25 CFR 170, Subpart D

§ 170.400

25 CFR Ch. I (4–1–08 Edition)

construction because they generally will not
require maintenance of traffic during construction. If maintenance of traffic is required as will generally be the case for roadbed condition codes 3 and 4, the minimum
percentage of incidental costs for these roadbed condition codes will be 75 percent. It is

assumed that improvement roadbed condition codes 5, 6 and 7 will primarily be paving
projects with little or no earthwork involved
and the minimum percentage of the total incidental construction cost for these projects
will be 30 percent.

TABLE 7—PERCENT OF INCIDENTAL CONSTRUCTION COST REQUIRED
Code
0
1
2
3

......
......
......
......

4 ......
5 ......
6 ......
7 ......

New alignment
(percent)

Roadbed condition
Proposed road .........................................................................................................
Primitive trail ............................................................................................................
Bladed unimproved earth road, poor drainage, poor alignment .............................
Minimum built-up roadbed (shallow cuts and fills) with inadequate drainage and
alignment that generally follows existing ground.
A designed and constructed roadbed with some drainage and alignment improvements required.
A roadbed constructed to the adequate standards with good horizontal and
vertical alignment and proper drainage. Requiring surfacing.
A roadbed constructed to adequate standards with curb and gutter on one side.
Requiring surfacing.
A roadbed constructed to adequate standards with curb and gutter on both
sides. Requiring surfacing.

Table 7 only accounts for those incidental
construction costs normally found on a typical project. The construction items found in
Table 8 may or may not be on any particular
project and the cost of these items is 25 percent. Add the percentage required (from 0 to
25 percent) based on the Regional recommendation with verification. If there are
no additional items required, use the default
of zero.

TABLE 8—PERCENT OF ADDITIONAL INCIDENTAL
CONSTRUCTION COST
Additional incidental construction item

Percent of
total incidental
construction
cost

Fencing ..........................................................
Landscaping ..................................................
Structural concrete ........................................
Traffic signals ................................................
Utilities ...........................................................

1
9
9
3
3

Subpart D—Planning, Design, and
Construction of Indian Reservation Roads Program Facilities
TRANSPORTATION PLANNING

rfrederick on PROD1PC67 with CFR

§ 170.400 What is the purpose of transportation planning?
The purpose of transportation planning is to fulfill goals by developing
strategies to meet transportation
needs. These strategies address current

Maintenance of
traffic required
(percent)

65
65
65
N/A

N/A
N/A
N/A
75

N/A

75

N/A

30

N/A

30

N/A

30

and future land use, economic development, traffic demand, public safety,
health, and social needs.
§ 170.401 What is BIA’s role in transportation planning?
Except as provided in § 170.402, the
functions and activities that BIA must
perform for the IRR Program are:
(a) Preparing the regional IRRTIP;
(b) Updating the IRR Inventory from
data updates;
(c) Preparing IRR Inventory data updates as needed;
(d) Coordinating with States and
their political subdivisions, and appropriate planning authorities on regionally significant IRR projects;
(e) Providing technical assistance to
tribal governments;
(f) Developing IRR Program budgets
including transportation planning cost
estimates;
(g) Facilitating public involvement;
(h) Participating in transportation
planning and other transportation-related meetings;
(i) Performing traffic studies;
(j) Performing preliminary project
planning;
(k) Conducting special transportation
studies;
(l) Developing short and long-range
transportation plans;
(m) Mapping;

588

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00598

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082

Bureau of Indian Affairs, Interior

§ 170.407

(n) Developing and maintaining management systems;
(o) Performing transportation planning for operational and maintenance
facilities; and
(p) Researching rights-of-way documents for project planning.
§ 170.402 What is the tribal role in
transportation planning?
(a) All tribes must prepare a tribal
TIP (TTIP) or tribal priority list.
(b) Tribes with a self-determination
contract 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 IRR projects;
(2) Preparing IRR Inventory 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 IRR Program 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.

rfrederick on PROD1PC67 with CFR

§ 170.403 What IRR Program funds can
be used for transportation planning?
Funds as defined in 23 U.S.C. 204(j)
are specifically reserved for a tribal
government’s transportation planning.
Tribes may also identify transportation planning as a priority in their
tribal priority list or TTIP and request
the use of up to 100 percent of their
IRR Program construction funds for
transportation planning.

