO means the American Association of State Highway and 
Transportation Officials.
    Access road as defined in 23 CFR 635.117(e) means a road that 
extends outward from the tribal boundary to a point at which it 
intersects with a road functionally classified as a collector or higher 
classification in both urban and rural areas. The maximum length of an 
Access road will not exceed 15 miles.
    Agreement means a self-determination contract, self-governance 
agreement, Program Agreement or other appropriate agreement, to fund 
and manage the programs, functions, services and activities transferred 
to a tribe.
    Appeal means a request by a tribe or consortium for an 
administrative review of an adverse agency decision.
    Asset management as defined in 23 U.S.C. 101(a)(2) means a 
strategic and systematic process of operating, maintaining, and 
improving physical assets, with a focus on both engineering and 
economic analysis based upon quality information, to identify a 
structured sequence of maintenance, preservation, repair, 
rehabilitation, and replacement actions that will achieve and sustain a 
desired state of good repair over the lifecycle of the assets at 
minimum practicable cost.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    BIADOT means the Bureau of Indian Affairs, Indian Services--
Division of Transportation--Central Office.
    BIA Force Account means the performance of work done by BIA 
employees.
    BIA Road System means the Bureau of Indian Affairs Road System 
under the National Tribal Transportation Facility Inventory (NTTFI) and 
includes only those existing and proposed facilities for which the BIA 
has or plans to obtain legal right-of-way.
    BIA System Inventory means Bureau of Indian Affairs System 
Inventory under the NTTFI that included the BIA road system, tribally 
owned public roads, and facilities not owned by an Indian tribal 
government or the BIA in the States of Oklahoma and Alaska that were 
used to generate road mileage for computation of the funding formula in 
the Indian Reservation Roads Program prior to October 1, 2004.
    BIA Transportation Facility means any of the following:
    (1) Road systems and related road appurtenances such as signs, 
traffic signals, pavement striping, trail markers, guardrails, etc.;
    (2) Highway bridges and drainage structures;
    (3) Airport runways and heliport pads, including runway lighting;
    (4) Boardwalks;
    (5) Adjacent parking areas;
    (6) Maintenance yards;
    (7) Bus stations;
    (8) System public pedestrian walkways, paths, bike and other 
trails;
    (9) Motorized vehicle trails;
    (10) Public access roads to heliports and airports;
    (11) BIA and tribal post-secondary school roads and parking lots 
built with TTP Program funds; and
    (12) Public ferry boats and boat ramps.
    CFR means the United States Code of Federal Regulations.
    Construction, as defined in 23 U.S.C. 101(a)(4), means the 
supervising, inspecting, actual building, and incurrence of all costs 
incidental to the construction or reconstruction of a tribal 
transportation facility, as defined in 23 U.S.C. 101(a)(31). The term 
includes--
    (1) Preliminary engineering, engineering, and design-related 
services directly relating to the construction of a tribal 
transportation facility project, including engineering, design, project 
development and management, construction project management and 
inspection, surveying, mapping

[[Page 76199]]

(including the establishment of temporary and permanent geodetic 
control under specifications of the National Oceanic and Atmospheric 
Administration), and architectural-related services;
    (2) Reconstruction, resurfacing, restoration, rehabilitation, and 
preservation;
    (3) Acquisition of rights-of-way;
    (4) Relocation assistance, acquisition of replacement housing 
sites, and acquisition and rehabilitation, relocation, and construction 
of replacement housing;
    (5) Elimination of hazards of railway-highway grade crossings;
    (6) Elimination of roadside hazards;
    (7) Improvements that directly facilitate and control traffic flow, 
such as grade separation of intersections, widening of lanes, 
channelization of traffic, traffic control systems, and passenger 
loading and unloading areas; and
    (8) Capital improvements that directly facilitate an effective 
vehicle weight enforcement program, such as scales (fixed and 
portable), scale pits, scale installation, and scale houses.
    Construction contract means a fixed price or cost reimbursement 
self- determination contract for a construction project or an eligible 
TTP funded road maintenance project, except that such term does not 
include any contract--
    (1) That is limited to providing planning services and construction 
management services (or a combination of such services);
    (2) For the housing improvement program or roads maintenance 
program of the BIA administered by the Secretary of the Interior; or
    (3) For the health facility maintenance and improvement program 
administered by the Secretary of Health and Human Services.
    Consultation means government-to-government communication in a 
timely manner by all parties about a proposed or contemplated decision 
in order to:
    (1) Provide meaningful tribal input and involvement in the 
decision-making process; and
    (2) Advise the tribe of the final decision and provide an 
explanation.
    Contract means a self-determination contract as defined in section 
4(j) of ISDEAA or a procurement document issued under Federal or tribal 
procurement acquisition regulations.
    Days means calendar days, except where the last day of any time 
period specified in this part falls on a Saturday, Sunday, or a Federal 
holiday, the period will carry over to the next business day unless 
otherwise prohibited by law.
    Design means services related to preparing drawings, 
specifications, estimates, and other design submissions specified in a 
contract or agreement, as well as services during the bidding/
negotiating, construction, and operational phases of the project.
    DOI means the Department of the Interior.
    DOT means the Department of Transportation.
    FHWA means the Federal Highway Administration of the Department of 
Transportation.
    Financial Constraint or Fiscal Constraint means that a plan 
(metropolitan transportation plan, TIP, or STIP) includes financial 
information demonstrating that projects can be implemented using 
committed, available, or reasonably available revenue sources, with 
reasonable assurance that the federally supported transportation system 
is adequately operated and maintained. (See 23 U.S.C. 134 and 135.)
    (1) For the TIP and the STIP, financial constraint/fiscal 
constraint applies to each program year.
    (2) Projects in air quality nonattainment and maintenance areas can 
be included in the first two years of the TIP and STIP only if funds 
are ``available'' or ``committed.'' See 23 CFR 450.104.
    FTA means the Federal Transit Administration within the Department 
of Transportation.
    Governmental subdivision of a tribe means a unit of a federally-
recognized tribe which is authorized to participate in a TTP activity 
on behalf of the tribe.
    Indian means a person who is a member of a Tribe or as otherwise 
defined in 25 U.S.C. 450b.
    ISDEAA means the Indian Self-Determination and Education Assistance 
Act of 1975, Public Law 93-638, as amended.
    Maintenance means the preservation of the tribal transportation 
facilities, including surface, shoulders, roadsides, structures, and 
such traffic-control devices as are necessary for safe and efficient 
utilization of the facility as defined in 23 U.S.C. 101(31).
    NBTI means the National Bridge and Tunnel Inventory, which is the 
database of structural and appraisal data collected to fulfill the 
requirements of the National Bridge and Tunnel Inspection Standards, as 
defined in 23 U.S.C. 144. Each State and BIA must maintain an inventory 
of all bridges and tunnels that are subject to the NBTI standards and 
provide this data to the Federal Highway Administration (FHWA).
    National Tribal Transportation Facility Inventory (NTTFI) means at 
a minimum, transportation facilities that are eligible for assistance 
under the tribal transportation program that an Indian tribe has 
requested, including facilities that meet at least one of the following 
criteria:
    (1) Were included in the Bureau of Indian Affairs system inventory 
prior to October 1, 2004.
    (2) Are owned by an Indian tribal government (``owned'' means 
having the authority to finance, build, operate, or maintain the 
facility (see 23 U.S.C. 101(a)(20)).
    (3) Are owned by the Bureau of Indian Affairs (``owned'' means 
having the authority to finance, build, operate, or maintain the 
facility (See 23 U.S.C. 101(a)(20)).
    (4) Were constructed or reconstructed with funds from the Highway 
Trust Fund under the Indian reservation roads program since 1983.
    (5) Are public roads or bridges within the exterior boundary of 
Indian reservations, Alaska Native villages, and other recognized 
Indian communities (including communities in former Indian reservations 
in the State of Oklahoma) in which the majority of residents are 
American Indians or Alaska Natives.
    (6) Are public roads within or providing access to either:
    (i) An Indian reservation or Indian trust land or restricted Indian 
land that is not subject to fee title alienation without the approval 
of the Federal Government; or
    (ii) Indian or Alaska Native villages, groups, or communities whose 
residents include Indians and Alaska Natives whom the Secretary has 
determined are eligible for services generally available to Indians 
under Federal laws applicable to Indians.
    (7) Are primary access routes proposed by tribal governments, 
including roads between villages, roads to landfills, roads to drinking 
water sources, roads to natural resources identified for economic 
development, and roads that provide access to intermodal terminals, 
such as airports, harbors, or boat landings.
    Population Adjustment Factor means a special portion of the former 
Indian Reservation Roads (IRR) Program distribution formula that was 
calculated annually and provided for broader participation in the IRR 
Program.
    Program means any program, function, service, activity, or portion 
thereof.
    Program agreement means an agreement between the tribe and 
Assistant Secretary--Indian Affairs or

[[Page 76200]]

the Administrator of the Federal Highway Administration, or their 
respective designees, that transfers all but the inherently federal 
program functions, services and activities of the Tribal Transportation 
Program to the tribe.
    Project planning means project-related activities that precede the 
design phase of a transportation project. Examples of these activities 
are: Collecting data on traffic, accidents, or functional, safety or 
structural deficiencies; corridor studies; conceptual studies, 
environmental studies; geotechnical studies; archaeological studies; 
project scoping; public hearings; location analysis; preparing 
applications for permits and clearances; and meetings with facility 
owners and transportation officials.
    Proposed road or facility means a road or facility that will serve 
public transportation needs, meets the eligibility requirements of the 
TTP, and does not currently exist.
    Public authority as defined in 23 U.S.C. 101(a)(20) means a 
Federal, State, county, town, or township, Indian tribe, municipal, or 
other local government or instrumentality with authority to finance, 
build, operate, or maintain toll or toll-free facilities.
    Public road means any road or street under the jurisdiction of and 
maintained by a public authority and open to public travel.
    Real property means any interest in land together with the 
improvements, structures, fixtures and appurtenances.
    Regionally significant project means a project (other than projects 
that may be grouped in the STIP/TIP under 23 CFR 450) that:
    (1) Is on a facility which serves regional transportation needs 
(such as access to and from the area outside of the region, major 
activity centers in the region, major planned developments such as new 
retail malls, sports complexes, etc., or transportation terminals as 
well as most terminals themselves); and
    (2) Would normally be included in the modeling of a metropolitan 
area's transportation network, including, as a minimum, all principal 
arterial highways and all fixed guideway transit facilities that offer 
a significant alternative to regional highway travel.
    Rehabilitation means the work required to restore the structural 
integrity of transportation facilities as well as work necessary to 
correct safety defects.
    Relative Need Distribution Factor means a mathematical formula used 
for distributing construction funds under the former Indian Reservation 
Roads Program.
    Relocation means the adjustment of transportation facilities and 
utilities required by a highway project. It includes removing and 
reinstalling the facility, including necessary temporary facilities; 
acquiring necessary right-of-way on the new location; moving, 
rearranging or changing the type of existing facilities; and taking any 
necessary safety and protective measures. It also means constructing a 
replacement facility that is both functionally equivalent to the 
existing facility and necessary for continuous operation of the utility 
service, the project economy, or sequence of highway construction.
    Relocation services means payment and assistance authorized by the 
Uniform Relocation and Real Property Acquisitions Policy Act, 42 U.S.C. 
4601 et seq., as amended.
    Rest area means an area or site established and maintained within 
or adjacent to the highway right-of-way or under public supervision or 
control for the convenience of the traveling public.
    Seasonal transportation route means a non-recreational 
transportation route in the national tribal transportation facility 
inventory such as snowmobile trails, ice roads, and overland winter 
roads that provide access to Indian communities or villages and may not 
be open for year-round use.
    Secretaries means the Secretary of the Interior and the Secretary 
of Transportation or designees authorized to act on their behalf.
    Secretary means the Secretary of the Interior or a designee 
authorized to act on the Secretary's behalf.
    Secretary of Transportation means the Secretary of Transportation 
or a designee authorized to act on behalf of the Secretary.
    State Transportation Department as defined in 23 U.S.C. 101(a)(28) 
means that department, commission, board, or official of any State 
charged by its laws with the responsibility for highway construction.
    STIP means Statewide Transportation Improvement Program. It is a 
financially constrained, multi-year list of transportation projects. 
The STIP is developed under 23 U.S.C. 134 and 135, and 49 U.S.C. 5303-
5305. The Secretary of Transportation reviews and approves the STIP for 
each State.
    Transit means services, equipment, and functions associated with 
the public movement of people served within a community or network of 
communities provided by a tribe or other public authority using Federal 
funds.
    Transportation planning means developing land use, economic 
development, traffic demand, public safety, health and social 
strategies to meet transportation current and future needs.
    Tribal road system means the tribally owned roads under the 
National Tribal Transportation Facility Inventory (NTTFI). For the 
purposes of fund distribution as defined in 23 U.S.C. 202(b), the 
tribal road system includes only those existing and proposed facilities 
that are approved and included in the NTTFI as of fiscal year 2012.
    Tribal transit program means the planning, administration, 
acquisition, and operation and maintenance of a system associated with 
the public movement of people served within a community or network of 
communities on or near tribal lands.
    Tribal Transportation Program (TTP) means a program established in 
Section 1119 of Moving Ahead for Progress in the 21st Century (MAP-21), 
Public Law 112-141 (July 6, 2012), and codified in 23 U.S.C. 201 and 
202 to address transportation needs of tribes.
    Tribal Transportation Facility means a public highway, road, 
bridge, trail, or transit system that is located on or provides access 
to tribal land and appears on the national tribal transportation 
facility inventory described in 23 U.S.C. 202(b)(1).
    Tribal Transportation Facility Bridge Program means the program 
authorized and defined under 23 U.S.C. 202(d) and set forth in 23 CFR 
part 661 that uses TTP funds for the improvement of deficient bridges.
    Tribe means any tribe, nation, band, pueblo, rancheria, colony, or 
community, including any Alaska Native village or regional or village 
corporation as defined or established under the Alaska Native Claims 
Settlement Act, that is federally recognized by the U.S. government for 
special programs and services provided by the Secretary to Indians 
because of their status as Indians.
    TTIP means Tribal Transportation Improvement Program. It is a 
multi-year list of proposed transportation projects developed by a 
tribe from the tribal priority list or the long-range transportation 
plan.
    TTP formula funds means the pool of funds made available to tribes 
under 23 U.S.C. 202(b)(3).
    TTP funds means the funds authorized under 23 U.S.C. 201 and 202.
    TTP planning funds means funds referenced in 23 U.S.C. 202(c)(1).
    TTP Program Management and Oversight (PM&O) funds means those funds 
authorized by 23U.S.C 202(a)(6)

[[Page 76201]]

to pay the cost of carrying out inherently Federal program management 
and oversight, and project-related administrative expenses activities.
    TTP System means all of the facilities eligible for inclusion in 
the National Tribal Transportation Facility Inventory.
    TTPTIP means Tribal Transportation Program Transportation 
Improvement Program. It is a financially constrained prioritized list 
of transportation projects and activities eligible for TTP funding 
covering a period of 4 years that is developed by BIA and FHWA based on 
the TTIP or tribal priority list. It is required for projects and 
activities to be eligible for funding under Title 23 U.S.C. and Title 
49 U.S.C. Chapter 53. The Secretary of Transportation reviews and 
approves the TTPTIP and distributes copies to each State for inclusion 
in their respective STIPs without further action.
    U.S.C. means the United States Code.


Sec.  170.6  Information collection.

    The information collection requirements contained in this part have 
been approved by the Office of Management and Budget under 44 U.S.C. et 
seq. and assigned control number 1076-0161. A Federal agency may not 
conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number. Comments and suggestions on the burden estimate or any 
other aspect of the information collection should be sent to the 
Information Collection Clearance Officer, Bureau of Indian Affairs, 
1849 C Street NW., Washington, DC 20240.

Subpart B--Tribal Transportation Program Policy and Eligibility

Consultation, Collaboration, Coordination


Sec.  170.100  What do the terms ``consultation,'' ``collaboration,'' 
and ``coordination'' mean?

    (a) Consultation means government-to-government communication in a 
timely manner by all parties about a proposed or contemplated decision 
in order to:
    (1) Secure meaningful tribal input and involvement in the decision-
making process; and
    (2) Advise the tribe of the final decision and provide an 
explanation.
    (b) Collaboration means that all parties involved in carrying out 
planning and project development work together in a timely manner to 
achieve a common goal or objective.
    (c) Coordination means that each party:
    (1) Shares and compares in a timely manner its transportation 
plans, programs, projects, and schedules with the related plans, 
programs, projects, and schedules of the other parties; and
    (2) Adjusts its plans, programs, projects, and schedules to 
optimize the efficient and consistent delivery of transportation 
projects and services.


Sec.  170.101  What is the TTP consultation and coordination policy?

    (a) The TTP's government-to-government consultation and 
coordination policy is to foster and improve communication, 
cooperation, and coordination among tribal, Federal, State, and local 
governments and other transportation organizations when undertaking the 
following, similar, or related activities:
    (1) Identifying high-accident locations and locations for improving 
both vehicle and pedestrian safety;
    (2) Developing State, metropolitan, regional, TTP, and tribal 
transportation improvement programs that impact tribal lands, 
communities, and members;
    (3) Developing short and long-range transportation plans;
    (4) Developing TTP transportation projects;
    (5) Developing environmental mitigation measures necessary to 
protect and/or enhance Indian lands and the environment, and counteract 
the impacts of the projects;
    (6) Developing plans or projects to carry out the Tribal 
Transportation Facility Bridge Program identified in 23 U.S.C. 202(d);
    (7) Developing plans or projects for disaster and emergency relief 
response and the repair of eligible damaged TTP transportation 
facilities;
    (8) Assisting in the development of State and tribal agreements 
related to the TTP;
    (9) Developing and improving transit systems serving Indian lands 
and communities;
    (10) Assisting in the submission of discretionary grant 
applications for State and Federal funding for TTP transportation 
facilities; and
    (11) Developing plans and projects for the Safety funding 
identified in 23 U.S.C. 202(e).
    (b) Tribes and State and Federal Government agencies may enter into 
intergovernmental Memoranda of Agreement to streamline and facilitate 
consultation, collaboration, and coordination.
    (c) DOI and DOT operate within a government-to-government 
relationship with federally recognized tribes. As a critical element of 
this relationship, these agencies assess the impact of Federal 
transportation policies, plans, projects, and programs on tribal rights 
and interests to ensure that these rights and concerns are 
appropriately considered.