§ 170.404 What happens when a tribe
uses its IRR Program construction
funds for transportation planning?
In order for IRR Program construction funds to be concentrated on the
projects within the inventory, a tribe
may use up to $35,000 or 5 percent of its
IRR Program construction funds,
whichever is greater, for transportation planning. If a tribe exceeds this
threshold, BIA will subtract the
amount over the threshold from the
tribe’s CTC for the following year.
§ 170.405 Can tribal transportation
planning funds be used for road
construction and other projects?
Yes, any tribe can request to have its
planning funds as defined in 23 U.S.C.
204(j) transferred into construction
funds for use on any eligible and approved IRR project. (Also see § 170.407.)
§ 170.406 How must tribes use planning funds?
(a) IRR Program funds as defined in
23 U.S.C. 204(j) are only available upon
request of a tribal government and approved by the BIA Regional Office.
These funds support development and
implementation of tribal transportation planning and associated strategies for identifying transportation
needs, including:
(1) Attending transportation planning meetings;
(2) Pursuing other sources of funds;
and
(3) Developing the tribal priority list
or any of the transportation functions/
activities as defined in the FHWA IRR
Program Transportation Planning Procedures and Guidelines (TPPG) or listed in § 170.402.
(b) A tribe may ask the BIA regional
office to enter into a self-determination contract or self-governance agreement for transportation planning activities and functions under ISDEAA or
it may request a travel authorization
to attend transportation planning
functions and related activities using
these funds. (See appendix A of subpart
B for use of IRR Program Funds.)
§ 170.407 What happens to unobligated
planning funds?
Once all tribal governments’ requests
for tribal transportation planning

589

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00599

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082

§ 170.410

25 CFR Ch. I (4–1–08 Edition)

funds have been satisfied for a given
fiscal year or no later than August 15,
the BIA regional office may use the remaining funds for construction after
consultation with the affected tribal
governments.
LONG-RANGE TRANSPORTATION
PLANNING
§ 170.410 What is the purpose of tribal
long-range
transportation
planning?
(a) The purpose of long-range transportation planning is to clearly demonstrate a tribe’s transportation needs
and to fulfill tribal goals by developing
strategies to meet these needs. These
strategies should address future land
use, economic development, traffic demand, public safety, and health and social needs.
(b) The time horizon for long-range
transportation planning should be 20
years to match state transportation
planning horizons. A tribe may develop
a long-range transportation plan under
ISDEAA or may ask BIA to develop the
plan on the tribe’s behalf.

rfrederick on PROD1PC67 with CFR

§ 170.411 What may a long-range transportation plan include?
A comprehensive long-range transportation plan may include:
(a) An evaluation of a full range of
transportation modes and connections
between modes such as highway, rail,
air, and water, to meet transportation
needs;
(b) Trip generation studies, including
determination of traffic generators due
to land use;
(c) Social and economic development
planning to identify transportation improvements or needs to accommodate
existing and proposed land use in a safe
and economical fashion;
(d) Measures that address health and
safety concerns relating to transportation improvements;
(e) A review of the existing and proposed transportation system to identify the relationships between transportation and the environment;
(f) Cultural preservation planning to
identify important issues and develop a
transportation plan that is sensitive to
tribal cultural preservation;
(g) Scenic byway and tourism plans;

(h) Measures that address energy
conservation considerations;
(i) A prioritized list of short and
long-term transportation needs; and
(j) An analysis of funding alternatives to implement plan recommendations.
§ 170.412 How is the tribal IRR longrange transportation plan developed and approved?
(a) The tribal IRR long-range transportation plan is developed by:
(1) A tribe working through a self-determination contract or self-governance agreement or other funding
sources; or
(2) BIA upon request of, and in consultation with, a tribe. The tribe and
BIA need to agree on the methodology
and elements included in development
of the IRR long-range transportation
plan along with time frames before
work begins.
(b) During the development of the
IRR long-range transportation plan,
the tribe and BIA should jointly conduct a midpoint review.
(c) The public reviews a draft IRR
long-range transportation plan as required by § 170.413. The plan is further
refined to address any issues identified
during the public review process. The
tribe then approves the IRR long-range
transportation plan.
§ 170.413 What is the public role in developing the long-range transportation plan?
BIA or the tribe must solicit public
involvement. If there are no tribal policies regarding public involvement, a
tribe must use the procedures shown
below. 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
may be handled in either of the following two ways:
(a) For public meetings, BIA 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 or the
tribe may post notices under local acceptable practices;

590

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00600

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082

Bureau of Indian Affairs, Interior

§ 170.422

(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 or a tribe
must:
(1) Publish a notice in the local and
tribal newspapers when the draft longrange transportation plan is complete.
In the absence of local public newspapers, BIA or the tribe may post notices under local acceptable practices;
and
(2) State in the notice that the longrange 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).