Sec.  170.103  What goals and principles guide program implementation?

    When undertaking transportation activities affecting tribes, the 
Secretaries should, to the maximum extent permitted by law:
    (a) Establish regular and meaningful consultation and collaboration 
with affected tribal governments, including facilitating the direct 
involvement of tribal governments in short- and long-range Federal 
transportation planning efforts;
    (b) Promote the rights of tribal governments to govern their own 
internal affairs;
    (c) Promote the rights of tribal governments to receive direct 
transportation services from the Federal Government or to enter into 
agreements to directly operate any tribally related transportation 
programs serving tribal members;
    (d) Ensure the continuation of the trust responsibility of the 
United States to tribes and Indian individuals;
    (e) Reduce the imposition of unfunded mandates upon tribal 
governments;
    (f) Encourage flexibility and innovation in the implementation of 
the TTP;
    (g) Reduce, streamline, and eliminate unnecessarily restrictive 
transportation policies, guidelines, or procedures;
    (h) Ensure that tribal rights and interests are appropriately 
considered during program development;
    (i) Ensure that the TTP is implemented consistent with tribal 
sovereignty and the government-to-government relationship; and
    (j) Consult with, and solicit the participation of, tribes in the 
development of the annual BIA budget proposals.


Sec.  170.103  Is consultation with tribal governments required before 
obligating TTP funds for direct service activities?

    Yes. Consultation with tribal governments is required before 
obligating TTP funds for direct service activities. Before obligating 
TTP funds on any project for direct service activities, the Secretary 
must:
    (a) Consult with the affected tribe to determine tribal preferences 
concerning the program, project, or activity; and

[[Page 76202]]

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


Sec.  170.104  Are funds available for consultation, collaboration, and 
coordination activities?

    Yes. Funds are available for consultation, collaboration, and 
coordination activities. To fund consultation, collaboration, and 
coordination of TTP activities, tribes may use:
    (a) The tribes' TTP allocations;
    (b) Tribal Priority Allocation funds;
    (c) Administration for Native Americans funds;
    (d) Economic Development Administration funds;
    (e) United States Department of Agriculture Rural Development 
funds;
    (f) Community Development Block Grant funds;
    (g) Indian Housing Block Grant funds;
    (h) Indian Health Service Tribal Management Grant funds;
    (i) General funds of the tribal government; and
    (j) Any other funds available for the purpose of consultation, 
collaboration, and coordination activities.


Sec.  170.105  When must State governments consult with tribes?

    As identified in 23 U.S.C. 134 and 135, States will develop their 
State Transportation Improvement Program (STIP) in consultation with 
tribes and the Secretary in those areas under Indian tribal 
jurisdiction. This includes providing for a process that coordinates 
transportation planning efforts carried out by the State with similar 
efforts carried out by tribes. Regulations governing STIPs can be found 
at 23 CFR part 450.


Sec.  170.106  Should planning organizations and local governments 
consult with tribes when planning for transportation projects?

    Yes. Planning organizations and local governments should consult 
with tribes when planning for transportation projects. The Department's 
policy is to foster and improve communication, cooperation, and 
coordination among metropolitan planning organizations (MPOs), regional 
planning organizations (RPOs), local governments, municipal 
governments, and tribes on transportation matters of common concern. 
Accordingly, planning organizations, and local governments should 
consult with tribal governments when planning for transportation 
projects.


Sec.  170.107  Should tribes and BIA consult with planning 
organizations and local governments in developing projects?

    Yes. Tribes and BIA should consult with planning organizations and 
local governments in developing projects.
    (a) All regionally significant TTP projects must be:
    (1) Developed in cooperation with State and metropolitan planning 
organizations; and
    (2) Included in a FHWA approved TTPTIP for inclusion in State and 
metropolitan plans.
    (b) BIA and tribes are encouraged to consult with States, 
metropolitan and regional planning organizations, and local and 
municipal governments on transportation matters of common concern.


Sec.  170.108  How do the Secretaries prevent discrimination or adverse 
impacts?

    The Secretaries ensure that non-discrimination and environmental 
justice principles are integral TTP program elements. The Secretaries 
consult with tribes early in the program development process to 
identify potential discrimination and to recommend corrective actions 
to avoid disproportionately high and adverse effects on tribes and 
Native American populations.


Sec.  170.109  How can State and local governments prevent 
discrimination or adverse impacts?

    (a) Under 23 U.S.C. 134 and 135, and 23 CFR part 450, State and 
local government officials will consult and work with tribes in the 
development of programs to:
    (1) Identify potential discrimination; and
    (2) Recommend corrective actions to avoid disproportionately high 
and adverse effects on tribes and Native American populations.
    (b) Examples of adverse effects include, but are not limited to:
    (1) Impeding access to tribal communities or activities;
    (2) Creating excessive access to culturally or religiously 
sensitive areas;
    (3) Negatively affecting natural resources, trust resources, tribal 
businesses, religious, and cultural sites;
    (4) Harming indigenous plants and animals; and
    (5) Impairing the ability of tribal members to engage in 
commercial, cultural, and religious activities.


Sec.  170.110  What if discrimination or adverse impacts occur?

    If discrimination or adverse impacts occur, a tribe should take the 
following steps in the order listed:
    (a) Take reasonable steps to resolve the problem directly with the 
State or local government involved; and
    (b) Contact BIA, FHWA, or the Federal Transit Authority (FTA), as 
appropriate, to report the problem and seek assistance in resolving the 
problem.

Eligible Uses of TTP Funds


Sec.  170.111  What activities may be carried out using TTP funds?

    TTP funds will be used to pay the cost of items identified in 23 
U.S.C. 202(a)(1). A more detailed list of eligible activities is 
available at Appendix A to this subpart. Each of the items identified 
in Appendix A must be interpreted in a manner that permits, rather than 
prohibits, a proposed use of funds.


Sec.  170.112  What activities are not eligible for TTP funding?

    TTP funds cannot be used for any of the following:
    (a) Structures and erosion protection unrelated to transportation 
and roadways;
    (b) General or tribal planning not involving transportation;
    (c) Landscaping and irrigation systems not involving transportation 
programs and projects;
    (d) Work or activities that are not listed on an FHWA-approved TTP 
Transportation Improvement Program (TTPTIP);
    (e) Purchase of construction and maintenance equipment unless 
approved by BIA and FHWA as authorized under Sec.  170.113; or
    (f) Condemnation of land for recreational trails.


Sec.  170.113  How can a tribe determine whether a new use of funds is 
allowable?

    (a) A tribe that proposes new uses of TTP funds must ask BIA or 
FHWA in writing whether the proposed use is eligible under Federal law.
    (1) In cases involving eligibility questions that refer to 25 
U.S.C., BIA will determine whether the new proposed use of TTP funds is 
allowable and provide a written response to the requesting tribe within 
45 days of receiving the written inquiry. Tribes may appeal a denial of 
a proposed use by BIA under 25 CFR part 2. The address is: Department 
of the Interior, BIA, Division of Transportation, 1849 C Street NW., MS 
4513 MIB, Washington, DC 20240.
    (2) In cases involving eligibility questions that refer to the TTP 
or 23 U.S.C., BIA will refer an inquiry to FHWA for decision. FHWA must 
provide a written response to the requesting tribe within 45 days of

[[Page 76203]]

receiving the written inquiry from the tribe. Tribes may appeal denials 
of a proposed use by the FHWA to: FHWA, 1200 New Jersey Ave. SE., 
Washington, DC 20590.
    (b) To the extent practical, the deciding agency must consult with 
the TTP Coordinating Committee before denying a request.
    (c) BIA and FHWA will:
    (1) Send copies of all eligibility determinations to the TTP 
Coordinating Committee and BIA Regional offices;
    (2) Coordinate all responses and if the requested agency fails to 
issue a decision to the requesting tribe within the required time, the 
proposed use will be deemed to be allowable for that specific project; 
and
    (3) Promptly make any final determination available on agency Web 
sites.

Use of TTP and Cultural Access Roads


Sec.  170.114  What restrictions apply to the use of a tribal 
transportation facility?

    (a) All tribal transportation facilities listed in the approved 
National Tribal Transportation Facility Inventory must be open and 
available for public use as required by 23 U.S.C. 101(a)(31). However, 
the public authority having jurisdiction over these roads or the 
Secretary, in consultation with a tribe and applicable private 
landowners, may restrict road use or close roads temporarily when:
    (1) Required for public health and safety or as provided in Sec.  
170.115.
    (2) Conducting engineering and traffic analysis to determine 
maximum speed limits, maximum vehicular size, and weight limits, and 
identify needed traffic control devices; and
    (3) Erecting, maintaining, and enforcing compliance with signs and 
pavement markings.
    (b) Consultation is not required whenever the conditions in 
paragraph (a) of this section involve immediate safety or life-
threatening situations.
    (c) A tribal transportation facility owned by a tribe or BIA may be 
permanently closed only when the tribal government and the Secretary 
agree. Once this agreement is reached, BIA must remove the facility 
from the NTTFI and it will no longer generate funding and be ineligible 
for expenditure of any TTP funds.


Sec.  170.115  What is a cultural access road?

    (a) A cultural access road is a public road that provides access to 
sites for cultural purposes as defined by tribal traditions, which may 
include, for example:
    (1) Sacred and medicinal sites;
    (2) Gathering medicines or materials such as grasses for basket 
weaving; and
    (3) Other traditional activities, including, but not limited to, 
subsistence hunting, fishing and gathering.
    (b) A tribal government may unilaterally designate a tribal road as 
a cultural access road. A cultural access road designation is an 
entirely voluntary and internal decision made by the tribe to help it 
and other public authorities manage, protect, and preserve access to 
locations that have cultural significance.
    (c) In order for a tribal government to designate a non-tribal road 
as a cultural access road, it must enter into an agreement with the 
public authority having jurisdiction over the road.
    (d) Cultural access roads may be included in the National Tribal 
Transportation System Inventory if they meet the definition of a TTP 
facility.


Sec.  170.116  Can a tribe close a cultural access road?

    (a) A tribe with jurisdiction over a cultural access road can close 
it. The tribe can do this:
    (1) During periods when the tribe or tribal members are involved in 
cultural activities; and
    (2) In order to protect the health and safety of the tribal members 
or the general public.
    (b) Cultural access roads designated through an agreement with a 
public authority may only be closed according to the provisions of the 
agreement. See Sec.  170.115(c).

Seasonal Transportation Routes


Sec.  170.117  Can TTP funds be used on seasonal transportation routes?

    Yes. A tribe may use TTP funds on seasonal transportation routes 
that are included in the national tribal transportation facility 
inventory.
    (a) Standards for seasonal transportation routes are found in Sec.  
170.454. A tribe can also develop or adopt standards that are equal to 
or exceed these standards.
    (b) To help ensure the safety of the traveling public, construction 
of a seasonal transportation route requires a right-of-way, easement, 
or use permit.

TTP Housing Access Roads


Sec.  170.118  What terms apply to access roads?

    (a) TTP housing access road means a public road on the TTP System 
that provides access to a housing cluster.
    (b) TTP housing street means a public road on the TTP System that 
provides access to adjacent homes within a housing cluster.
    (c) Housing cluster means three or more existing or proposed 
housing units.


Sec.  170.119  Are housing access roads and housing streets eligible 
for TTP funding?

    Yes. TTP housing access roads and housing streets on public rights-
of-way are eligible for construction, reconstruction, and 
rehabilitation funding under the TTP. Tribes, following the 
transportation planning process as required in subpart D, may include 
housing access roads and housing street projects on the Tribal 
Transportation Improvement Program (TTIP).

Toll, Ferry, and Airport Facilities


Sec.  170.120  How can tribes use Federal highway funds for toll and 
ferry facilities?

    (a) A tribe can use Federal-aid highway funds, including TTP funds, 
to study, design, construct, and operate toll highways, bridges, and 
tunnels, as well as ferry boats and ferry terminal facilities. The 
following table shows how a tribe can initiate construction of these 
facilities.

------------------------------------------------------------------------
   To initiate construction of . . .            A tribe must . . .
------------------------------------------------------------------------
(1) Toll highway, bridge, or tunnel....
                                         (i) Meet and follow the
                                          requirements in 23 U.S.C. 129;
                                          and.
                                         (ii) If TTP funds are used,
                                          enter into a self-governance.
(2) Ferry boat or ferry................  Meet and follow the
                                          requirements in 23 U.S.C.
                                          129(c).
------------------------------------------------------------------------

    (b) A tribe can use TTP funds to fund 100 percent of the conversion 
or construction of a toll facility.
    (c) If a tribe obtains non-TTP Federal funding for the conversion 
or construction of a toll facility, the tribe may use TTP funds to 
satisfy any matching fund requirements.

[[Page 76204]]

Sec.  170.121  Where is information about designing and operating a 
toll facility available?

    Information on designing and operating a toll highway, bridge or 
tunnel is available from the International Bridge, Tunnel and Turnpike 
Association. The Association publishes a variety of reports, 
statistics, and analyses. The Web site is located at http://www.ibtta.org. Information is also available from FHWA.


Sec.  170.122  When can a tribe use TTP funds for airport facilities?

    (a) A tribe can use TTP funds for construction of airport and 
heliport access roads, if the access roads are open to the public.
    (b) A tribe cannot use TTP funds to construct or improve runways, 
airports or heliports. Tribes can use TTP funds for maintaining airport 
runways, heliport pads and lighting under Sec.  170.805.

Recreation, Tourism, and Trails


Sec.  170.123  Can a tribe use Federal funds for its recreation, 
tourism, and trails program?

    Yes. A tribe, tribal organization, tribal consortium, or BIA may 
use TTP funds for recreation, tourism, and trails programs if the 
programs are included in the TTPTIP. Additionally, the following 
Federal programs may be possible sources of Federal funding for 
recreation, tourism, and trails projects and activities;
    (a) Federal Lands Access Program (23 U.S.C. 204);
    (b) Tribal High Priority Projects Program (Section 1123 of MAP-21);
    (c) National Highway Performance Program (23 U.S.C. 119);
    (d) Transportation Alternatives (23 U.S.C. 213);
    (e) Surface Transportation Program (23 U.S.C. 133);
    (f) Other funding from other Federal departments; and
    (g) Other funding that Congress may authorize and appropriate.


Sec.  170.124  How can a tribe obtain funds?

    (a) To receive funding for programs that serve recreation, tourism, 
and trails goals, a tribe should:
    (1) Identify a program meeting the eligibility guidelines for the 
funds and have it ready for development; and
    (2) Have a viable project ready for improvement or construction, 
including necessary permits.
    (b) Tribes seeking to obtain funding from a State under the 
programs identified in Sec.  170.123(c) through (g) should contact the 
State directly to determine eligibility, contracting opportunities, 
funding mechanisms, and project administration requirements.
    (c) In order to expend any Federal transportation funds, a tribe 
must ensure that the eligible project/program is listed on an FHWA 
approved TIP or STIP.


Sec.  170.125  What types of activities can a recreation, tourism, and 
trails program include?

    (a) The following are examples of activities that tribes and tribal 
organizations may include in a recreation, tourism, and trails program:
    (1) Transportation planning for tourism and recreation travel;
    (2) Adjacent public vehicle parking areas;
    (3) Development of tourist information and interpretative signs;
    (4) Provision for non-motorized trail activities including 
pedestrians and bicycles;
    (5) Provision for motorized trail activities including all-terrain 
vehicles, motorcycles, snowmobiles, etc.;
    (6) Construction improvements that enhance and promote safe travel 
on trails;
    (7) Safety and educational activities;
    (8) Maintenance and restoration of existing recreational trails;
    (9) Development and rehabilitation of trailside and trailhead 
facilities and trail linkage for recreational trails;
    (10) Purchase and lease of recreational trail construction and 
maintenance equipment;
    (11) Safety considerations for trail intersections;
    (12) Landscaping and scenic enhancement (see 23 U.S.C. 319);
    (13) Bicycle Transportation and pedestrian walkways (see 23 U.S.C. 
217); and
    (14) Trail access roads.
    (b) The items listed in paragraph (a) of this section are not the 
only activities that are eligible for recreation, tourism, and trails 
funding. The funding criteria may vary with the specific requirements 
of the programs.
    (c) Tribes may use TTP funds for any activity that is eligible for 
Federal funding under any provision of title 23 U.S.C.


Sec.  170.126  Can roads be built in roadless and wild areas?

    Under 25 CFR part 265, no roads can be built in an area designated 
as a roadless and wild area.

Highway Safety Functions


Sec.  170.127  What funds are available for a tribe's highway safety 
activities?

    (a) Funds are made available for a tribe's highway safety 
activities through a TTP set-aside established in 23 U.S.C. 202(e). The 
funds are to be allocated based on identification and analysis of 
highway safety issues and opportunities on tribal lands. A call for 
projects will be made annually for these funds through a Notice of 
Funding Availability published in the Federal Register.
    (b) Tribes may use their TTP funds made available through 23 U.S.C. 
202(b) for highway safety activities as well as seek grant and program 
funding from appropriate State and local agencies and private grant 
organizations.
    (c) The following programs may make funds available to tribes for 
safety projects and activities:
    (1) FHWA Highway Safety Improvement Program (HSIP) 23 U.S.C. 148;
    (2) Elimination of Hazards Relating to Railway Highway Crossings 
(23 U.S.C. 130, 23 CFR 924);
    (3) State and Community Highway Safety Grant Program;
    (4) State Traffic Safety Information System Improvement Grants 
Program;
    (5) NHTSA--Alcohol-Impaired Driving Countermeasures Incentive 
Program;
    (6) NHTSA--Occupant Protection Incentive Grant Program;
    (7) NHTSA--Child Safety and Child Booster Seat Incentive Program; 
and
    (8) BIA--Indian Highway Safety Program 25 CFR part 181;
    (9) Funding for highway safety activities from the U.S. Department 
of Health and Human Services; and
    (10) Other funding that Congress may authorize and appropriate.
    (d) A project that uses TTP funds made available under 23 U.S.C. 
202(b) or TTP set-aside funding established in 23 U.S.C. 202(e) must be 
identified on a FHWA-approved TTPTIP before any funds are expended.


Sec.  170.128  What activities are eligible for TTP safety funds?

    (a) Funds made available under 23 U.S.C. 202(e) may be used for 
projects and activities that improve safety in one or more of the 
following categories:
    (1) Planning activities;
    (2) Enforcement and emergency management;
    (3) Education; and
    (4) Engineering projects.
    (b) Eligible activities for each of the categories listed in 
paragraph (a) of this section will be included in the annual Notice of 
Funding Availability. Other activities proposed by tribes must be 
requested from BIA or FHWA under Sec.  170.113.
    (c) The BIA Indian Highway Safety Program may be another resource 
for safety funding.

[[Page 76205]]

Sec.  170.129  How will tribes receive safety funds?

    Funds available to tribes may be included in the tribe's self-
determination contracts, self-governance agreements, program 
agreements, and other appropriate agreements.


Sec.  170.130  How can tribes obtain non-TTP funds for highway safety 
projects?

    There are two methods to obtain National Highway Traffic Safety 
Administration (NHTSA) and other, non-TTP, FHWA safety funds for 
highway safety projects:
    (a) FHWA provides safety funds to BIA under 23 U.S.C. 402. BIA 
annually solicits proposals from tribes for use of these funds. 
Proposals are processed under 25 CFR part 181. Tribes may request an 
ISDEAA contract or agreement, or other appropriate agreement for these 
projects.
    (b) FHWA provides funds to the States under 23 U.S.C. 402 and 405. 
States annually solicit proposals from tribes and local governments. 
Tribes seeking to obtain funding from the States under these programs 
should contact the State directly to determine eligibility, contracting 
opportunities, funding mechanisms and project administration 
requirements.

Transit Facilities


Sec.  170.131  How do tribes identify transit needs?

    Tribes identify transit needs during the tribal transportation 
planning process (see subpart D of this part). Transit projects using 
TTP funds must be included in the FHWA-approved TTPTIP.


Sec.  170.132  What Federal funds are available for a tribe's transit 
program?

    Title 23 U.S.C. authorizes use of TTP funds for transit facilities 
as defined in this part. There are many additional sources of Federal 
funds for tribal transit programs, including the Federal programs 
listed in this section. Note that each program has its own terms and 
conditions of assistance. For further information on these programs and 
their use for transit, contact the FTA Regional Transit Assistance 
Program at www.nationalrtap.org.
    (a) Department of Transportation: Formula Grants for Public 
Transportation on Indian Reservations under 49 U.S.C. 5311.
    (b) Department of Agriculture: Community facilities loans; rural 
development loans; business and industrial loans; rural enterprise 
grants; commerce, public works and economic development grants; and 
economic adjustment assistance.
    (c) Department of Housing and Urban Development: Community 
development block grants, supportive housing, tribal housing loan 
guarantees, resident opportunity and support services.
    (d) Department of Labor: Native American employment and training, 
welfare-to-work grants.
    (e) Department of Transportation: Welfare-to-Work, Tribal 
Transportation Program, transportation and community and systems 
preservation, Federal transit capital improvement grants, public 
transportation for non-urbanized areas, capital assistance for elderly 
and disabilities transportation, education, and Even Start.
    (f) Department of Health and Human Services: Programs for Native 
American elders, community service block grants, job opportunities for 
low-income individuals, Head Start (capital or operating), 
administration for Native Americans programs, Medicaid, HIV Care 
Grants, Healthy Start, and the Indian Health Service.


Sec.  170.133  May a tribe or BIA use TTP funds as matching funds?

    TTP funds may be used to meet matching or cost participation 
requirements for any Federal or non-Federal transit grant or program.


Sec.  170.134  What transit facilities and activities are eligible for 
TTP funding?

    Transit facilities and activities eligible for TTP funding include, 
but are not limited to:
    (a) Acquiring, constructing, operating, supervising or inspecting 
new, used or refurbished equipment, buildings, facilities, buses, vans, 
water craft, and other vehicles for use in public transportation;
    (b) Transit-related intelligent transportation systems;
    (c) Rehabilitating, remanufacturing, and overhauling a transit 
vehicle;
    (d) Preventive maintenance;
    (e) Leasing transit vehicles, equipment, buildings, and facilities 
for use in mass transportation;
    (f) Third-party contracts for otherwise eligible transit facilities 
and activities;
    (g) Public transportation improvements that enhance economic and 
community development, such as bus shelters in shopping centers, 
parking lots, pedestrian improvements, and support facilities that 
incorporate other community services;
    (h) Passenger shelters, bus stop signs, and similar passenger 
amenities;
    (i) Introduction of new public transportation technology;
    (j) Provision of fixed route, demand response services, and non-
fixed route paratransit transportation services (excluding operating 
costs) to enhance access for persons with disabilities;
    (k) Radio and communication equipment to support tribal transit 
programs;
    (l) Transit; and
    (m) Any additional activities authorized by 49 U.S.C. 5311.

TTP Coordinating Committee


Sec.  170.135  What is the TTP Coordinating Committee?

    (a) Under this part, the Secretaries will establish a TTP 
Coordinating
    Committee that:
    (1) Provides input and recommendations to BIA and FHWA in 
developing TTP regulations, policies and procedures; and
    (2) Supplements government-to-government consultation by 
coordinating with and obtaining input from tribes, BIA, and FHWA.
    (b) The Committee consists of 24 tribal regional representatives 
(two from each BIA Region) and two non-voting Federal representatives 
(FHWA and BIA).
    (c) The Secretary must select the regional tribal representatives 
from nominees officially submitted by the region's tribes.
    (1) To the extent possible, the Secretary must make the selection 
so that there is representation from a broad cross-section of large, 
medium, and small tribes.
    (2) Tribal nominees must be tribal governmental officials or tribal 
employees with authority to act for the tribal government.
    (d) For purposes of continuity, the Secretary will appoint tribal 
representatives from each BIA region to 3-year terms in a manner that 
only one-third of the tribal representatives change every year.
    (e) The Secretary will provide guidance regarding replacement of 
representatives should the need arise.


Sec.  170.136  What are the TTP Coordinating Committee's 
responsibilities?

    (a) Committee responsibilities are to provide input and 
recommendations to BIA and FHWA during the development or revision of:
    (1) BIA/FHWA TTP Stewardship Plan;
    (2) TTP policy and procedures;
    (3) TTP eligible activities determination;
    (4) TTP transit policy;
    (5) TTP regulations;
    (6) TTP management systems policy and procedures; and
    (7) National tribal transportation needs.

[[Page 76206]]

    (b) The Committee may establish work groups to carry out its 
responsibilities.
    (c) The Committee also reviews and provides recommendations on TTP 
national concerns (including the implementation of this part) brought 
to its attention.
    (d) Committee members are responsible for disseminating TTP 
Coordinating Committee information and activities to tribes within 
their respective BIA Regions.


Sec.  170.137  How does the TTP Coordinating Committee conduct 
business?

    The Committee holds at least two meetings a year. In order to 
maximize participation by the tribal public, the Committee shall submit 
to the Secretary its proposed meeting dates and locations for each 
fiscal year no later than October 1st. Subject to approval by the 
Secretary, additional Committee meetings may be called with the consent 
of one-third of the Committee members, or by BIA or FHWA. The Committee 
conducts business at its meetings as follows:
    (a) A quorum consists of representation from eight BIA Regions.
    (b) The Committee will operate by consensus or majority vote, as 
determined by the Committee in its protocols.
    (c) Any Committee member can submit an agenda item to the Chair.
    (d) The Committee will work through a committee-approved annual 
work plan and budget.
    (e) Annually, the Committee must elect from among the Committee 
membership a Chair, a Vice-Chair, and other officers. These officers 
will be responsible for preparing for and conducting Committee meetings 
and summarizing meeting results. These officers will also have other 
duties that the Committee may prescribe.
    (f) The Committee must keep the Secretary and the tribes informed 
through an annual accomplishment report provided within 90 days after 
the end of each fiscal year.
    (g) The Committee's budget will be funded through the TTP 
management and oversight funds, not to exceed $150,000 annually.

Tribal Technical Assistance Centers


Sec.  170.138  What are Tribal Technical Assistance Centers?

    Tribal Technical Assistance Centers (TTAC), which are also referred 
to as Tribal Technical Assistance Program Centers are authorized under 
23 U.S.C. 504(b)(3). The centers assist tribal governments and other 
TTP participants in extending their technical capabilities by providing 
them greater access to transportation technology, training, and 
research opportunities. Complete information about the centers and the 
services they offer is available on at http://ltap.org/about/ttap.php.

Appendix to Subpart B--Items for Which TTP Funds May Be Used

    TTP funds must be used to pay the cost of those items identified 
in 23 U.S.C. 202(a)(1), including:
    (a) TTP funds can be used for the following planning and design 
activities:
    (1) Planning and design of Tribal Transportation Facilities.
    (2) Transportation planning activities, including planning for 
tourism and recreational travel.
    (3) Development, establishment, and implementation of tribal 
transportation management systems such as safety, bridge, pavement, 
and congestion management.
    (4) Tribal transportation plans and transportation improvement 
programs (TIPS).
    (5) Coordinated technology implementation program (CTIP) 
projects.
    (6) Traffic engineering and studies.
    (7) Identification and evaluation of accident prone locations.
    (8) Tribal transportation standards.
    (9) Preliminary engineering studies.
    (10) Interagency program/project formulation, coordination and 
review.
    (11) Environmental studies and archeological investigations 
directly related to transportation programs and projects.
    (12) Costs associated with obtaining permits and/or complying 
with tribal, Federal, State, and local environmental, archeological 
and natural resources regulations and standards.
    (13) Development of natural habitat and wetland conservation and 
mitigation plans, including plans authorized under the Water 
Resources Development Act of 1990, 104 Stat. 4604 (Water Resources 
Development Act).
    (14) Architectural and landscape engineering services related to 
transportation programs.
    (15) Engineering design related to transportation programs, 
including permitting activities.
    (16) Inspection of bridges and structures.
    (17) Tribal Transportation Assistance Centers (TTACs).
    (18) Safety planning, programming, studies and activities.
    (19) Tribal employment rights ordinance (TERO) fees.
    (20) Purchase or lease of advanced technological devices used 
for transportation planning and design activities such as global 
positioning units, portable weigh-in-motion systems, hand held data 
collection units, related hardware and software, etc.
    (21) Planning, design and coordination for Innovative Readiness 
Training projects.
    (22) Transportation planning and project development activities 
associated with border crossings on or affecting tribal lands.
    (23) Public meetings and public involvement activities.
    (24) Leasing or rental of equipment used in transportation 
planning or design programs.
    (25) Transportation-related technology transfer activities and 
programs.
    (26) Educational activities related to bicycle safety.
    (27) Planning and design of mitigation of damage to wildlife, 
habitat, and ecosystems caused by a transportation project.
    (28) Evaluation of community impacts such as land use, mobility, 
access, social, safety, psychological, displacement, economic, and 
aesthetic impacts.
    (29) Acquisition of land and interests in land required for 
right-of-way, including control of access thereto from adjoining 
lands, the cost of appraisals, cost of surveys, cost of examination 
and abstract of title, the cost of certificate of title, advertising 
costs, and any fees incidental to such acquisition.
    (30) Cost associated with relocation activities including 
financial assistance for displaced businesses or persons and other 
activities as authorized by law.
    (31) On the job education including classroom instruction and 
pre-apprentice training activities related to transportation 
planning and design.
    (32) Other eligible activities as approved by FHWA.
    (33) Any additional activities identified by TTP Coordinating 
Committee guidance and approved by the appropriate Secretary (see 
Sec.  170.136).
    (34) Indirect general and administrative costs; and
    (35) Other eligible activities described in this part.
    (b) TTP funds can be used for the following construction and 
improvement activities:
    (1) Construction, reconstruction, rehabilitation, resurfacing, 
restoration, and operational improvements for tribal transportation 
facilities.
    (2) Construction or improvement of tribal transportation 
facilities necessary to accommodate other transportation modes.
    (3) Construction of toll roads, highway bridges and tunnels, and 
toll and non-toll ferry boats and terminal facilities, and 
approaches thereto (except when on the Interstate System) to the 
extent permitted under 23 U.S.C. 129.
    (4) Construction of projects for the elimination of hazards at 
railway-highway crossings, including the separation or protection of 
grades at crossings, the reconstruction of existing railroad grade 
crossing structures, and the relocation of highways to eliminate 
grade crossings.
    (5) Installation of protective devices at railway-highway 
crossings.
    (6) Transit facilities, whether publicly or privately owned, 
that serve Indian reservations and other communities or that provide 
access to or are located within an Indian reservation or community 
(see Sec. Sec.  170.131 through 170.134 for additional information).
    (7) Engineered pavement overlays that add to the structural 
value and design life or increase the skid resistance of the 
pavement.
    (8) Tribally-owned, post-secondary vocational school 
transportation facilities.
    (9) Road sealing.
    (10) The placement of a double bituminous surface and chip seals 
during the construction of an approved project (as the

[[Page 76207]]

non-final course) or that form the final surface of low volume 
roads.
    (11) Seismic retrofit, replacement, rehabilitation, and painting 
of road bridges.
    (12) Application of calcium magnesium acetate, sodium acetate/
formate, or other environmentally acceptable, minimally corrosive 
anti-icing and de-icing compositions on road bridges, and approaches 
thereto and other elevated structures.
    (13) Installation of scour countermeasures for road bridges and 
other elevated structures.
    (14) Special pedestrian facilities built in lieu of streets or 
roads, where standard street or road construction is not feasible.
    (15) Standard regulatory, warning, guide, and other official 
traffic signs, including dual language signs, which comply with the 
MUTCD that are part of transportation projects. TTP funds may also 
be used on interpretive signs (signs intended for viewing only by 
pedestrians, bicyclists, and occupants of vehicles parked out of the 
flow of traffic) that are culturally relevant (native language, 
symbols, etc.) that are a part of transportation projects.
    (16) Traffic barriers and bridge rails.
    (17) Engineered spot safety improvements.
    (18) Planning and development of rest areas, recreational 
trails, parking areas, sanitary facilities, water facilities, and 
other facilities that accommodate the traveling public.
    (19) Public approach roads and interchange ramps that meet the 
definition of a Tribal Transportation Facility.
    (20) Construction of roadway lighting and traffic signals.
    (21) Adjustment or relocation of utilities directly related to 
roadway work, not required to be paid for by local utility 
companies.
    (22) Conduits crossing under the roadway to accommodate 
utilities that are part of future development plans.
    (23) Restoration of borrow and gravel pits created by projects 
funded from the TTP.
    (24) Force account and day labor work, including materials and 
equipment rental, being performed in accordance with approved plans 
and specifications.
    (25) Experimental features where there is a planned monitoring 
and evaluation schedule.
    (26) Capital and operating costs for traffic monitoring, 
management, and control facilities and programs.
    (27) Safely accommodating the passage of vehicular and 
pedestrian traffic through construction zones.
    (28) Construction engineering including contract/project 
administration, inspection, and testing.
    (29) Construction of temporary and permanent erosion control, 
including landscaping and seeding of cuts and embankments.
    (30) Landscape and roadside development features.
    (31) Marine facilities and terminals as intermodal linkages.
    (32) Construction of visitor information centers, kiosks, and 
related items.
    (33) Other appropriate public road facilities such as visitor 
centers as determined by the Secretary of Transportation.
    (34) Facilities adjacent to roadways to separate pedestrians and 
bicyclists from vehicular traffic for operational safety purposes, 
or special trails on separate rights-of-way.
    (35) Construction of pedestrian walkways and bicycle 
transportation facilities, such as a new or improved lane, path, or 
shoulder for use by bicyclists and a traffic control device, 
shelter, or parking facility for bicycles.
    (36) Facilities adjacent to roadways to separate modes of 
traffic for safety purposes.
    (37) Acquisition of scenic easements and scenic or historic 
sites provided they are part of an approved project or projects.
    (38) Debt service on bonds or other debt financing instruments 
issued to finance TTP construction and project support activities.
    (39) Any project to encourage the use of carpools and vanpools, 
including provision of carpooling opportunities to the elderly and 
individuals with disabilities, systems for locating potential riders 
and informing them of carpool opportunities, acquiring vehicles for 
carpool use, designating existing highway lanes as preferential 
carpool highway lanes, providing related traffic control devices, 
and designating existing facilities for use for preferential parking 
for carpools.
    (40) Fringe and corridor parking facilities including access 
roads, buildings, structures, equipment improvements, and interests 
in land.
    (41) Adjacent public parking areas.
    (42) Costs associated with obtaining permits and/or complying 
with tribal, Federal, state, and local environmental, archeological, 
and natural resources regulations and standards on TTP projects.
    (43) Seasonal transportation routes, including snowmobile 
trails, ice roads, overland winter roads, and trail markings. (See 
Sec.  170.117.)
    (44) Tribal fees such as employment taxes (TERO), assessments, 
licensing fees, permits, and other regulatory fees.
    (45) On the job education including classroom instruction and 
pre-apprentice training activities related to TTP construction 
projects such as equipment operations, surveying, construction 
monitoring, testing, inspection and project management.
    (46) Installation of advance technological devices on TTP 
transportation facilities such as permanent weigh-in-motion systems, 
informational signs, intelligent transportation system hardware, 
etc.
    (47) Tribal, cultural, historical, and natural resource 
monitoring, management and mitigation for transportation related 
activities.
    (48) Mitigation activities required by tribal, state, or Federal 
regulatory agencies and 42 U.S.C. 4321, et seq., the National 
Environmental Policy Act (NEPA).
    (49) Purchasing, leasing or renting of construction equipment. 
All equipment purchase request submittals must be accompanied by 
written cost analysis and approved by FHWA.
    (50) Coordination and construction materials for innovative 
readiness training projects such as the Department of Defense (DOD), 
the American Red Cross, the Federal Emergency Management Agency 
(FEMA), other cooperating Federal agencies, states and their 
political subdivisions, Tribal governments, or other appropriate 
non-governmental organizations.
    (51) Emergency repairs on tribal transportation facilities.
    (52) Public meetings and public involvement activities.
    (53) Construction of roads on dams and levees.
    (54) Transportation alternative activities as defined in 23 
U.S.C. 101(a).
    (55) Modification of public sidewalks adjacent to or within 
tribal transportation facilities.
    (56) Highway and transit safety infrastructure improvements and 
hazard eliminations.
    (57) Transportation control measures such as employer-based 
transportation management plans, including incentives, shared-ride 
services, employer sponsored programs to permit flexible work 
schedules and other activities, other than clause (xvi) listed in 
section 108(f)(1)(A) of the Clean Air Act, (42 U.S.C. 
7408(f)(1)(A)).
    (58) Necessary environmental restoration and pollution 
abatement.
    (59) Trail development and related activities as identified in 
Sec. Sec.  170.123 through 170.126.
    (60) Development of scenic overlooks and information centers.
    (61) Natural habitat and wetlands mitigation efforts related to 
TTP road and bridge projects, including:
    (i) Participation in natural habitat and wetland mitigation 
banks, including banks authorized under the Water Resources 
Development Act, and
    (ii) Contributions to tribal, statewide and regional efforts to 
conserve, restore, enhance, and create natural habitats and wetland, 
including efforts authorized under the Water Resources Development 
Act.
    (62) Mitigation of damage to wildlife, habitat and ecosystems 
caused as a result of a transportation project.
    (63) Construction of permanent fixed or moveable structures for 
snow or sand control.
    (64) Cultural access roads (see Sec.  170.115).
    (65) Other eligible items as approved by the Federal Highway 
Administration (FHWA).
    (66) Any additional activities proposed by a Tribe or the TTP 
Coordinating Committee and approved by the appropriate Secretary 
(see Sec. Sec.  170.113 and 170.136).
    (67) Other eligible activities identified in this part.
    (c) TTP funds can be used for maintenance activities as defined 
in Subpart G of this regulation.
    (d) Each of the items identified in this appendix must be 
interpreted in a manner that permits, rather than prohibits, a 
proposed use of funds.