rfrederick on PROD1PC67 with CFR

§ 170.414 How is the tribal long-range
transportation plan used and updated?
The tribal government uses its IRR
long-range transportation plan in its
development of a tribal priority list or
TTIP. To be consistent with State and
MPO planning practices, the tribe or
BIA (for direct service tribes) should:
(a) Review the IRR long-range transportation plan annually; and
(b) Update the plan every 5 years.
§ 170.415 What is pre-project planning?
(a) Pre-project planning is part of
overall transportation planning and includes the activities conducted before
final project approval on the IRR
Transportation Improvement Program
(IRRTIP). These activities include;
(1) Preliminary project cost estimates;
(2) Certification of public involvement;
(3) Consultation and coordination
with States and/or MPO’s for a regionally significant projects;
(4) Preliminary needs assessments;
and
(5) Preliminary environmental and
archeological reviews.
(b) The BIA regional office must
work cooperatively with tribal, state,
regional, and metropolitan transpor-

tation planning organizations concerning the leveraging of funds from
non-IRR Program sources and identification of other funding sources to expedite the planning, design, and construction of projects on the IRRTIP.
TRANSPORTATION IMPROVEMENT
PROGRAM
§ 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) May or may not identify projects
in order of priority;
(b) Is not financially constrained; and
(c) Is provided to BIA by official tribal action, unless the tribal government
submits a Tribal Transportation Improvement Program (TTIP).
§ 170.421 What is the Tribal Transportation
Improvement
Program
(TTIP)?
The TTIP:
(a) Must be consistent with the tribal
long-range transportation plan;
(b) Must contain all IRR Program
funded projects programmed for construction in the next 3 to 5 years;
(c) Must identify the implementation
year of each project scheduled to begin
within the next 3 to 5 years;
(d) May include other Federal, State,
county, and municipal, transportation
projects initiated by or developed in
cooperation with the tribal government;
(e) Will be reviewed and updated as
necessary by the tribal government;
(f) Can be changed only by the tribal
government; and
(g) Must be forwarded to BIA by resolution or by tribally authorized government action for inclusion into the
IRRTIP.
§ 170.422 What is the IRR Transportation
Improvement
Program
(IRRTIP)?
The IRRTIP:
(a) Is financially constrained;
(b) Must include eligible projects
from tribal TTIPs;
(c) Is selected by tribal governments
from TTIPs or other tribal actions;
(d) Is organized by year, State, and
tribe; and

591

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00601

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082

§ 170.423

25 CFR Ch. I (4–1–08 Edition)

(e) May include non-IRR projects for
inclusion into the State Transportation Improvement Program (STIP).

rfrederick on PROD1PC67 with CFR

§ 170.423 How are projects placed on
the IRRTIP?
(a) BIA selects projects from the
TTIP or tribal priority list for inclusion on the IRRTIP as follows:
(1) The tribal government develops a
list of detailed tasks and information
for each project from the tribal priority list or TTIP;
(2) BIA includes this project information in its region-wide control schedule
without change, unless the funding required exceeds the amount available to
the tribe;
(3) BIA must include projects that
are scheduled in the next 3 to 5 years;
and
(4) BIA develops the IRRTIP after
consulting with the tribes and taking
their priorities into account.
(b) A tribe that does not generate
enough annual funding under the IRR
Program funding formula to complete
a project may either:
(1) Submit its tribal priority list to
the appropriate BIA Region, which will
develop the region-wide control schedule after consulting with the tribe and
taking its priorities into account; or
(2) Enter a consortium of tribes and
delegate authority to the consortium
to develop the TTIP and tribal control
schedule;
(3) Enter into agreement with other
tribes to permit completion of the
project; or
(4) Apply for IRRHPP funding under
subpart C.
(c) In order to get a project on the
IRRTIP, tribes may seek flexible financing alternatives as described in
subpart C.
§ 170.424 How does the public participate in developing the IRRTIP?
Public involvement is required in the
development of the IRRTIP.
(a) BIA or the tribe must publish a
notice in local and tribal newspapers
when the draft tribal or IRRTIP 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.
(b) BIA or the tribe may hold public
meetings at which the public may comment orally or in writing.
(c) BIA, the tribe, the State transportation agency or MPO may conduct
public involvement activities.
§ 170.425 How does BIA update the
IRRTIP?
The IRRTIP annual update allows incorporation of transportation projects
planned for the next 3 to 5 years. Each
BIA regional office updates the IRRTIP
for each State in its service area to reflect changes in the TTIPs or tribal
project listings.
(a) During the first quarter of the fiscal year each BIA Regional Office notifies tribes of the update and provides
projected
IRR
Program
funding
amounts and a copy of the previous
year’s regional IRRTIP.
(b) The tribe reviews any new transportation planning information, priority lists, and TTIP and forwards an
updated TTIP or project listing to BIA
Regional Office on or before July 15.
(c) The BIA regional office reviews
all submitted information with the
tribes. BIA adds agreed-upon updates,
including previously approved amendments (see § 170.427), to the IRRTIP so
that the Secretaries can approve the
new updated IRRTIP before the start of
the next fiscal year.
§ 170.426 What is the approval process
for the IRRTIP?
The approval process for the IRRTIP
is:
(a) The BIA Regional Office forwards
the IRRTIP to the Secretaries for review and approval;
(b) Federal Lands Highway Office
will provide copies of the approved
IRRTIP to the FHWA division office
for transmittal to the State transportation agency for inclusion in the
State Transportation Improvement
Program (STIP). The approved IRRTIP
will be returned to BIA;
(c) BIA sends copies of the approved
IRRTIP to BIA Regional Offices and
tribal governments; and