Subpart C--Tribal Transportation Program Funding


Sec.  170.200  How do BIA and FHWA determine the TTP funding amount?

    The annual TTP funding amount available for distribution is 
determined as follows:

[[Page 76208]]

    (a) The following set-asides are applied to the tribal 
transportation program before the determination of final tribal shares:
    (1) Tribal transportation planning (23 U.S.C. 202(c));
    (2) Tribal transportation facility bridges (23 U.S.C. 202(d));
    (3) Tribal safety (23 U.S.C. 202(e));
    (4) Administrative expenses (23 U.S.C. 202(a)(6)); and
    (5) Tribal supplemental program (23 U.S.C. 202(b)(3)(C)).
    (b) After deducting the set asides identified in paragraph (a) of 
this section, on October 1 of each fiscal year, the Secretary will 
distribute the remainder authorized to be appropriated for the tribal 
transportation program among Indian tribes as follows:
    (1) For fiscal year 2014:
    (i) For each Indian tribe, 60 percent of the total relative need 
distribution factor and population adjustment factor for the fiscal 
year 2011 funding amount made available to that Indian tribe; and
    (ii) The remainder using tribal shares as described in Sec.  
170.201 and tribal supplemental funding as described in Sec.  170.202.
    (2) For fiscal year 2015:
    (i) For each Indian tribe, 40 percent of the total relative need 
distribution factor and population adjustment factor for the fiscal 
year 2011 funding amount made available to that Indian tribe; and
    (ii) The remainder using tribal shares as described in Sec.  
170.201 and tribal supplemental funding as described in Sec.  170.202.
    (3) For fiscal year 2016 and thereafter:
    (i) For each Indian tribe, 20 percent of the total relative need 
distribution factor and population adjustment factor for the fiscal 
year 2011 funding amount made available to that Indian tribe; and
    (ii) The remainder using tribal shares as described in Sec.  
170.201 and tribal supplemental funding as described in Sec.  170.202.


Sec.  170.201  What is the statutory distribution formula for tribal 
shares?

    (a) Tribal shares are determined by using the national tribal 
transportation inventory as calculated for fiscal year 2012, and the 
most recent data on American Indian and Alaska Native population within 
each Indian tribe's American Indian/Alaska Native Reservation or 
Statistical Area, as computed under the Native American Housing 
Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101 et seq.), 
in the following manner:
    (1) 27 percent in the ratio that the total eligible road mileage in 
each tribe bears to the total eligible road mileage of all American 
Indians and Alaskan Natives. For the purposes of this calculation, 
eligible road mileage will be computed using only facilities included 
in the inventory described below:
    (i) Were included in the Bureau of Indian Affairs system inventory 
prior to October 1, 2004;
    (ii) Are owned by an Indian tribal government;
    (iii) Are owned by the Bureau of Indian Affairs.
    (2) 39 percent in the ratio that the total population in each tribe 
bears to the total population of all American Indians and Alaskan 
Natives; and
    (3) 34 percent will be initially divided equally among each BIA 
Region.
    (b) The share of funds will be distributed to each Indian tribe 
within the region in the ratio that the average total relative need 
distribution factors and population adjustment factors from fiscal 
years 2005 through 2011 for a tribe bears to the average total of 
relative need distribution factors and population adjustment factors 
for fiscal years 2005 through 2011 in that region.


Sec.  170.202  How do BIA and FHWA determine and distribute the tribal 
supplemental program funds?

    (a) The total amount of funding made available for the tribal 
supplemental program is determined as follows:
    (1) If the amount made available for the tribal transportation 
program is less than or equal to $275,000,000, the tribal supplemental 
funding amount will equal 30 percent of such amount.
    (2) If the amount made available for the tribal transportation 
program exceeds $275,000,000, the tribal supplemental funding will 
equal:
    (i) $82,500,000; plus
    (ii) 12.5 percent of the amount made available for the tribal 
transportation program in excess of $275,000,000.
    (b) The tribal supplemental program funds will be distributed as 
follows:
    (1) Initially, the tribal supplemental program funding determined 
in paragraph (a) of this section will be designated among the BIA 
Regions in proportion to the regional total of tribal shares based on 
the cumulative tribal shares of all Indian tribes within the region 
under Sec.  170.201.
    (2) After paragraph (b)(1) of this section is completed, the tribal 
supplemental program funding designated for each region will be 
distributed among the tribes within the region as follows:
    (i) The Secretary will determine which tribes would be entitled 
under Sec.  170.200 to receive in a fiscal year less funding than they 
would receive in fiscal year 2011 pursuant to the relative need 
distribution factor and population adjustment factor, as described in 
25 CFR part 170, subpart C (in effect as of July 5, 2012); and
    (ii) The combined amount that such Indian tribes would be entitled 
to receive in fiscal year 2011 pursuant to such relative need 
distribution factor and population adjustment factor in excess of the 
amount that they would be entitled to receive in the fiscal year under 
Sec.  170.200.
    (c) Subject to paragraph (d) of this section, the Secretary will 
distribute a combined amount to each tribe that meets the criteria 
described in paragraph (b)(2)(i) of this section a share of funding in 
proportion to the share of the combined amount determined under 
paragraph (b)(2)(ii) of this section attributable to such Indian tribe.
    (d) A tribe may not receive under paragraph (b)(2) of this section 
and based on its tribal share under Sec.  170.200 a combined amount 
that exceeds the amount that such Indian tribe would be entitled to 
receive in fiscal year 2011 pursuant to the relative need distribution 
factor and population adjustment factor, as described in 25 CFR part 
170, subpart C.
    (e) If the amount made available for a region under paragraph 
(b)(1) of this section exceeds the amount distributed among Indian 
tribes within that region under paragraph (b)(2) of this section, The 
Secretary will distribute the remainder of such region's funding under 
paragraph (b)(1) of this section among all tribes in that region in 
proportion to the combined amount that each such tribe received under 
Sec.  170.200 and paragraphs (b), (c), and (d) of this section.


Sec.  170.203  How do BIA and FHWA allocate tribal transportation 
planning funds?

    Upon request of a tribal government and approval by the BIA 
Regional Office or FHWA, BIA or FHWA provides tribal transportation 
planning funds described in Sec.  170.200(a)(1) pro rata to the tribe's 
final percentage as determined under Sec. Sec.  170.200 through 
170.202. The tribal transportation planning funds will be distributed 
to the tribes under applicable BIA and FHWA contracting procedures.


Sec.  170.204  What restrictions apply to TTP funds provided to tribes?

    All TTP funds provided to tribes can be expended only on eligible 
activities identified in Appendix A to Subpart B, and included in an 
FHWA approved TIP per 23 U.S.C. 202(b)(4)(B).


Sec.  170.205  What is the timeframe for distributing TTP funds?

    Not later than 30 days after the date on which funds are made 
available to

[[Page 76209]]

the Secretary under this paragraph, the funds will be distributed to, 
and made available for immediate use by, eligible Indian tribes, in 
accordance with the formula for distribution of funds under the tribal 
transportation program. (See 23 U.S.C. 202(b)(4)(A).)

TTP Inventory and Long-Range Transportation Plan


Sec.  170.225  How does a long-range transportation plan relate to the 
National Tribal Transportation Inventory?

    A long-range transportation plan (LRTP) is developed using a 
uniform process that identifies the transportation needs and priorities 
of a tribe. The National Tribal Transportation Inventory NTTFI (see 
Sec.  170.442) is derived from transportation facilities identified 
through an LRTP. It is also a means for identifying projects and 
activities for the TTP and the Tribal High Priority Projects Program 
(THPPP) described in Subpart I.

Formula Data Appeals


Sec.  170.226  How can a tribe appeal its share calculation?

    (a) In calculating tribal shares, BIA and FHWA use population data 
(which may be appealed) and specific prior-year data (which may not be 
appealed). Share calculations are based upon the requirements of 23 
U.S.C. 202(b)(3)(B).
    (b) Any appeal of a tribe's population figure must be directed to 
Department of Housing and Urban Development. The population data used 
is the most recent data on American Indian and Alaska Native population 
within each Indian Tribe's American Indian/Alaska Native Reservation or 
Statistical Area. This data is computed under the Native American 
Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101 
et seq.).
    (b) Appeal processes regarding inventory submissions are found at 
Sec.  170.444(c), design standards at Sec.  170.457, and new uses of 
funds at Sec.  170.113.

Flexible Financing


Sec.  170.227  Can tribes use flexible financing for TTP projects?

    Yes. Tribes may use flexible financing in the same manner as States 
to finance TTP transportation projects, unless otherwise prohibited by 
law.
    (a) Tribes may issue bonds or enter into other debt-financing 
instruments under 23 U.S.C. 122 with the expectation of payment of TTP 
funds to satisfy the instruments.
    (b) Under 23 U.S.C. 603, the Secretary of Transportation may enter 
into an agreement for secured loans or lines of credit for TTP projects 
meeting the requirements contained in 23 U.S.C. 602. Tribes or BIA may 
service Federal credit instruments. The secured loans or lines of 
credit must be paid from tolls, user fees, payments owing to the 
obligor under a public-private partnership or other dedicated revenue 
sources.
    (c) Tribes may use TTP funds as collateral for loans or bonds to 
finance TTP projects. Upon the request of a tribe, a BIA region or FHWA 
will provide necessary documentation to banks and other financial 
institutions.


Sec.  170.228  Can a tribe use TTP funds to leverage other funds or to 
pay back loans?

    (a) A tribe can use TTP funds to leverage other funds.
    (b) A tribe can use TTP funds to pay back loans or other finance 
instruments that were used for a project that:
    (1) The tribe paid for in advance of the current year using non-TTP 
funds;
    (2) Was included in FHWA-approved TTPTIP; and
    (3) Was included in the NTTFI at the time of construction.


Sec.  170.229  Can a tribe apply for loans or credit from a State 
infrastructure bank?

    Yes. A tribe can apply for loans or credit from a State 
infrastructure bank. Upon the request of a tribe, BIA region or FHWA 
will provide necessary documentation to a State infrastructure bank to 
facilitate obtaining loans and other forms of credit for a TTP project.


Sec.  170.230  How long must a project financed through flexible 
financing remain on a TTPTIP?

    Tribes must identify each TTP project financed through flexible 
financing along with the repayment amount on their annual TTPTIP until 
the flexible financing instrument has been satisfied.

Subpart D--Planning, Design, and Construction of Tribal 
Transportation Program Facilities

Transportation Planning


Sec.  170.400  What is the purpose of transportation planning?

    The purpose of transportation planning is to address current and 
future transportation, land use, economic development, traffic demand, 
public safety, health, and social needs.


Sec.  170.401  What are BIA's and FHWA's roles in transportation 
planning?

    Except as provided in Sec.  170.402, the functions and activities 
that BIA and/or FHWA must perform for the TTP are:
    (a) Preparing, reviewing, and approving the TTPTIP;
    (b) Oversight of the NTTFI;
    (c) Performing quality assurance and validation of NTTFI data 
updates as needed;
    (d) Coordinating with States and their political subdivisions, and 
appropriate planning authorities on regionally significant TTP 
projects;
    (e) Providing technical assistance to tribal governments;
    (f) Developing TTP budgets;
    (g) Facilitating public involvement;
    (h) Participating in transportation planning and other 
transportation-related meetings;
    (i) Performing quality assurance and validation related to 
performing traffic studies;
    (j) Performing preliminary project planning or project 
identification studies;
    (k) Conducting special transportation studies;
    (l) Developing short and long-range transportation plans;
    (m) Mapping;
    (n) Developing and maintaining management systems;
    (o) Performing transportation planning for operational and 
maintenance facilities; and
    (p) Researching rights-of-way documents for project planning.


Sec.  170.402  What is the tribal role in transportation planning?

    (a) All tribes must prepare a tribal TIP (TTIP) or tribal priority 
list.
    (b) Tribes operating with a Program Agreement or BIA self-
determination contract, TTP Agreement, or Self-Governance agreement may 
assume any of the following planning functions:
    (1) Coordinating with States and their political subdivisions, and 
appropriate planning authorities on regionally significant TTP 
projects;
    (2) Preparing NTTFI data updates;
    (3) Facilitating public involvement;
    (4) Performing traffic studies;
    (5) Developing short- and long-range transportation plans;
    (6) Mapping;
    (7) Developing and maintaining tribal management systems;
    (8) Participating in transportation planning and other 
transportation related meetings;
    (9) Performing transportation planning for operational and 
maintenance facilities;
    (10) Developing TTP budgets including transportation planning cost 
estimates;
    (11) Conducting special transportation studies, as appropriate;
    (12) Researching rights-of-way documents for project planning; and
    (13) Performing preliminary project planning or project 
identification studies.

[[Page 76210]]

Sec.  170.403  What TTP funds can be used for transportation planning?

    Funds as defined in 23 U.S.C. 202(c) are allocated to an Indian 
tribal government to carry out transportation planning. Tribes may also 
identify transportation planning as a priority use for their TTP tribal 
share formula funds. In both cases, the fund source and use must be 
clearly identified on a FHWA approved TTPTIP.


Sec.  170.404  Can tribes use transportation planning funds for other 
activities?

    Yes. After completion of a tribe's annual planning activities, 
unexpended planning funds made available under 23 U.S.C. 202 (c) may be 
used on eligible projects or activities provided that they are 
identified on a FHWA approved TTPTIP.


Sec.  170.405  How must tribes use planning funds?

    TTP Program funds as defined in 23 U.S.C. 202(c) are available to a 
tribal government to support tribal transportation planning and 
associated activities, including:
    (a) Attending transportation planning meetings;
    (b) Pursuing other sources of funds; and
    (c) Developing the tribal priority list or any of the 
transportation planning functions and activities listed in Sec.  
170.402.


Sec. Sec.  170.406--170.409  [Reserved]


Sec.  170.410  What is the purpose of long-range transportation 
planning?

    (a) The purpose of long-range transportation planning is to clearly 
demonstrate a tribe's transportation needs and to develop strategies to 
meet these needs. These strategies should address future land use, 
economic development, traffic demand, public safety, and health and 
social needs. The planning process should result in a long-range 
transportation plan (LRTP).
    (b) The time horizon for a LRTP should be 20 years to match State 
transportation planning horizons.


Sec.  170.411  What should a long-range transportation plan include?