592

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00602

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082

Bureau of Indian Affairs, Interior

§ 170.438

(d) Within 10 working days of receiving the approved IRRTIP and IRR Program funds, BIA enters the projects
into the Federal finance system.
§ 170.427 How
amended?

may

an

IRRTIP

be

(a) A tribe may amend the IRRTIP
by changing its TTIP on or before July
15 and submitting the changed TTIP to
BIA for inclusion in the IRRTIP. BIA’s
regional office 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
IRRTIP amendment contains a project
not listed on the current approved
IRRTIP, BIA must submit the proposed
amendment to FHWA for final approval.
(b) BIA may amend the IRRTIP:
(1) To add or delete projects or reflect
significant changes in scope at any
time if requested by the tribe; and
(2) To reduce funding or reschedule a
project after consulting with the affected tribe and obtaining its consent,
if practical.
(c) The Secretary may not reduce
funding for or reschedule a project that
is the subject of a negotiated agreement, except under the terms of the
agreement.
(d) BIA amends the IRRTIP using the
same public involvement process used
to develop the original IRRTIP.
§ 170.428 How is the State Transportation Improvement Program related to the IRRTIP?
The annual update of the IRRTIP for
each State in a BIA regional office’s
service area should be coordinated with
the State transportation agencies. This
will ensure that approved IRRTIP updates and amendments are included
with the STIP.

plan or 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.
§ 170.436 How are public hearings for
IRR planning and projects funded?
(a) Public hearings for IRR planning
are funded as follows:
(1) Public hearings for TTIPS and
long-range transportation plans conducted by tribes are funded using the
funds defined in title 23 U.S.C. 204(j) or
IRR Program construction funds; and
(2) Public hearings for a tribe’s longrange transportation plan conducted
by BIA at the tribe’s request are funded using the tribes’ funds as defined in
title 23 U.S.C. 204(j) or IRR Program
construction funds.
(b) Public hearings for IRR projects
conducted by either tribes or BIA are
funded using IRR Program construction funds.
§ 170.437 How must BIA or a tribe inform the public when no hearing is
held?
(a) When no public hearing for an
IRR project is scheduled, either the
tribe or BIA 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 must send a copy of
the notice to the affected tribe.

PUBLIC HEARINGS

rfrederick on PROD1PC67 with CFR

§ 170.435 How does BIA or the tribe determine the need for a public hearing?
The tribe, or BIA after consultation
with the appropriate tribe and other
involved agencies, determines whether
or not a public hearing is needed for an
IRRTIP,
long-range
transportation

§ 170.438 How must BIA or a tribe inform the public when a hearing is
held?
When BIA or a tribe holds a hearing
under this part, it must notify the public of the hearing by publishing a notice.
(a) The public hearing notice is a document containing:

593

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00603

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082

§ 170.439

25 CFR Ch. I (4–1–08 Edition)

(1) Date, time, and place of the hearing;
(2) Planning activities or project location;
(3) Proposed work to be done, activities to be conducted, etc.;
(4) Where preliminary plans, designs
or specifications may be reviewed; and
(5) How and where to get more information.
(b) BIA or the tribe must publish the
notice:
(1) By posting and/or publishing the
notice at least 30 days before the public
hearing. A second notice for a hearing
is optional; and,
(2) By sending a courtesy copy of the
notice to the affected tribe(s) and BIA
Regional Office.

rfrederick on PROD1PC67 with CFR

§ 170.439 How is a public hearing conducted?
(a) Who conducts the hearing. A tribal
or Federal official is appointed to preside over the public hearing. The official presiding over the hearing must
maintain 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 IRR projects and activities;
and
(3) The presiding official informs the
hearing audience of the appropriate
procedures for a proposed IRR 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 allowed by
the Uniform Relocation and Real Prop-

erty 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 are present to answer questions.
(e) Opportunity for comment. Comments are received as follows:
(1) Oral statement at the hearing;
(2) Written statement submitted at
the hearing;
(3) Written statement sent to the address noted in the hearing notice within 5 working days following the public
hearing.
§ 170.440 How can the public learn the
results of a public hearing?
Results of a public hearing are available as follows:
(a) Within 20 working days of the
completion of the public hearing, the
presiding official issues a hearing
statement summarizing the results of
the public hearing and the determination of needed further action.
(b) The presiding official posts the
hearing statement at the hearing site.
The public may request a copy. The
hearing statement outlines appeal procedures.
§ 170.441 Can a decision resulting from
a hearing be appealed?
Yes. A decision resulting from the
public hearing may be appealed pursuant to 25 CFR part 2.
IRR INVENTORY
§ 170.442 What is the IRR Inventory?
(a) The IRR Inventory is a comprehensive database of all transportation facilities eligible for IRR Program funding by tribe, reservation,
BIA agency and region, Congressional
district, State, and county. Other specific information collected and maintained under the IRR Program includes
classification, route number, bridge
number, current and future traffic volumes, maintenance responsibility, and
ownership.

594

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00604

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082

Bureau of Indian Affairs, Interior

§ 170.451

(b) Elements of the inventory are
used in the Relative Need Distribution
Factor. BIA or tribes can also use the
inventory to assist in transportation
and project planning, justify expenditures, identify transportation needs,
maintain existing IRR transportation
facilities, and develop management
systems.
§ 170.443 How can a tribe list a proposed transportation facility in the
IRR Inventory?
A proposed IRR transportation facility is any transportation facility, including a highway bridge, that will
serve public transportation needs, is eligible for construction under the IRR
Program and does not currently exist.
To be included in the IRR inventory, a
proposed transportation facility must:
(a) Be supported by a tribal resolution or other official tribal authorization;
(b) Address documented transportation needs as developed by and identified in tribal transportation planning
efforts, such as the long-range transportation plan;
(c) Be eligible for IRR Program funding; and
(d) Be open to the public when built.

rfrederick on PROD1PC67 with CFR

§ 170.444 How is the IRR Inventory updated?
The IRR Inventory data for a tribe is
updated on an annual basis as follows:
(a) Each BIA Regional Office provides
the tribes in its region copies of the
IRR Inventory by November 1st of each
year;
(b) The tribe reviews the data and
submits changes (together with a strip
map of each change) to the BIA Regional Office along with authorizing
resolutions or similar official authorization by March 15;
(c) The BIA Regional Office reviews
each tribe’s submission for errors or
omissions and provides the tribe with
its revised inventory by May 15;
(d) The tribe must correct any errors
or omissions by June 15;
(e) Each BIA Regional Office certifies
its data and enters the data into the
IRR Inventory by July 15;
(f) BIA provides each tribe with copies of the Relative Need Distribution

Factor distribution percentages by August 15; and
(g) BIADOT approves submissions
from BIA Regional Offices before they
are included in the National IRR Inventory.
§ 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 IRR Inventory. Each
strip map submitted with an IRR Inventory change must:
(a) Define the facility’s location with
respect to State, county, tribal, and
congressional boundaries;
(b) Define the overall dimensions of
the facility and the accompanying inventory data;
(c) Include a table that provides the
IRR Inventory information about the
transportation facility.
ENVIRONMENTAL AND ARCHEOLOGICAL
REQUIREMENTS
§ 170.450 What archeological and environmental requirements must the
IRR Program meet?
(a) The archeological and environmental requirements with which BIA
must comply on the IRR Program are
contained in Appendix A to this subpart.
(b) The archeological and environmental requirements for tribes that
enter into self-determination contracts
or self-governance agreements for the
IRR Program are in 25 CFR 900.125 and
1000.243.
§ 170.451 Can IRR Program funds be
used for archeological and environmental compliance?
Yes. For approved IRR projects, IRR
Program funds can be used for environmental and archeological work consistent with 25 CFR 900.125(c)(6) and
(c)(8) and 25 CFR 1000.243(b) and applicable tribal laws for:
(a) Road and bridge rights-of-way;
(b) Borrow pits and aggregate pits associated with IRR 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

595

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00605

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082

§ 170.454

25 CFR Ch. I (4–1–08 Edition)

environmental analysis and after consultation with the affected tribe(s) and
the appropriate Secretary(s); and
(d) Construction easements.
DESIGN
§ 170.454 What design standards are
used in the IRR Program?
(a) Appendix B to this subpart lists
design standards that BIA may use for
the IRR program.
(b) BIA may also use FHWA-approved
State or tribal design standards.
(c) Tribes may propose road and
bridge design standards to be used in
the IRR Program that are consistent
with or exceed applicable Federal
standards. The standards may be negotiated between BIA and the tribe and
included in a self-determination contract or self-governance agreement.