    A long-range transportation plan should include:
    (a) An evaluation of a full range of transportation modes and 
connections between modes such as highway, rail, air, and water, to 
meet transportation needs;
    (b) Trip generation studies, including determination of traffic 
generators due to land use;
    (c) Social and economic development planning to identify 
transportation improvements or needs to accommodate existing and 
proposed land use in a safe and economical fashion;
    (d) Measures that address health and safety concerns relating to 
transportation improvements;
    (e) A review of the existing and proposed transportation system to 
identify the relationships between transportation and the environment;
    (f) Cultural preservation planning to identify important issues and 
develop a transportation plan that is sensitive to tribal cultural 
preservation;
    (g) Scenic byway and tourism plans;
    (h) Measures that address energy conservation considerations;
    (i) A prioritized list of short- and long-term transportation 
needs; and
    (j) An analysis of funding alternatives to implement plan 
recommendations.


Sec.  170.412  How is the tribal TTP long-range transportation plan 
developed and approved?

    (a) The tribal TTP long-range transportation plan is developed by 
either:
    (1) A tribe working through a self-determination contract, self-
governance agreement, Program Agreement; and other appropriate 
agreement; or
    (2) BIA or FHWA upon request of, and in consultation with, a tribe. 
The tribe and BIA or FHWA need to agree on the methodology and elements 
included in development of the TTP long-range transportation plan along 
with time frames before work begins. The development of a long-range 
transportation plan on behalf of a tribe will be funded from the 
tribe's share of the TTP program funds.
    (b) During the development of the TTP long-range transportation 
plan, the tribe and BIA or FHWA will jointly conduct a midpoint review.
    (c) The public reviews a draft TTP long-range transportation plan 
as required by Sec.  170.413. The plan is further refined to address 
any issues identified during the public review process. The tribe then 
approves the TTP long-range transportation plan.


Sec.  170.413  What is the public role in developing the long-range 
transportation plan?

    BIA, FHWA, or the tribe must solicit public involvement. If there 
are no tribal policies regarding public involvement, a tribe must use 
the procedures in this section. Public involvement begins at the same 
time long-range transportation planning begins and covers the range of 
users, from stakeholders and private citizens to major public and 
private entities. Public involvement must include either meetings or 
notices, or both.
    (a) For public meetings, BIA, FHWA or a tribe must:
    (1) Advertise each public meeting in local public newspapers at 
least 15 days before the meeting date. In the absence of local public 
newspapers, BIA, FHWA, or the tribe may post notices under local 
acceptable practices;
    (2) Provide at the meeting copies of the draft long-range 
transportation plan;
    (3) Provide information on funding and the planning process; and
    (4) Provide the public the opportunity to comment, either orally or 
in writing.
    (b) For public notices, BIA, FHWA, or a tribe must:
    (1) Publish a notice in the local and tribal newspapers when the 
draft long- range transportation plan is complete. In the absence of 
local public newspapers, BIA, FHWA, or the tribe may post notices under 
local acceptable practices; and
    (2) State in the notice that the long-range transportation plan is 
available for review, where a copy can be obtained, whom to contact for 
questions, where comments may be submitted, and the deadline for 
submitting comments (normally 30 days).


Sec.  170.414  How is the tribal long-range transportation plan used 
and updated?

    The tribal government uses its TTP long-range transportation plan 
to develop transportation projects as documented in a tribal priority 
list or TTIP and to identify and justify the tribe's updates to the 
NTTFI. To be consistent with State, MPO and RPO planning practices, the 
TTP long-range transportation plan must be reviewed annually and 
updated at least every 5 years.


Sec.  170.415  What are pre-project planning and project identification 
studies?

    (a) Pre-project planning and project identification studies are 
part of overall transportation planning and includes the activities 
conducted before final project approval on the TTP Transportation 
Improvement Program (TTPTIP). These processes provide the information 
necessary to financially constrain and program a project on the four-
year TTPTIP but are not the final determination that projects will be 
designed and built. These activities include:
    (1) Preliminary project cost estimates;
    (2) Certification of public involvement;
    (3) Consultation and coordination with States and/or MPO's for 
regionally significant projects;
    (4) Preliminary needs assessments; and
    (5) Preliminary environmental and archeological reviews.

[[Page 76211]]

    (b) BIA and/or FHWA, upon request of the tribe, will work 
cooperatively with tribal, State, regional, and metropolitan 
transportation planning organizations concerning the leveraging of 
funds from non-TTP Program sources and identification of other funding 
sources to expedite the planning, design, and construction of projects 
on the TTPTIP.


Sec.  170.420  What is the tribal priority list?

    The tribal priority list is a list of all transportation projects 
that the tribe wants funded. The list:
    (a) Is not financially constrained; and
    (b) Is provided to BIA or FHWA by official tribal action, unless 
the tribal government submits a Tribal Transportation Improvement 
Program (TTIP).

Transportation Improvement Programs


Sec.  170.421  What is the Tribal Transportation Improvement Program 
(TTIP)?

    The TTIP:
    (a) Is developed from the Tribe's tribal priority list or long-
range transportation plan and must be consistent with the tribal LRTP;
    (b) Is financially constrained;
    (c) Must contain all TTP-funded projects and eligible activities 
programmed in the next 4 years and identify the implementation year of 
each project or activity. Although 23 U.S.C. 134(j)(1)(D) indicates 
that a TIP must be updated every four years, Tribes are encouraged to 
update the TIP annually to best represent the plans of the tribe;
    (d) May include other Federal, State, county, and municipal, 
transportation projects initiated by or developed in cooperation with 
the tribal government;
    (e) Must include public involvement;
    (f) Is reviewed and updated as necessary by the tribal government;
    (g) Can be changed only by the tribal government; and
    (h) After approval by the tribal government, must be forwarded to 
BIA or FHWA by resolution or by tribally authorized government action.


Sec.  170.422  What is the TTP Transportation Improvement Program?

    (a) The TTP Transportation Improvement Program (TTPTIP):
    (1) Is financially constrained;
    (2) Includes eligible projects and activities selected by tribal 
governments from TTIPs or other tribal actions;
    (3) Is organized by year, State, and tribe; and
    (4) May include projects and activities predominately funded with 
other funding sources. In these cases all fund sources are to be 
identified on the TTPTIP.
    (b) When approved by FHWA, the TTPTIP authorizes the eligibility of 
projects or activities for expenditure of TTP funds. However, all other 
requirements associated with that project or activity must be satisfied 
before expenditure actually occurs.


Sec.  170.423  How are projects placed on the TTPTIP?

    (a) BIA or FHWA coordinates with the tribe to select projects from 
the TTIP or tribal priority list for inclusion on the 4-year TTPTIP as 
follows:
    (1) Tribe, or tribe with assistance from BIA or FHWA, submits 
project and activity information as documented through pre-project 
planning or project identification studies within the financial 
constraints identified above), designating estimated dollar amounts for 
each project and activity.
    (2) Tribe submits a certification of public involvement back to BIA 
or FHWA along with a tribal resolution or tribal authorized government 
action requesting approval.
    (3) BIA/FHWA enters submitted data into the federal system 
developing the tribe's proposed TTPTIP.
    (4) Proposed TTPTIP goes through BIA/FHWA approval process. Before 
approving a project on a non-BIA or non-tribal road that is eligible 
for funds apportioned in a State under 23 U.S.C. 104, the Secretary 
will determine that the obligation of the TTP funds is in the best 
interest of the program and is supplementary to and not in lieu of the 
obligation of a fair and equitable share of the funds apportioned to 
the State under 23 U.S.C. 104.
    (5) A copy of the approved final TTPTIP is returned to Tribe.
    (b) A tribe that does not generate enough annual funding under the 
TTP Program funding formula to complete a project may either:
    (1) Enter a consortium of tribes and delegate authority to the 
consortium to develop the TTIP and tribal control schedule;
    (2) Enter into agreement with other tribes to permit completion of 
the project; or
    (3) Apply for TTPHPP funding under subpart I.
    (c) Tribes may seek flexible financing alternatives as described in 
subpart C.


Sec.  170.424  How does the public participate in developing the 
TTPTIP?

    Public involvement is required in the development of the TTPTIP.
    (a) The tribe must publish a notice in local and/or tribal 
newspapers when the draft tribal or TTPTIP is complete. In the absence 
of local public newspapers, the tribe or BIA may post notices under 
local acceptable practices. The notice must indicate where a copy can 
be obtained, contact person for questions, where comments may be 
submitted, and the deadline for submitting comments. A copy of the 
notice will be made available to BIA or FHWA upon request.
    (b) The tribe may hold public meetings at which the public may 
comment orally or in writing.
    (c) The tribe, the State transportation department, or MPO may 
conduct public involvement activities.


Sec.  170.425  How do BIA and FHWA conduct the annual update to the 
TTPTIP?

    (a) The TTPTIP annual update allows:
    (1) Changes to project schedules and amounts for projects and 
activities; and
    (2) Adding transportation projects and activities planned for the 
next 4 years.
    (b) During the first quarter of the fiscal year, tribes are 
notified of the annual update and provided with the estimated funding 
amounts for the next fiscal year, copies of the previous year TTPTIP, 
and instructions for submitting required data.
    (c) The tribe reviews any new transportation planning information, 
priority lists, and TTIP, using the procedures in Sec.  170.423, and 
forwards the documentation to BIA Regional Office or FHWA.
    (d) BIA or FHWA review all submitted information with the tribes, 
and add agreed-upon updates, including all previously approved 
amendments (see Sec.  170.427), to the TTPTIP so that the Secretaries 
can approve the new updated TTPTIP before the start of the next fiscal 
year.


Sec.  170.426  How is the TTPTIP approved?

    The approval process for the TTPTIP is:
    (a) The BIA Regional Office and FHWA work together to review and 
concur on the TTPTIPs and then forward the documentation to the 
Secretaries for review and approval;
    (b) When approved, copies of the approved TTPTIP are made available 
to FHWA, BIA Regional Offices, and tribal governments.
    (c) FHWA provides copies of the approved TTPTIP to the FHWA 
division office for transmittal to the State transportation department 
for inclusion in the State Transportation Improvement Program (STIP) 
without further action.


Sec.  170.427  How can a tribe amend an approved TTPTIP?

    (a) The current-year TTPTIP may be amended to reflect new proposed 
additional projects and activities or a significant change in available 
fiscal

[[Page 76212]]

year TTP funding. All tribal requests to BIA or FHWA for TTPTIP 
amendments must be accompanied by an amended TTIP and a tribal 
resolution or tribal authorized government action requesting the 
amendment.
    (b) BIA's regional office or FHWA will review all submitted 
information with the tribe and provide a written response (approving, 
denying, or requesting additional information) within 45 days. If the 
proposed TTPTIP amendment contains a project not listed on the current 
approved TTPTIP, BIA must submit the proposed amendment to FHWA for 
final approval.
    (c) An amendment to a previously approved TTPTIP must use the same 
public involvement process that was used to develop the original 
TTPTIP.


Sec.  170.428  How is the State Transportation Improvement Program 
related to the TTPTIP?

    FHWA will annually provide each State's transportation department 
with the most current FHWA approved TTPTIP for the Tribes within that 
State. This will ensure that approved TTPTIP updates and amendments are 
included with the STIP.

Public Hearings


Sec.  170.435  When is a public hearing required?

    The tribe, or BIA or FHWA after consultation with the appropriate 
tribe and other involved agencies, determines whether or not a public 
hearing is needed for a TTPTIP, a long-range transportation plan, or a 
project. A public hearing must be held if a project:
    (a) Is a new route or facility;
    (b) Would significantly change the layout or function of connecting 
or related roads or streets;
    (c) Would cause a substantial adverse effect on adjacent property; 
or
    (d) Is controversial or expected to be controversial in nature.


Sec.  170.436  How are public hearings for TTP planning and projects 
funded?

    Public hearings for a Tribe's TTIP or long-range transportation 
plan are funded using the tribe's funds as described in Sec.  170.403.


Sec.  170.437  If there is no hearing, how must BIA, FHWA, or a tribe 
inform the public?

    (a) When no public hearing for a TTP project is scheduled, the BIA, 
FHWA, or a Tribe must give adequate notice to the public before project 
activities are scheduled to begin. The notice should include:
    (1) Project location;
    (2) Type of improvement planned;
    (3) Dates and schedule for work;
    (4) Name and address where more information is available; and
    (5) Provisions for requesting a hearing.
    (b) If the work is not to be performed by the tribe, BIA will send 
a copy of the notice to the affected tribe.


Sec.  170.438  How must BIA, FHWA, or a tribe inform the public of when 
a hearing is held?

    (a) When BIA, FHWA, or a tribe holds a hearing under this part, it 
must notify the public of the hearing by publishing a notice with 
information about the project, how to attend the hearing, and where 
copies of documents can be obtained or viewed.
    (b) BIA or the tribe must publish the notice by:
    (1) Posting the notice and publishing it in a newspaper of general 
circulation at least 30 days before the public hearing; and,
    (2) Sending a courtesy copy of the notice to each affected tribe 
and BIA Regional Office.
    (c) A second notice for a hearing is optional.


Sec.  170.439  How is a public hearing conducted?

    (a) Presiding official. BIA or FHWA appoints a tribal or Federal 
official to preside over the public hearing. The presiding official 
must encourage a free and open discussion of the issues.
    (b) Record of hearing. The presiding official is responsible for 
compiling the official record of the hearing. A record of a hearing is 
a summary of oral testimony and all written statements submitted at the 
hearing. Additional written comments made or provided at the hearing, 
or within 5 working days of the hearing, will be made a part of the 
record.
    (c) Hearing process. (1) The presiding official explains the 
purpose of the hearing and provides an agenda;
    (2) The presiding official solicits public comments from the 
audience on the merits of TTP projects and activities; and
    (3) The presiding official informs the hearing audience of the 
appropriate procedures for a proposed TTP project or activity that may 
include, but are not limited to:
    (i) Project development activities;
    (ii) Rights-of-way acquisition;
    (iii) Environmental and archeological clearance;
    (iv) Relocation of utilities and relocation services;
    (v) Authorized payments under the Uniform Relocation Assistance and 
Real Property Acquisition Policies Act, 42 U.S.C. 4601 et seq., as 
amended;
    (vi) Draft transportation plan; and
    (vii) The scope of the project and its effect on traffic during and 
after construction.
    (d) Availability of information. Appropriate maps, plats, project 
plans, and specifications will be available at the hearing for public 
review. Appropriate officials must be present to answer questions.
    (e) Opportunity for comment. Comments are received as follows:
    (1) Oral statements at the hearing;
    (2) Written statements submitted at the hearing; and
    (3) Written statements sent to the address noted in the hearing 
notice within 5 working days following the public hearing.


Sec.  170.440  How can the public learn the results of a public 
hearing?

    Within 20 working days after the public hearing, the presiding 
official will issue and post at the hearing site a statement that:
    (a) Summarizes the results of the hearing;
    (b) Explains any needed further action;
    (c) Explains how the public may request a copy; and
    (d) Outlines appeal procedures.


Sec.  170.441  Can a decision resulting from a hearing be appealed?

    Yes. A decision resulting from the public hearing may be appealed 
under 25 CFR part 2.

TTP Facility Inventory


Sec.  170.442  What is the National Tribal Transportation Facility 
Inventory?

    (a) The National Tribal Transportation Facility Inventory (NTTFI), 
is defined under Sec.  170.5 of this part.
    (b) BIA, FHWA, or tribes can also use the NTTFI to assist in 
transportation and project planning, justify expenditures, identify 
transportation needs, maintain existing TTP facilities, and develop 
management systems.
    (c) The Secretaries may include additional transportation 
facilities in the NTTFI if the additional facilities are included in a 
uniform and consistent manner nationally.
    (d) As required by 23 U.S.C. 144, all bridges in the NTTFI will be 
inspected and recorded in the national bridge inventory administered by 
the Secretary of Transportation.


Sec.  170.443  What is required to successfully include a proposed 
transportation facility in the NTTFI?

    A proposed transportation facility is any transportation facility, 
including a highway bridge, that will serve public transportation 
needs, is eligible for

[[Page 76213]]

construction under the TTP, and does not currently exist. It must meet 
the eligibility requirements of the TTP and be open to the public when 
constructed. In order to have a proposed facility placed on the NTTFI, 
a tribe must submit all of the following to the BIADOT/FHWA Quality 
Assurance Team for consideration:
    (a) A tribal resolution or other official action identifying 
support for the facility and its placement on the NTTFI.
    (b) A copy of the tribe's long-range transportation plan (LRTP) 
containing:
    (1) A description of the current land use and identification of 
land ownership within the proposed road's corridor (including what 
public easements may be required);
    (2) A description of need and outcomes for the facility including a 
description of the project's termini; and
    (3) The sources of funding to be used for construction.
    (c) If the landowner is a public authority, documentation that the 
proposed road has been identified in their LRTP, Statewide 
Transportation Improvement Program approved by FHWA, or other published 
transportation planning documents. If the owner will be the tribe, the 
tribe must submit documentation showing an agreement regarding the 
right-of-way or a clear written statement of willingness to provide a 
right-of-way from each necessary landowner along the route.
    (d) A certification that a public involvement process was held for 
the proposed road.
    (e) Documentation that identifies the anticipated environmental 
impacts of the project as well as engineering and construction 
challenges and the funding sources that will be used during the 
planning, design, construction, and maintenance of the proposed 
facility.
    (f) Documentation identifying the entity responsible for 
maintenance of the facility after construction is completed.


Sec.  170.444  How is the NTTFI updated?