rfrederick on PROD1PC67 with CFR

§ 170.455 How are design standards
used in IRR projects?
The standards in this section must be
applied to each construction project
consistent with a minimum 20-year design life for highway projects and 75year design life for highway bridges.
The design of IRR projects must take
into consideration:
(a) The existing and planned future
use of the IRR transportation 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.
§ 170.456 When can a tribe request an
exception from the design standards?
A tribe can request an exception
from the design standards in Appendix
B of this subpart under the conditions
in this section. The tribe must submit
its request for a design exception to
the BIA Regional Office for approval. If
the BIA Regional Office has design exception approval authority within
their IRR Stewardship Plan with
FHWA, they may approve or decline
the request; otherwise BIA forwards
the request to FHWA. The engineer of

record must submit written documentation with appropriate supporting
data, sketches, details, and justification based on engineering analysis.
(a) FHWA or BIA may grant exceptions for:
(1) Experimental features on projects;
and
(2) Projects where conditions warrant
that exceptions be made.
(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 have 30 days from
receiving the request to approve or decline the exception.
§ 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, 400 7th St., SW., HFL–1,
Washington, DC 20590. If FHWA denies
a design exception, the tribe may appeal the decision to the next higher
level of review within the Department
of Transportation at the Office of the
FHWA Administrator, 400 7th Street,
SW., HOA–1, Washington, DC 20590.
REVIEW AND APPROVAL OF PLANS,
SPECIFICATIONS, AND ESTIMATES
§ 170.460 What must a project package
include?
(a) The minimum requirements for a
project package are:
(1) Plans;
(2) Specifications; and
(3) Estimates.
(b) In order to receive project approval the following additional items
are required:
(1) A tribal resolution or other authorized document supporting the
project;
(2) Right-of-way clearances;
(3) Required environmental, archeological, and cultural clearances; and

596

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00606

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082

Bureau of Indian Affairs, Interior

§ 170.470

(4) Identification of design exceptions
if used in the plans.
(c) A tribe may include additional
items at its option.

rfrederick on PROD1PC67 with CFR

§ 170.461 May a tribe approve plans,
specifications, and estimates?
A tribe may review and approve plan,
specification, and estimate (PS&E)
project packages for IRR Program
funded projects when:
(a) This function is included in the
tribe’s self-determination contract or
self-governance agreement; or
(b) The tribe is the owner of the IRR
transportation facility or is responsible
for maintaining the facility. In this
case, the tribe must have at least 30
days to review and approve the proposed PS&E package.
§ 170.462 When may a self-determination contract or self-governance
agreement include PS&E review
and approval?
(a) For a BIA or tribally-owned facility, the tribe may assume responsibility to review and approve PS&E
packages under a self-determination
contract or self-governance agreement
if the tribe specifies in the contract or
agreement that:
(1) A licensed professional engineer
will supervise design and approval of
the PS&E package;
(2) A licensed professional engineer
will certify that the PS&E meets or exceeds the design, health, and safety
standards in appendix B to subpart D
for an IRR transportation facility;
(3) An additional licensed professional engineer (either a BIA engineer
or, if the tribe chooses, a non-BIA engineer) will review the PS&E package
when it is at least 95 percent complete;
and
(4) If the project is to be performed
by the tribe, the tribe will provide a
copy of the certification and approved
PS&E package to BIA before the solicitation of the project or notice to proceed.
(b) For a facility maintained by a
public authority other than BIA or a
tribe, in addition to satisfying the requirements of paragraph (a) of this section:
(1) The public authority must have a
chance to review and approve the
PS&E when it is between 75 percent

and 95 percent complete, unless an
agreement between the tribe and the
public authority states otherwise;
(2) If a licensed professional engineer
performs the review and approval when
the PS&E provided is at least 95 percent complete, the second level review
requirement in paragraph (a)(2) of this
section is satisfied; and
(3) The tribe must allow the public
authority at least 30 days for review
and approval. If the public authority
does not meet this deadline or an extension granted by the tribe, the tribe
may proceed with the review in accordance with paragraph (a)(2) of this section.
(c) If a BIA engineer does not complete a review within 30 days under
paragraph (a)(2) of this section, the
tribe may contract its own engineer to
perform the review.
§ 170.463 What should the Secretary do
if a design deficiency is identified?
If a review under § 170.462 identifies a
design deficiency that may jeopardize
public health and safety if the facility
is completed, the Secretary must:
(a) For a tribally-approved PS&E
package, immediately notify the tribe
of the design deficiency and request
that the tribe promptly resolve the deficiency in accordance with the standards in appendix B to subpart D; and
(b) For a BIA-approved PS&E package, promptly resolve the deficiency in
accordance with the standards in appendix B to subpart D and notify the
tribe of the required design changes.
CONSTRUCTION AND CONSTRUCTION
MONITORING
§ 170.470 What are the IRR construction standards?
(a) Appendix B to this subpart lists
design standards that may be used for
roads and bridges.
(1) Tribes may propose road and highway bridge construction standards that
are consistent with or exceed these
standards.
(2) BIA may also use FHWA-approved, State or tribal road and highway bridge construction standards.
(b) For designing and building eligible intermodal projects funded by the
IRR Program, tribes must use either:

597

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00607

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082

§ 170.471

25 CFR Ch. I (4–1–08 Edition)

(1) Nationally recognized standards
for comparable projects; or
(2) Tribally adopted standards that
meet or exceed nationally recognized
standards for comparable projects.
§ 170.471 How are projects administered?
(a) When a tribe carries out an IRR
project under ISDEAA, BIA will monitor performance under the requirements of 25 CFR 900.130 and 900.131(b)(9)
or 25 CFR 1000.243 and 1000.249(c) and
(e), as appropriate. If BIA discovers a
problem during an on-site monitoring
visit, BIA 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-today 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) Only the licensed professional engineer may change an IRR project’s
plans, specifications, and estimates
(PS&E) during construction.
(1) For substantial changes, the original approving agency must review the
change. The approving agency is the
Federal, tribal, State, or local entity
with PS&E approval authority over the
project.
(2) In making any substantial
change, the approving agency must
consult with the affected tribe and the
entity having maintenance responsibility.
(3) A change that exceeds the limits
of available funding may be made only
with the approving agency’s consent.

§ 170.472 What construction records must tribes and BIA keep?
The following table shows which IRR construction records BIA and tribes must
keep and the requirements for access.
Record keeper

Records that must be kept

Access

(a) Tribe ...............................

All records required by ISDEAA and 25 CFR
900.130–131 or 25 CFR 1000.243 and
1000.249, as appropriate.

(b) BIA ..................................

Completed daily reports of construction activities appropriate to the type of construction it
is performing.

BIA is allowed access to tribal IRR construction
records as required under 25 CFR 900.130,
900.131 or 25 CFR 1000.243 and 1000.249,
as appropriate.
Upon reasonable advance request by a tribe,
BIA must provide reasonable access to
records.

§ 170.473 What happens when a construction project ends?

rfrederick on PROD1PC67 with CFR

(a) At the end of a construction
project, the 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, 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 IRR construc-

tion 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) An IRR construction project
closeout is the final accounting of all
IRR construction project expenditures.
It is the closing of the financial books
of the Federal Government for that
construction project. Closeout occurs
after:
(1) The final project inspection concludes; and
(2) The facility owner makes final acceptance of the project.

598

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00608

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082

Bureau of Indian Affairs, Interior

§ 170.502

§ 170.474 Who conducts the project closeout?
The following table shows who must conduct the IRR construction project
closeout and develop the report.
If the project was completed by . . .

then . . .

and the closeout report must . . .

(a) BIA ...............................

The regional engineer or designee is
responsible for closing out the
project and preparing the report.

(b) A tribe ...........................

Agreements negotiated under ISDEAA
specify who is responsible for closeout and preparing the report.

(1) Summarize the construction project records to ensure
compliance requirements have been met;
(2) Review the bid item quantities and expenditures to ensure reasonable conformance with the PS&E and modifications;
(3) Be completed within 120 calendar days of the date of
acceptance of the IRR. construction project; and
(4) Be provided to the affected tribes and the Secretaries.
(1) Meet the requirements of ISDEAA;
(2) Comply with 25 CFR 900.130(d) and
131(b) (10) and 25 CFR 1000.249, as applicable;
(3) Be completed within 120 calendar days of the date of
acceptance of the project; and
(4) Be provided to all parties specified in the agreements
negotiated under ISDEAA.

rfrederick on PROD1PC67 with CFR

PROGRAM REVIEWS AND MANAGEMENT
SYSTEMS
§ 170.500 What program reviews do the
Secretaries conduct?
(a) BIADOT and FHWA annually conduct informal program reviews to examine program procedures and identify
improvements. BIA must notify tribes
of these informal program reviews.
Tribes may send representatives to
these meetings at their own expense.
These reviews may be held in conjunction with either a national BIA transportation meeting or an IRR Program
Coordinating Committee meeting.
(b) FHWA, BIA, and affected tribes
periodically conduct an IRR Program
process review of each BIA regional office’s processes, controls, and stewardship. The review provides recommendations to improve the processes and controls of the following activities that a
BIA Regional Office performs:
(1) Program Management and Oversight;
(2) Transportation planning;
(3) Design;
(4) Contract administration;
(5) Construction;
(6) Financial management; and
(7) Systems management and existing stewardship agreements.
(c) After the IRR process review, the
review team must:
(1) Conduct an exit interview during
which it makes a brief oral report of
findings and recommendations to the
BIA Regional Director and staff; and