    (a) Submitting data into the NTTFI for a new facility is carried 
out on an annual basis as follows:
    (1) BIA Regional Offices provide each tribe within its region with 
a copy of the tribe's own NTTFI data during the first fiscal quarter of 
each year.
    (2) Tribes review the data and either enter the changes/updates 
into the database or submit changes/updates back to the BIA Regional 
Office by March 15. The submissions must include, at a minimum, all 
required minimum attachments (see Sec.  170.446) and authorizing 
resolutions or similar official authorizations.
    (3) The BIA Regional Office reviews each tribe's submission. If any 
errors or omissions are identified, the BIA Regional Office will return 
the submittals along with a request for corrections to the tribe no 
later than May 15. If no errors or omissions are found, the BIA 
Regional Office validates the data and forwards it to BIADOT for review 
and approval.
    (4) The tribe must correct any errors or omissions in the data 
entries or return the corrected submittals back to the BIA Regional 
Office by June 15.
    (5) Each BIA Regional Office must validate its regional data by 
July 15.
    (6) BIADOT approves the current inventory year submissions from BIA 
Regional Offices by September 30 or returns the submissions to the BIA 
Regional Office if additional work is required.
    (b) Updating the data on a facility currently listed in the NTTFI 
is carried out as follows:
    (1) At any time, a tribe may submit a request to the BIA Region 
asking for the NTTFI data of an existing facility to be updated. The 
request must include the tribe's updated data and background 
information on how and why the data was obtained. At the request of a 
tribe, FHWA may assist BIA and the tribe in updating the NTTFI data as 
required under this part.
    (2) The BIA Region must review the submitted data and respond to 
the tribe within 30 days of its receipt.
    (i) If approved, the BIA Region validates the data and forwards it 
to BIA DOT for review and approval.
    (ii) If not approved, the BIA Region returns the submittals to the 
tribe along with a detailed written explanation and supporting 
documentation of the reasons for the disapproval. The tribe must 
correct the data entries and return the corrected submittals back to 
the BIA Region.
    (3) BIADOT approves the current inventory year submissions from BIA 
Regional Offices or returns the submittals to the BIA Regional Office 
if additional work is required.
    (c) A Tribe may appeal the rejection of submitted data on a new or 
existing facility included in the NTTFI by filing a written notice of 
appeal to the Director, Bureau of Indian Affairs, with a copy to the 
BIA Regional Director.
    (d) To be included in the annual NTTFI update used for 
administrative and reporting purposes for any given fiscal year, 
submittals for new facilities and updates for existing facilities must 
be officially accepted by BIA and FHWA by September 30th of that year.


Sec.  170.445  What is a strip map?

    A strip map is a graphic representation of a section of road or 
other transportation facility being added to or modified in the NTTFI.
    (a) Each strip map submitted with an NTTFI change must:
    (1) Clearly identify the facility's location with respect to State, 
county, tribal, and congressional boundaries;
    (2) Define the overall dimensions of the facility, including 
latitude and longitude;
    (3) Include a north arrow, scale, designation of road sections, 
traffic counter locations, and other nearby transportation facilities; 
and
    (4) Include a table that provides the facility's data information 
needed for the NTTFI.
    (b) For additional information, refer to the TTP Coding Guide.


Sec.  170.446  What minimum attachments are required for an NTTFI 
submission?

    The minimum attachments required for a facility to be added into 
the NTTFI include the following.
    (a) A long-range transportation plan. Provide the plan's cover 
sheet, signature page, and page or pages that contain the description 
of route.
    (b) A tribal resolution or official authorization that refers to 
all route numbers, names, locations, lengths, construction needs, and 
ownerships.
    (c) A Strip Map. Defines or illustrates the facility's location 
with respect to State, County, Tribal, and congressional boundaries. 
See Sec.  170.445.
    (d) ADT Backup Documentation. This applies only when a request to 
change or update the ADT for a section in the official inventory. The 
request will contain raw traffic data (backup data), method and 
calculations for adjustment of raw data, map showing traffic counter 
locations or location of traffic counter can be provided within the 
strip map, and derived ADT values. If the road is proposed, the ADT 
impractical to acquire, or a current ADT does not exist, then BIADOT 
will assign a default values within the NTTFI database.
    (e) If possible, a typical or representative section photo or 
bridge profile photo.
    (f) Incidental cost verification. Provide an estimate, analysis and 
justification to verify the need of additional incidental items 
required to improve the road to an adequate standard. The analysis and 
justification must be specific to the route or facility being 
submitted.
    (g) Acknowledgement of Public Authority responsibility. This 
document can be a letter or similar notification by the public 
authority (other than the tribe

[[Page 76214]]

or BIA) of acknowledgement of responsibility for maintenance of the 
Indian Reservation Roads facility. This document will identify the 
route or facility by region, agency, reservation, route and section. It 
will identify ownership and the entity that will be responsible for the 
maintenance of the route after construction, and that the route will be 
open to the public.
    (h) For proposed roads, see 170.443 for additional required 
attachments.

Environmental and Archeological Requirements


Sec.  170.450  What archeological and environmental requirements must 
the TTP meet?

    All BIA, FHWA, and tribal work for the TTP must comply with 
cultural resource and environmental requirements under applicable 
Federal laws and regulations. A list of applicable laws and regulations 
is available in the official Tribal Transportation Program Guide on 
either the BIA transportation Web site at http://www.bia.gov/WhoWeAre/BIA/OIS/Transportation/index.htm or the Federal Lands Highway--Tribal 
Transportation Program Web site at http://flh.fhwa.dot.gov/programs/ttp/guide/.


Sec.  170.451  Can TTP funds be used for archeological and 
environmental compliance?

    Yes. For approved TTP projects, TTP funds can be used for 
environmental and archeological work consistent with Sec.  170.450 and 
applicable tribal laws for:
    (a) Road and bridge rights-of-way;
    (b) Borrow pits and aggregate pits and water sources associated 
with TTP activities staging areas;
    (c) Limited mitigation outside of the construction limits as 
necessary to address the direct impacts of the construction activity as 
determined in the environmental analysis and after consultation with 
all affected tribes and appropriate Secretaries; and
    (d) Construction easements.


Sec.  170.452  When can TTP funds be used for archeological and 
environmental activities?

    TTP funds can be used on a project's archeological and 
environmental activities only after the TTP facility is included in the 
Tribe's LRTP and the NTTFI, and the project identified on an FHWA-
approved TTPTIP.

Design


Sec.  170.454  What design standards are used in the TTP?

    (a) Depending on the nature of the project, tribes must use 
appropriate design standards approved by BIA and FHWA. A list of 
applicable design standards are available in the official Tribal 
Transportation Program guide on either the BIA transportation Web site 
at http://www.bia.gov/WhoWeAre/BIA/OIS/Transportation/index.htm or the 
Federal Lands Highway--Tribal Transportation Program Web site at http://flh.fhwa.dot.gov/programs/ttp/guide/. In addition, tribes may develop 
their own design standards that meet or exceed those required by BIA 
and FHWA.
    (b) If a tribe proposes the use of a design standard that is not 
listed in the Tribal Transportation Program Guide, the proposed 
standard must be approved by FHWA.


Sec.  170.455  What other factors must influence project design?

    The appropriate design standards must be applied to each 
construction project consistent with a minimum 20-year design life for 
highway projects and 75-year design life for highway bridges. The 
design of TTP projects must take into consideration:
    (a) The existing and planned future use of the facility in a manner 
that is conducive to safety, durability, and economy of maintenance;
    (b) The particular needs of each locality, and the environmental, 
scenic, historic, aesthetic, community, and other cultural values and 
mobility needs in a cost effective manner; and
    (c) Access and accommodation for other modes of transportation.


Sec.  170.456  When can a tribe request an exception from the design 
standards?

    (a) A tribe can request an exception from the required design 
standards from FHWA or BIA. The engineer of record must submit written 
documentation with appropriate supporting data, sketches, details, and 
justification based on engineering analysis.
    (b) FHWA or BIA can approve a project design that does not conform 
to the minimum criteria only after giving due consideration to all 
project conditions, such as:
    (1) Maximum service and safety benefits for the dollar invested;
    (2) Compatibility with adjacent features; and
    (3) Probable time before reconstruction of the project due to 
changed conditions or transportation demands.
    (c) FHWA or BIA has 30 days from receiving the request to approve 
or decline the exception.


Sec.  170.457  Can a tribe appeal a denial?

    Yes. If BIA denies a design exception request made by a tribe, the 
decision may be appealed to FHWA. Tribes may appeal the denial of a 
design exception to: FHWA Office of Federal Lands Highway, 1200 New 
Jersey Ave. SE., HFL-1, Washington, DC 20590. If FHWA denies a design 
exception, the tribe may appeal the decision Office of the FHWA 
Administrator, 1200 New Jersey Ave. SE., HOA-1, Washington, DC 20590.

Review and Approval of Plans, Specifications and Estimates


Sec.  170.460  What must a project package include?

    The tribe must submit the following project documentation to BIA or 
FHWA before the start of construction:
    (a) Plans, specifications, and estimates;
    (b) A tribal resolution or other authorized document supporting the 
project;
    (c) Certification of the required right-of-way, easement, or public 
taking documentation clearances;
    (d) Required environmental, archeological, and cultural clearances; 
and
    (e) Identification of design exceptions if used in the plans.


Sec.  170.461  May a tribe approve plans, specifications, and 
estimates?

    An Indian tribal government may approve plans, specifications and 
estimates and commence road and bridge construction with funds made 
available from the tribal transportation program through a contract, 
agreement under the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450 et seq.), or Program Agreement if the Indian tribal 
government:
    (a) Provides assurances in the contract or agreement that the 
construction will meet or exceed applicable health and safety 
standards;
    (b) Obtains advance review of the plans and specifications from a 
State-licensed civil engineer that has certified that the plans and 
specifications meet or exceed the applicable health and safety 
standards;
    (c) Provides a copy of the certification under paragraph (a) of 
this section to the Deputy Assistant Secretary for Tribal Government 
Affairs, Department of Transportation, or the Assistant Secretary--
Indian Affairs, DOI, as appropriate; and
    (d) Provides a copy of all project documentation identified in 
Sec.  170.460 to BIA or FHWA before the start of construction.


Sec.  170.463  What if a design deficiency is identified?

    If the Secretaries identify a design deficiency that may jeopardize 
public

[[Page 76215]]

health and safety if the facility is completed, they must:
    (a) Immediately notify the tribe of the design deficiency and 
request that the tribe promptly resolve the deficiency under the 
standards in Sec.  170.454; and
    (b) For a BIA-prepared PS&E package, promptly resolve the 
deficiency under the standards in Sec.  170.454 and notify the tribe of 
the required design changes.

Construction and Construction Monitoring


Sec.  170.470  Which construction standards must tribes use?

    (a) Tribes must either:
    (1) Use the approved standards referred to in Sec.  170.454; or
    (2) Request approval for any other road and highway bridge 
construction standards that are consistent with or exceed the standards 
referred to in Sec.  170.454.
    (b) For designing and building eligible intermodal projects funded 
by the TTP Program, tribes must use either:
    (1) Nationally recognized standards for comparable projects; or
    (2) Tribally adopted standards that meet or exceed nationally 
recognized standards for comparable projects.


Sec.  170.471  How are projects administered?

    (a) When a tribe carries out a TTP project, BIA or FHWA will 
monitor project performance under the requirements of 25 CFR 900.130 
and 900.131, 25 CFR 1000.243 and 1000.249, program agreements, or other 
appropriate agreements. If BIA or FHWA discovers a problem during an 
on-site monitoring visit, BIA or FHWA must promptly notify the tribe 
and, if asked, provide technical assistance.
    (b) BIA or the tribal government, as provided for under the 
contract or agreement, is responsible for day-to-day project 
inspections except for BIA monitoring under paragraph (a) of this 
section.
    (c) BIA must process substantial changes in the scope of a 
construction project in coordination with the affected tribe.
    (d) The tribe, other contractors, and BIA may perform quality 
control.
    (e) When a tribe carries out TTP programs, functions, services and 
activities under a Program Agreement or another appropriate agreement 
with BIA, FHWA and BIA will monitor performance under the executed 
Program Agreement and this part.
    (f) Only the licensed professional engineer of record may change a 
TTP project's plans, specifications, and estimates (PS&E) during 
construction.
    (1) The original approving agency must review each substantial 
change. The approving agency is the Federal, tribal, State, or local 
entity with PS&E approval authority over the project.
    (2) The approving agency must consult with the affected tribe and 
the entity having maintenance responsibility.
    (3) A change that exceeds the limits of available funding may be 
made only with the approving agency's consent.


Sec.  170.472  What construction records must tribes and BIA keep?

    The following table shows which TTP construction records BIA and 
tribes must keep and the requirements for access.

------------------------------------------------------------------------
                              Records that must be
        Record keeper                 kept           Access requirements
------------------------------------------------------------------------
(a) Tribe...................  All records required  BIA and FHWA are
                               by ISDEAA and 25      allowed access to
                               CFR 900.130-131 or    tribal TTP
                               25 CFR 1000.243 and   construction and
                               1000.249, as          approved project
                               appropriate.          specifications as
                                                     required under 25
                                                     CFR 900.130,
                                                     900.131, 25 CFR
                                                     1000.243 and
                                                     1000.249, or the
                                                     Program Agreement
                                                     as appropriate.
(b) BIA.....................  Completed daily       Upon reasonable
                               reports of            advance request by
                               construction          a tribe, BIA must
                               activities            provide reasonable
                               appropriate to the    access to records.
                               type of
                               construction it is
                               performing.
------------------------------------------------------------------------

Sec.  170.473  When is a project complete?

    A project is considered substantially complete when all work is 
completed and accepted (except for minor tasks yet to be completed 
(punch list)) and the project is open to traffic. The project is 
completed only after all the requirements of this section are met.
    (a) At the end of a construction project, the public authority, 
agency, or organization responsible for the project must make a final 
inspection. The inspection determines whether the project has been 
completed in reasonable conformity with the PS&E.
    (1) Appropriate officials from the tribe, BIA, responsible public 
authority, and FHWA should participate in the inspection, as well as 
contractors and maintenance personnel.
    (2) All project information must be made available during final 
inspection and used to develop the TTP construction project closeout 
report. Some examples of project information are: Daily diaries, weekly 
progress reports, subcontracts, subcontract expenditures, salaries, 
equipment expenditures, as-built drawings, etc.
    (b) After the final inspection, the facility owner makes final 
acceptance of the project. At this point, the tribe or BIA must 
complete a project closeout and final accounting of all TTP 
construction project expenditures under Sec.  170.474.
    (c) If 25 CFR part 169 applies to the project, all documents 
required by part 169 including, but not limited to, documentation 
attesting that the project was constructed entirely within the approved 
right-of-way must be completed.


Sec.  170.474  Who conducts the project closeout?

    The following table shows who must conduct the TTP construction 
project closeout and develop the report.

------------------------------------------------------------------------
 If the project was completed                         and the closeout
           by . . .                 then . . .       report must . . .
------------------------------------------------------------------------
(a) BIA.......................  The region         (1) Summarize the
                                 engineer or        construction project
                                 designee is        records to ensure
                                 responsible for    compliance
                                 closing out the    requirements have
                                 project and        been met;
                                 preparing the     (2) Review the bid
                                 report.            item quantities and
                                                    expenditures to
                                                    ensure reasonable
                                                    conformance with the
                                                    PS&E and
                                                    modifications;
                                                   (3) Be completed
                                                    within 120 calendar
                                                    days of the date of
                                                    acceptance of the
                                                    TTP construction
                                                    project; and
                                                   (4) Be provided to
                                                    the affected tribes
                                                    and the Secretaries.

[[Page 76216]]

 
(b) A tribe...................  Agreements         (1) Meet the
                                 negotiated under   requirements of
                                 ISDEAA, FHWA, or   ISDEAA;
                                 other             (2) Comply with 25
                                 appropriate        CFR 900.130(d) and
                                 agreements         131(b)(10) and 25
                                 specify who is     CFR 1000.249, as
                                 responsible for    applicable;
                                 closeout and      (3) Be completed
                                 preparing the      within 120 calendar
                                 report.            days of the date of
                                                    acceptance of the
                                                    project; and
                                                   (4) Be provided to
                                                    all parties
                                                    specified in the
                                                    agreements
                                                    negotiated under
                                                    ISDEAA.
------------------------------------------------------------------------

Management Systems


Sec.  170.502  Are nationwide management systems required for the TTP?

    (a) The Secretaries will, to the extent appropriate, implement 
safety, bridge, pavement, and congestion management systems for the 
Federal and tribal facilities included in the NTTFI.
    (b) A tribe may develop its own tribal management system based on 
the nationwide management system requirements in 23 CFR part 973. The 
tribe may use either TTP formula funds or transportation planning funds 
defined in 23 U.S.C. 202(c) for this purpose. The tribal system must be 
consistent with Federal management systems.

Bridge Program


Sec.  170.510  What funds are available to address bridge activities?

    Funds are made available in 23 U.S.C. 202(d) to maintain a 
nationwide priority program for improving deficient bridges eligible 
for the tribal transportation program.


Sec.  170.511  What activities are eligible for Tribal Transportation 
Facility Bridge funds?

    (a) The funds made available under 23 U.S.C. 202(d) must be used 
to:
    (1) Carry out any planning, design, engineering, preconstruction, 
construction, and inspection of a bridge project to replace, 
rehabilitate, seismically retrofit, paint, apply calcium magnesium 
acetate, sodium acetate/formate, or other environmentally acceptable, 
minimally corrosive anti-icing and deicing composition; or
    (2) Implement any countermeasure for deficient tribal 
transportation facility bridges, including multiple-pipe culverts.
    (b) Further information regarding the use and availability of these 
funds can be found at 23 CFR part 661.


Sec.  170.512  How will Tribal Transportation Facility Bridge funds be 
made available to the tribes?

    Funds made available to tribes under 23 U.S.C. 202(d) may be 
included in the tribe's self-determination contracts, self-governance 
agreements, program agreements, and other appropriate agreements.


Sec.  170.513  When and how are bridge inspections performed?

    (a) All bridges identified on the NTTFI must be inspected under 23 
U.S.C. 144.
    (b) Employees performing inspections as required by Sec.  
170.513(a) must:
    (1) Notify affected tribes and State and local governments that an 
inspection will occur;
    (2) Offer tribal and State and local governments the opportunity to 
accompany the inspectors; and
    (3) Otherwise coordinate with tribal and State and local 
governments.
    (c) The person responsible for the bridge inspection team must meet 
the qualifications for bridge inspectors as defined in 23 U.S.C. 144.


Sec.  170.514  Who reviews bridge inspection reports?

    The person responsible for the bridge inspection team must send a 
copy of the inspection report to BIADOT. BIADOT:
    (a) Reviews the report for quality assurance and works with FHWA to 
ensure the requirements of 23 U.S.C. 144 are carried out; and
    (b) Furnishes a copy of the report to the BIA Regional Office, 
which will forward the copy to the affected tribe.

Subpart E--Service Delivery for Tribal Transportation Program

Funding Process


Sec.  170.600  What must BIA include in the notice of funds 
availability?

    (a) Upon receiving the total fiscal year of TTP funding from FHWA:
    (1) BIA will send a notice of funds availability to each BIA 
Regional Office and FHWA that includes the total funding available to 
each tribe within each region; and
    (2) BIA and FHWA will forward the information to the tribes along 
with an offer of technical assistance.
    (b) BIA and FHWA will distribute funds to eligible tribes upon 
execution of all required agreements or contracts between BIA/FHWA and 
the tribe. This distribution must occur:
    (1) Within 30 days after funds are made available to the Secretary 
under this paragraph; and
    (2) Upon execution of all required agreements or contracts between 
BIA/FHWA and the tribe.
    (c) Funds made available under this section will be expended on 
projects identified in a transportation improvement program approved by 
the Secretary. A listing of all FHWA-approved TTP projects (TTPTIP) is 
available on the BIA Transportation and FHWA Web sites.


Sec.  170.602  If a tribe incurs unforeseen construction costs, can it 
get additional funds?

    The TTP is a tribal shares program based upon a statutory funding 
formula. Therefore, no additional TTP funding beyond each tribe's share 
is available for unforeseen construction costs. However, if a tribe is 
operating under a self-determination contract, it may request 
additional funds for that project under 25 CFR 900.130(e).

Miscellaneous Provisions


Sec.  170.605  May BIA or FHWA use force-account methods in the TTP?

    When requested by a tribe, BIA or FHWA may use force-account 
methods in carrying out the eligible work of the TTP. Applicable 
Federal acquisition laws and regulations apply to BIA and FHWA when 
carrying out force-account activities on behalf of a tribe.


Sec.  170.606  How do legislation and procurement requirements affect 
the TTP?

    Other legislation and procurement requirements apply to the TTP as 
shown in the following table:

[[Page 76217]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Applies to tribes under        Applies to tribes under
Legislation, regulation or other    self[hyphen]determination       self[hyphen]governance      Applies to tribes under BIA     Applies to activities
           requirement                      contracts                     agreements            or FHWA program  agreements  performed by the  Secretary
--------------------------------------------------------------------------------------------------------------------------------------------------------
Buy Indian Act..................  No...........................  No..........................  No..........................  Yes.
Buy American Act................  No...........................  No..........................  No..........................  Yes.
Federal Acquisition Regulation    No(1)........................  No..........................  No..........................  Yes.
 (FAR).
Federal Tort Claims Act.........  Yes..........................  Yes.........................  Yes.........................  Yes.
Davis[hyphen]Bacon Act..........  Yes(2).......................  Yes(2)......................  Yes(2)......................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(a) Unless agreed to by the tribe or tribal organization under ISDEAA, 25 U.S.C. 450j(a), and 25 CFR 900.115.
(b) Does not apply when tribe performs work with its own employees.

Sec.  170.607  Can a tribe use its allocation of TTP funds for contract 
support costs?

    Yes. Contract support costs are an eligible item out of a tribe's 
TTP allocation and need to be included in a tribe's project 
construction budget.


Sec.  170.608  Can a tribe pay contract support costs from DOI or BIA 
appropriations?

    No. Contract support costs for TTP construction projects cannot be 
paid out of DOI or BIA appropriations.


Sec.  170.609  Can a tribe receive additional TTP funds for start-up 
activities?

    No. Additional TTP funding for start-up activities is not 
available.

Contracts and Agreements


Sec.  170.610  Which TTP functions may a tribe assume?

    A tribe may assume all TTP functions and activities that are 
otherwise contractible and non-inherently Federal under self-
determination contracts, self-governance agreements, program 
agreements, and other appropriate agreements. Administrative support 
functions are an eligible use of TTP funding.


Sec.  170.611  What special provisions apply to ISDEAA contracts and 
agreements?

    (a) Multi-year contracts and agreements. The Secretary can enter 
into a multi-year TTP self-determination contract and self-governance 
agreement with a tribe under sections 105(c)(1)(A) and (2) of ISDEAA. 
The amount of the contracts or agreements is subject to the 
availability of appropriations.
    (b) Consortia. Under Title I and Title IV of ISDEAA, tribes and 
multi-tribal organizations are eligible to assume TTPs under consortium 
contracts or agreements. For an explanation of self-determination 
contracts, refer to Title I, 25 U.S.C. 450f. For an explanation of 
self-governance agreements, see Title IV, 25 U.S.C. 450b(l) and 
458b(b)(2).
    (c) Advance payments. The Secretary and the tribe must negotiate a 
schedule of advance payments as part of the terms of a self-
determination contract under 25 CFR 900.132.
    (d) Design and construction contracts. The Secretary can enter into 
a design/construct TTP self-determination contract that includes both 
the design and construction of one or more TTP projects. The Secretary 
may make advance payments to a tribe:
    (1) Under a self-determination design/construct contract for 
construction activities based on progress, need, and the payment 
schedule negotiated under 25 CFR 900.132; and
    (2) Under a self-governance agreement in the form of annual or 
semiannual installments as indicated in the agreement.


Sec.  170.612  Can non-contractible functions and activities be 
included in contracts or agreements?

    (a) All non-contractible TTP ``program'' and ``project'' functions 
are funded by the Administrative expenses identified in 23 U.S.C. 
202(a)(6). These funds are only for use by BIA and FHWA transportation 
personnel performing program management and oversight, and project-
related administration activities.
    (b) Program functions cannot be included in self-determination 
contracts, self-governance agreements, program agreements, or other 
agreements. (23 U.S.C. 202(b)(6)(B) and 23 U.S.C. 202(b)(7)(B)). 
Appendix A to this subpart contains a list of program functions that 
cannot be contracted.


Sec.  170.614  Can a tribe receive funds before BIA publishes the final 
notice of funding availability?

    A tribe can receive funds before BIA publishes the final notice of 
funding availability required by Sec.  170.600(a) when partial year 
funding is made available to the TTP through continuing resolutions or 
other Congressional actions.


Sec.  170.615  Can a tribe receive advance payments for non-
construction activities under the TTP?

    Yes. A tribe must receive advance payments for non-construction 
activities under 25 U.S.C. 450l for self-determination contracts on a 
quarterly, semiannual, lump-sum, or other basis proposed by a tribe and 
authorized by law.


Sec.  170.616  How are payments made to tribes if additional funds are 
available?

    After an Agreement between BIA or FHWA and the tribe is executed, 
any additional funds will be made available to tribes under the terms 
of the executed Agreement.


Sec.  170.617  May a tribe include a contingency in its proposal 
budget?

    (a) A tribe with a self-determination contract may include a 
contingency amount in its proposed budget under 25 CFR 900.127(e)(8).
    (b) A tribe with a self-governance agreement may include a project-
specific line item for contingencies if the tribe does not include its 
full TTP funding allocation in the agreement.
    (c) The amounts in both paragraphs (a) and (b) of this section must 
be within the tribal share made available or within the negotiated 
ISDEAA contract or agreement.


Sec.  170.618  Can a tribe keep savings resulting from project 
administration?

    All funds made available to a tribe through the 23 U.S.C 202(b) are 
considered ``tribal'' and are available to the tribe until expended. 
However, they must be expended on projects and activities referenced on 
an FHWA approved TTPTIP.


Sec.  170.619  Do tribal preference and Indian preference apply to TTP 
funding?

    Tribal preference and Indian preference apply to TTP funding as 
shown in the following table:

[[Page 76218]]



------------------------------------------------------------------------
               If . . .                            Then . . .
------------------------------------------------------------------------
(a) A contract serves a single tribe.  Section 7(c) under Title 1 of
                                        ISDEAA allows tribal employment
                                        or contract preference laws,
                                        including tribe local preference
                                        laws to govern.
(b) A contract serves more than one    Section 7(b) under Title 1 of
 tribe.                                 ISDEAA applies.
(c) A self[hyphen]governance           25 CFR 1000.406 applies.
 agreement exists under Title IV of
 ISDEAA.
(d) A Program Agreement..............  The language of the Program
                                        Agreement applies.
------------------------------------------------------------------------

Sec.  170.620  How do ISDEAA's Indian preference provisions apply?

    This section applies when the Secretary or a tribe enters into a 
cooperative, reimbursable, or other agreement with a State or local 
government for a TTP construction project. The tribe and the parties 
may choose to incorporate the provisions of section 7(b) of ISDEAA in 
the agreement.


Sec.  170.621  What if a tribe doesn't perform work under a contract or 
agreement?

    If a tribe fails to substantially perform work under a contract or 
agreement:
    (a) For self-determination contracts, the Secretary must use the 
monitoring and enforcement procedures in 25 CFR 900.131(a) and (b) and 
ISDEAA, part 900 subpart L (appeals);
    (b) For self-governance agreements, the Secretary must use the 
monitoring and enforcement procedures in 25 CFR part 1000, subpart K; 
or
    (c) For FHWA or BIA TTP Agreements, the Secretaries will use the 
procedures identified in the Agreements.


Sec.  170.622  What TTP program, functions, services, and activities 
are subject to the self-governance construction regulations?

    All TTP design and construction projects and activities, whether 
included separately or under a program in the agreement, are subject to 
the regulations in 25 CFR part 1000, subpart K, including applicable 
exceptions.


Sec.  170.623  How are TTP projects and activities included in a self- 
governance agreement?

    To include a TTP project or activity in a self-governance 
agreement, the following information is required:
    (a) All work must be included in the FHWA-approved TTPTIP; and
    (b) All other information required under 25 CFR part 1000, subpart 
K.


Sec.  170.624  Is technical assistance available?

    Yes. Technical assistance is available from BIA, the Office of 
Self- Governance, and FHWA for tribes with questions about contracting 
the TTP or TTP projects.


Sec.  170.625  What regulations apply to waivers?

    The following regulations apply to waivers:
    (a) For self-determination contracts, 25 CFR 900.140 through 
900.148;
    (b) For self-governance agreements, 25 CFR 1000.220 through 
1000.232; and
    (c) For direct service, 25 CFR 1.2.


Sec.  170.626  How does a tribe request a waiver of a Department of 
Transportation regulation?

    A tribe can request a waiver of a Department of Transportation 
regulation as shown in the following table:

------------------------------------------------------------------------
 If the tribe's contract or                          then the tribe must
   agreement is with . . .          and . . .               . . .
------------------------------------------------------------------------
(a) The Secretary...........  the contract is a     follow the
                               self-determination    procedures in
                               contract.             ISDEAA, Title I,
                                                     and 25 CFR 900.140
                                                     through 900.148.
(b) The Secretary...........  the agreement is a    follow the
                               tribal self-          procedures in 25
                               governance            CFR 1000.220
                               agreement.            through 1000.232.
(c) The Secretary of          ....................  make the request to
 Transportation.                                     the Secretary of
                                                     Transportation at:
                                                     1200 New Jersey
                                                     Ave. SE., HFL-1,
                                                     Washington, DC
                                                     20590.
------------------------------------------------------------------------

Appendix to Subpart E--List of Program Functions That Cannot Be 
Subcontracted

    Per Sec.  170.612, program functions cannot be included in self-
determination contracts, self-governance agreements, program 
agreements, or other agreements. Program functions include all of 
the following:
    (a) TTP project-related pre-contracting activities:
    (1) Notifying tribes of available funding including the right of 
first refusal; and
    (2) Providing technical assistance.
    (b) TTP project-related contracting activities:
    (1) Providing technical assistance;
    (2) Reviewing all scopes of work under 25 CFR 900.122;
    (3) Evaluating proposals and making declination decisions, if 
warranted;
    (4) Performing declination activities;
    (5) Negotiating and entering into contracts or agreements with 
State, tribal, and local governments and other Federal agencies;
    (6) Processing progress payments or contract payments;
    (7) Approving contract modifications;
    (8) Processing claims and disputes with tribal governments; and
    (9) Closing out contracts or agreements.
    (c) Planning activities:
    (1) Reviewing and approving TTP transportation improvement 
programs developed by tribes or other contractors;
    (2) Reviewing and approving TTP long-range transportation plans 
developed by tribes or other contractors; and
    (d) Environmental and historical preservation activities:
    (1) Reviewing and approving all items required for environmental 
compliance; and
    (2) Reviewing and approving all items required for 
archaeological compliance.
    (e) Processing rights-of-way:
    (1) Reviewing rights-of-way applications and certifications;
    (2) Approving rights-of-way documents;
    (3) Processing grants and acquisition of rights-of-way requests 
for tribal trust and allotted lands under 25 CFR part 169;
    (4) Responding to information requests;
    (5) Reviewing and approving documents attesting that a project 
was constructed entirely within a right-of-way granted by BIA; and
    (6) Performing custodial functions related to storing rights-of-
way documents.
    (f) Conducting project development and design under 25 CFR 
900.131:
    (1) Participating in the plan-in-hand reviews on behalf of BIA 
as facility owner;
    (2) Reviewing and/or approving plans, specifications, and cost 
estimates (PS&E's) for health and safety assurance on behalf of BIA 
as facility owner;
    (3) Reviewing PS&E's to assure compliance with NEPA as well as 
all other applicable Federal laws; and
    (4) Reviewing PS&E's to assure compliance with or exceeding 
Federal standards for TTP design and construction.

[[Page 76219]]

    (g) Construction:
    (1) Making application for clean air/clean water permits as 
facility owner;
    (2) Ensuring that all required State/tribal/Federal permits are 
obtained
    (3) Performing quality assurance activities;
    (4) Conducting value engineering activities as facility owner;
    (5) Negotiating with contractors on behalf of Federal 
Government;
    (6) Approving contract modifications/change orders;
    (7) Conducting periodic site visits;
    (8) Performing all Federal Government required project-related 
activities contained in the contract documents and required by 25 
CFR parts 900 and 1000;
    (9) Conducting activities to assure compliance with safety plans 
as a jurisdictional responsibility hazardous materials, traffic 
control, OSHA, etc.;
    (10) Participating in final inspection and acceptance of project 
documents as built drawings on behalf of BIA as facility owner; and
    (11) Reviewing project closeout activities and reports.
    (h) Other activities:
    (1) Performing other non-contractible required TTP project 
activities contained in this part, ISDEAA and part 1000; and
    (2) Other Title 23 non-project-related management activities.
    (i) BIADOT program management:
    (1) Developing budget on needs for the TTP;
    (2) Developing legislative proposals;
    (3) Coordinating legislative activities;
    (4) Developing and issuing regulations;
    (5) Developing and issuing TTP planning, design, and 
construction standards;
    (6) Developing/revising interagency agreements;
    (7) Developing and approving TTP stewardship agreements in 
conjunction with FHWA;
    (8) Developing annual TTP obligation and TTP accomplishments 
reports;
    (9) Developing reports on TTP project expenditures and 
performance measures for the Government Performance and Results Act 
(GPRA);
    (10) Responding to/maintaining data for congressional inquiries;
    (11) Developing and maintaining funding formula and its 
database;
    (12) Allocating TTP and other transportation funding;
    (13) Providing technical assistance to tribe/tribal 
organizations/agencies/regions;
    (14) Providing national program leadership for other Federal 
transportation related programs including: Transportation 
Alternatives Program, Tribal Transportation Assistance Program, 
Recreational Travel and Tourism, Transit Programs, ERFO Program, and 
Presidential initiatives;
    (15) Participating in and supporting tribal transportation 
association meetings;
    (16) Coordinating with and monitoring Indian Local Technical 
Assistance Program centers;
    (17) Planning, coordinating, and conducting BIA/tribal training;
    (18) Developing information management systems to support 
consistency in data format, use, etc., with the Secretary of 
Transportation for the TTP;
    (19) Participating in special transportation related workgroups, 
special projects, task forces and meetings as requested by tribes;
    (20) Participating in national, regional, and local 
transportation organizations;
    (21) Participating in and supporting FHWA Coordinated Technology 
Implementation program;
    (22) Participating in national and regional TTP meetings;
    (23) Consulting with tribes on non-project related TTP issues;
    (24) Participating in TTP, process, and product reviews;
    (25) Developing and approving national indefinite quantity 
service contracts;
    (26) Assisting and supporting the TTP Coordinating Committee;
    (27) Processing TTP Bridge program projects and other 
discretionary funding applications or proposals from tribes;
    (28) Coordinating with FHWA;
    (29) Performing stewardship of the TTP;
    (30) Performing oversight of the TTP and its funded activities;
    (31) Performing any other non-contractible TTP activity included 
in this part; and
    (32) Determining eligibility of new uses of TTP funds.
    (j) BIADOT Planning:
    (1) Maintaining the official TTP inventory;
    (2) Reviewing long-range transportation plans;
    (3) Reviewing and approving TTP transportation improvement 
programs;
    (4) Maintaining nationwide inventory of TTP strip and atlas 
maps;
    (5) Coordinating with tribal/State/regional/local governments;
    (6) Developing and issuing procedures for management systems;
    (7) Distributing approved TTP transportation improvement 
programs to BIA regions;
    (8) Coordinating with other Federal agencies as applicable;
    (9) Coordinating and processing the funding and repair of 
damaged Indian Reservation Roads with FHWA;
    (10) Calculating and distributing TTP transportation planning 
funds to BIA regions;
    (11) Reprogramming unused TTP transportation planning funds at 
the end of the fiscal year;
    (12) Monitoring the nationwide obligation of TTP transportation 
planning funds;
    (13) Providing technical assistance and training to BIA regions 
and tribes;
    (14) Approving Atlas maps;
    (15) Reviewing TTP inventory information for quality assurance; 
and
    (16) Advising BIA regions and tribes of transportation funding 
opportunities.
    (k) BIADOT engineering:
    (1) Participating in the development of design/construction 
standards with FHWA;
    (2) Developing and approving design/construction/maintenance 
standards;
    (3) Conducting TTP/product reviews; and
    (4) Developing and issuing technical criteria for management 
systems.
    (l) BIADOT responsibilities for bridges:
    (1) Maintaining BIA National Bridge Inventory information/
database;
    (2) Conducting quality assurance of the bridge inspection 
program;
    (3) Reviewing and processing TTP Bridge program applications;
    (4) Participating in second level review of TTP bridge PS-E's; 
and
    (5) Developing criteria for bridge management systems.
    (m) BIADOT responsibilities to perform other non-contractible 
required TTP activities contained in this part.
    (n) BIA regional offices program management:
    (1) Designating TTP System roads;
    (2) Notifying tribes of available funding;
    (3) Developing State TTP transportation improvement programs;
    (4) Providing FHWA-approved TTP transportation improvement 
programs to tribes;
    (5) Providing technical assistance to tribes/tribal 
organizations/agencies;
    (6) Funding common services as provided as part of the region/
agency/BIA Division of Transportation TTP costs;
    (7) Processing and investigating non-project related tort 
claims;
    (8) Preparing budgets for BIA regional and agency TTP 
activities;
    (9) Developing/revising interagency agreements;
    (10) Developing control schedules/transportation improvement 
programs;
    (11) Developing regional TTP stewardship agreements;
    (12) Developing quarterly/annual TTP obligation and program 
accomplishments reports;
    (13) Developing reports on TTP project expenditures and 
performance measures for Government Performance and Results Act 
(GPRA);
    (14) Responding to/maintaining data for congressional inquiries;
    (15) Participating in Indian transportation association 
meetings;
    (16) Participating in Indian Local Technical Assistance Program 
(LTAP) meetings and workshops;
    (17) Participating in BIA/tribal training development highway 
safety, work zone safety, etc.;
    (18) Participating in special workgroups, task forces, and 
meetings as requested by tribes and BIA region/agency personnel;
    (19) Participating in national, regional, or local 
transportation organizations meetings and workshops;
    (20) Reviewing Coordinated Technology Implementation Program 
project proposals;
    (21) Consulting with tribal governments on non-project related 
program issues;
    (22) Funding costs for common services as provided as part of 
BIA TTP region/agency/contracting support costs;
    (23) Reviewing TTP Atlas maps;
    (24) Processing Freedom of Information Act (FOIA) requests;
    (25) Monitoring the obligation and expenditure of all TTP funds 
allocated to BIA region;
    (26) Performing activities related to the application for ERFO 
funds, administration, and oversight of the funds; and
    (27) Participating in TTP, process, and product reviews.

[[Page 76220]]

    (o) BIA regional offices' planning:
    (1) Coordinating with tribal/State/regional/local government;
    (2) Coordinating and processing the funding and repair of 
damaged Tribal Transportation Facility Roads with tribes;
    (3) Reviewing and approving TTP Inventory data;
    (4) Maintaining, reviewing, and approving the management systems 
databases;
    (5) Reviewing and approving TTP State transportation improvement 
programs; and
    (6) Performing Federal responsibilities identified in the TTP 
Transportation Planning Procedures and Guidelines manual.
    (p) BIA regional offices' engineering:
    (1) Approving tribal standards for the TTP use;
    (2) Developing and implementing new engineering techniques in 
the TTP; and
    (3) Providing technical assistance.
    (q) BIA regional offices' responsibilities for bridges:
    (1) Reviewing and processing TTP bridge program applications;
    (2) Reviewing and processing TTP bridge inspection reports and 
information; and
    (3) Ensuring the safe use of roads and bridges.
    (r) BIA regional offices' other responsibilities for performing 
other non- contractible required TTP activities contained in this 
part.

Subpart F--Program Oversight and Accountability


Sec.  170.700  What is the TTP Stewardship Plan/National Business Plan?

    The TTP stewardship plan/national business plan delineates the 
respective roles and responsibilities of BIA and FHWA in the 
administration of the TTP and the process used for fulfilling those 
roles and responsibilities.


Sec.  170.701  May a direct service tribe and BIA Region sign a 
Memorandum of Understanding?

    Yes. A direct service tribe and BIA Region My sign a Memorandum of 
Understanding (MOU). A TTP tribal/BIA region MOU is a document that a 
direct service tribe and BIA may enter into to help define the roles, 
responsibilities and consultation process between the regional BIA 
office and the Indian tribal government. It describes how the TTP will 
be carried out by BIA on the tribe's behalf.


Sec.  170.702  What activities may the Secretaries review and monitor?

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


Sec.  170.703  What program reviews do the Secretaries conduct?

    (a) BIADOT and FHWA conduct formal program reviews of BIA Regional 
Offices or tribes to examine program procedures and identify 
improvements. For a BIA Regional Office review, the regional tribes 
will be notified of these formal program reviews. Tribes may send 
representatives to these meetings at their own expense.
    (b) The review will provide recommendations to improve the program, 
processes and controls of management, planning, design, construction, 
financial and administration activities.
    (c) After the review, the review team must:
    (1) Make a brief oral report of findings and recommendations to the 
tribal leadership or BIA Regional Director; and
    (2) Within 60 days, provide a written report of its findings and 
recommendations to the tribe, BIA, all participants, and affected 
tribal governments and organizations.


Sec.  170.704  What happens when the review process identifies areas 
for improvement?

    When the review process identifies areas for improvement:
    (a) The tribe or regional office must develop a corrective action 
plan within 60 days;
    (b) BIADOT and FHWA review and approve the plan;
    (c) FHWA may provide technical assistance during the development 
and implementation of the plan; and
    (d) The reviewed tribe or BIA regional office implements the plan 
and reports either annually or biennially to BIADOT and FHWA on 
implementation.

Subpart G--Maintenance


Sec.  170.800  What funds are available for maintenance activities?

    (a) Under 23 U.S.C. 202(a)(8), a tribe can use TTP funding for 
maintenance, within the following limits, whichever is greater:
    (1) 25 percent of its TTP funds; or
    (2) $500,000.
    (b) These funds can only be used to maintain the public facilities 
included in the NTTFI.
    (c) Road sealing activities are not subject to this limitation.
    (d) BIA retains primary responsibility, including annual funding 
request responsibility, for BIA road maintenance programs on Indian 
reservations.
    (e) The Secretary of the Interior shall ensure that funding made 
available under the TTP for maintenance of tribal transportation 
facilities for each fiscal year is supplementary to, and not in lieu 
of, any obligation of funds by the BIA for road maintenance programs on 
Indian reservations.


Sec.  170.801  Can maintenance funds be used to improve TTP 
transportation facilities?

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


Sec.  170.802  Can a tribe perform road maintenance?

    Yes. A tribe may enter into self-determination contracts, self-
governance agreements, program agreements, and other appropriate 
agreements to perform tribal transportation facility maintenance.


Sec.  170.803  To what standards must a TTP transportation facility be 
maintained?

    Subject to availability of funding, TTP transportation facilities 
must be maintained under either:
    (a) A standard accepted by BIA or FHWA (as identified in the 
official Tribal Transportation Program guide on either the BIA 
transportation Web site at http://www.bia.gov/WhoWeAre/BIA/OIS/Transportation/index.htm or the Federal Lands Highway--Tribal 
Transportation Program Web site at http://flh.fhwa.dot.gov/programs/ttp/guide/, or
    (b) Another tribal, Federal, State, or local government maintenance 
standard negotiated in an ISDEAA road maintenance self- determination 
contract or self-governance agreement.


Sec.  170.804  What if maintenance funding is inadequate?

    If BIA determines that a TTP transportation facility is not being 
maintained under TTP standards due to insufficient funding, it will:
    (a) Notify the facility owner, and if the facility is a BIA system 
road, continue to request annual maintenance funding for that facility; 
and
    (b) Report these findings to the Secretary of Transportation under 
23 U.S.C. 201(a). BIA will provide a draft copy of the report to the 
affected tribe for comment before forwarding it to Secretary of 
Transportation.


Sec.  170.805  What maintenance activities are eligible for TTP 
funding?

    TTP Maintenance funding support a wide variety of activities 
necessary to maintain facilities identified in the NTTFI.A list of 
eligible activities is available in the official Tribal Transportation 
Program guide on either the BIA transportation Web site at http://www.bia.gov/WhoWeAre/BIA/OIS/Transportation/index.htm or the Federal 
Lands Highway--Tribal Transportation Program Web site at http://flh.fhwa.dot.gov/programs/ttp/guide/.

[[Page 76221]]

Subpart H--Miscellaneous Provisions

Reporting Requirements and Indian Preference


Sec.  170.910  What information on the TTP or projects must BIA or FHWA 
provide?

    At the written request of a tribe, BIA or FHWA must provide 
available information on the TTP or projects to a tribe within a 
reasonable time.


Sec.  170.911  Are Indians entitled to employment and training 
preferences?

    (a) Federal law gives hiring and training preferences, to the 
greatest extent feasible, to Indians for all work performed under the 
TTP.
    (b) Under 25 U.S.C. 450e(b), 23 U.S.C. 140(d), 25 U.S.C. 47, and 23 
U.S.C. 202(a)(3), Indian organizations and Indian-owned economic 
enterprises are entitled to a preference, to the greatest extent 
feasible, in the award of contracts, subcontracts and sub-grants for 
all work performed under the TTP.


Sec.  170.912  Does Indian employment preference apply to Federal-aid 
Highway Projects?

    (a) Tribal, State, and local governments may provide an Indian 
employment preference for Indians living on or near a reservation on 
projects and contracts that meet the definition of a tribal 
transportation facility. (See 23 U.S.C. 101(a)(12) and 140(d), and 23 
CFR 635.117(d).)
    (b) Tribes may target recruiting efforts toward Indians living on 
or near Indian reservations, Indian lands, Alaska Native villages, 
pueblos, and Indian communities.
    (c) Tribes and tribal employment rights offices should work 
cooperatively with State and local governments to develop contract 
provisions promoting employment opportunities for Indians on eligible 
federally funded transportation projects. Tribal, State, and local 
representatives should confer to establish Indian employment goals for 
these projects.


Sec.  170.913  Do tribal-specific employment rights and contract 
preference laws apply?

    Yes. When a tribe or consortium administers a TTP or project 
intended to benefit that tribe or a tribe within the consortium, the 
benefitting tribe's employment rights and contracting preference laws 
apply. (See Sec.  170.619 and 25 U.S.C. 450e(c).)


Sec.  170.914  What is the difference between tribal preference and 
Indian preference?

    Indian preference is a hiring preference for Indians in general. 
Tribal preference is a preference adopted by a tribal government that 
may or may not include a preference for Indians in general, Indians of 
a particular tribe, Indians in a particular region, or any combination 
thereof.


Sec.  170.915  May tribal employment taxes or fees be included in a TTP 
project budget?

    Yes. The cost of tribal employment taxes or fees may be included in 
the budget for a TTP project.


Sec.  170.916  May tribes impose taxes or fees on those performing TTP 
services?

    Yes. Tribes, as sovereign nations, may impose taxes and fees for 
TTP activities. When a tribe administers TTPs or projects under ISDEAA, 
its tribal employment and contracting preference laws, including taxes 
and fees, apply.


Sec.  170.917  Can tribes receive direct payment of tribal employment 
taxes or fees?

    This section applies to non-tribally administered TTP projects. 
Tribes can request that BIA pay tribal employment taxes or fees 
directly to them under a voucher or other written payment instrument, 
based on a negotiated payment schedule. Tribes may consider requesting 
direct payment of tribal employment taxes or fees from other 
transportation departments in lieu of receiving their payment from the 
contractor.


Sec.  170.918  What applies to the Secretaries collection of data under 
the TTP?

    Under 23 U.S.C. 201(c)(6), the Secretaries will collect and report 
data necessary to implement the Tribal Transportation Program under the 
ISDEAA, including:
    (a) Inventory and condition information on Federal lands 
transportation facilities and tribal transportation facilities; and
    (b) Bridge inspection and inventory information on any Federal 
bridge open to the public.

Tribal Transportation Departments


Sec.  170.930  What is a tribal transportation department?

    A tribal transportation department is a department, commission, 
board, or official of any tribal government charged by its laws with 
the responsibility for highway construction. Tribal governments, as 
sovereign nations, have inherent authority to establish their own 
transportation departments under their own tribal laws. Tribes may 
staff and organize transportation departments in any manner that best 
suits their needs. Tribes can receive technical assistance from TTACs, 
BIA regional road engineers, FHWA, or AASHTO to establish a tribal 
transportation department.


Sec.  170.931  Can tribes use TTP funds to pay tribal transportation 
department operating costs?

    Yes. Tribes can use TTP funds to pay the cost of planning, 
administration, and performance of approved TTP activities (see Sec.  
170.115). Tribes can also use BIA road maintenance funds to pay the 
cost of planning, administration, and performance of maintenance 
activities under this part.


Sec.  170.932  Are there other funding sources for tribal 
transportation departments?

    There are many sources of funds that may help support a tribal 
transportation department. The following are some examples of 
additional funding sources:
    (a) Tribal general funds;
    (b) Tribal Priority Allocation;
    (c) Tribal permits and license fees;
    (d) Tribal fuel tax;
    (e) Federal, State, private, and local transportation grants 
assistance;
    (f) Tribal Employment Rights Ordinance fees (TERO); and
    (g) Capacity building grants from Administration for Native 
Americans and other organizations.


Sec.  170.933  Can tribes regulate oversize or overweight vehicles?

    Yes. Tribal governments can regulate travel on roads under their 
jurisdiction and establish a permitting process to regulate the travel 
of oversize or overweight vehicles, under applicable Federal law. BIA 
may, with the consent of the affected tribe, establish a permitting 
process to regulate the travel of oversize or overweight vehicles on 
BIA-system roads.

Resolving Disputes


Sec.  170.934  Are alternative dispute resolution procedures available?

    (a) Federal agencies should use mediation, conciliation, 
arbitration, and other techniques to resolve disputes brought by TTP 
beneficiaries. The goal of these alternative dispute resolution (ADR) 
procedures is to provide an inexpensive and expeditious forum to 
resolve disputes. Federal agencies should resolve disputes at the 
lowest possible staff level and in a consensual manner whenever 
possible.
    (b) Except as required in 25 CFR part 900 and part 1000, tribes 
operating under a self-determination contract or self-governance 
agreement are entitled to use dispute resolution techniques prescribed 
in:
    (1) The ADR Act, 5 U.S.C. 571-583;
    (2) The Contract Disputes Act, 41 U.S.C. 601-613; and
    (3) The Indian Self-Determination and Education Assistance Act and 
the implementing regulations (including for

[[Page 76222]]

non-construction the mediation and alternative dispute resolution 
options listed in 25 U.S.C. 4501 (model contract section (b)(12)).
    (4) Tribes operating under a Program Agreement with FHWA are 
entitled to use dispute resolution techniques prescribed in 25 CFR 
170.934 and Article II, Section 4 of the Agreement.


Sec.  170.935  How does a direct service tribe begin the alternative 
dispute resolution process?

    (a) To begin the ADR process, a direct service tribe must write to 
the BIA Regional Director, or the Chief of BIA Division of 
Transportation. The letter must:
    (1) Ask to begin one of the alternative dispute resolution (ADR) 
procedures in the Administrative Dispute Resolution Act of 1996, 5 
U.S.C. 571-583 (ADR Act); and
    (2) Explain the factual and legal basis for the dispute.
    (b) ADR proceedings will be governed by procedures in the ADR Act 
and the implementing regulations.

Other Miscellaneous Provisions


Sec.  170.941  May tribes become involved in transportation research?

    Yes. Tribes may:
    (a) Participate in Transportation Research Board meetings, 
committees, and workshops sponsored by the National Science Foundation;
    (b) Participate in and coordinate the development of tribal and TTP 
transportation research needs;
    (c) Submit transportation research proposals to States, FHWA, 
AASHTO, and FTA;
    (d) Prepare and include transportation research proposals in their 
TTPTIPS;
    (e) Access Transportation Research Information System Network 
(TRISNET) database; and
    (f) Participate in transportation research activities under 
Intergovernmental Personnel Act agreements.


Sec.  170.942  Can a tribe use Federal funds for transportation 
services for quality-of-life programs?

    (a) A tribe can use TTP funds:
    (1) To coordinate transportation-related activities to help provide 
access to jobs and make education, training, childcare, healthcare, and 
other services more accessible to tribal members; and
    (2) As the matching share for other Federal, State, and local 
mobility programs.
    (b) To the extent authorized by law additional grants and program 
funds are available for the purposes in paragraph (a)(1) of this 
section from other programs administered by the Departments of 
Transportation, Health and Human Services, and Labor.
    (c) Tribes should also apply for Federal and State public 
transportation and personal mobility program grants and funds.


Sec.  170.943  What is the Tribal High Priority Projects Program?

    The Tribal High Priority Projects Program is authorized under 
Section 1123 of MAP21 and is not part of the Tribal Transportation 
Program. Details about the program are available on either the BIA 
transportation Web site at http://www.bia.gov/WhoWeAre/BIA/OIS/Transportation/index.htm or the Federal Lands Highway--Tribal 
Transportation Program Web site at http://flh.fhwa.dot.gov/programs/ttp/.

    Dated: December 11, 2014.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2014-29604 Filed 12-17-14; 4:15 pm]
BILLING CODE 4310-6W-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>