(2) Provide a written report of its
findings and recommendations to the
reviewed office, BIA, all participants,
and affected tribal governments and organizations.
§ 170.501 What happens when the review process identifies areas for improvement?
When the review process identifies
areas for improvement:
(a) The regional office must develop a
corrective action plan;
(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 BIA regional office
implements the plan and reports either
annually or biennially to BIADOT and
FHWA on implementation accomplishments.
§ 170.502 Are management systems required for the IRR Program?
(a) To the extent appropriate, the
Secretaries must, in consultation with
tribes, develop and maintain the following systems for the IRR Program:
(1) Pavement management;
(2) Safety management;
(3) Bridge management; and
(4) Congestion management.
(b) Other management systems may
include the following:
(1) Public transportation facilities;
(2) Public transportation equipment;
and

599

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00609

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082

§ 170.503

25 CFR Ch. I (4–1–08 Edition)

(3) Intermodal transportation facilities and systems.
(c) All management systems for the
IRR Program must meet the requirements of 23 CFR part 973.
(d) A tribe may enter into an
ISDEAA contract or agreement to develop, implement, and maintain an alternative tribal management system
for that tribe, provided that such systems are consistent with Federal management systems.
§ 170.503 How are IRR Program management systems funded?
BIA uses IRR Program management
funds to develop the nationwide IRR
Program management systems. If a
tribe elects to develop its own tribal
management system based on the nationwide management system requirements in 23 CFR part 973, it may use
for this purpose either:
(a) The funds defined in 23 U.S.C.
204(j) for IRR Program tribal transportation planning; or
(b) IRR Program construction funds.

(c) Otherwise coordinate with tribal
and State and local governments.
§ 170.506 What are the minimum qualifications for certified bridge inspectors?
The person responsible for the bridge
inspection team must meet the qualifications for bridge inspectors as defined in 23 CFR part 650, subpart C.
§ 170.507 Who reviews bridge inspection reports?
The person responsible for the bridge
inspection team must send a copy of
the inspection report to the BIA regional office. The regional office:
(a) Reviews the report and furnishes
a copy to the affected tribe for review,
comment, and use in programming
transportation projects; and
(b) Sends the report to BIADOT for
quality assurance and inclusion in the
National Bridge Inventory (NBI).
APPENDIX A TO SUBPART D—CULTURAL
RESOURCE AND ENVIRONMENTAL REQUIREMENTS FOR THE IRR PROGRAM

BRIDGE INSPECTION
§ 170.504 When and how are bridge inspections performed?
IRR bridge inspections must be performed at least every 2 years to update
the NBI using criteria that meets or
exceeds applicable Federal standards
(23 CFR 650.305).
(a) Federal standards for bridge inspections are found in 23 CFR part 650,
subpart C.
(b) Tribes may develop alternative
bridge inspection standards, provided
that these standards meet or exceed
applicable Federal standards.

rfrederick on PROD1PC67 with CFR

§ 170.505 How must bridge inspections
be coordinated?
This section applies to bridge inspectors working for BIA; for tribes under
an ISDEAA contract or self-governance
agreement; or for State, county, or
local governments. Before performing
an inspection, inspectors must:
(a) Notify affected tribes and State
and local governments that an inspection will occur;
(b) Offer tribal and State and local
governments the opportunity to accompany the inspectors; and

All BIA work for the IRR Program must
comply with cultural resource and environmental requirements under applicable Federal laws and regulations, including, but not
limited to:
1. 16 U.S.C. 1531, Endangered Species Act.
2. 16 U.S.C. 4601, Land and Water Conservation Fund Act (Section 6(f)).
3. 16 U.S.C. 661–667d, Fish and Wildlife Coordination Act.
4. 23 U.S.C. 138, Preservation of Parklands.
5. 25 U.S.C. 3001–3013, Native American
Graves Protection and Repatriation Act.
6. 33 U.S.C. 1251, Federal Water Pollution
Control Act and Clean Water Act.
7. 42 U.S.C. 7401, Clean Air Act.
8. 42 U.S.C. 4321, National Environmental
Policy Act.
9. 49 U.S.C. 303, Preservation of Parklands.
10. 7 U.S.C. 4201, Farmland Protection Policy Act.
11. 50 CFR part 402, Endangered Species
Act regulations.
12. 7 CFR part 658, Farmland Protection
Policy Act regulations.
13. 40 CFR part 93, Air Quality Conformity
and Priority Procedures for use in Federalaid Highway and Federally-Funded Transit
Programs.
14. 23 CFR part 771, Environmental Impact
and Related Procedures.
15. 23 CFR part 772, Procedures for Abatement of Highway Traffic Noises and Construction Noises.

600

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00610

Fmt 8010

Sfmt 8002

Y:\SGML\214082.XXX

214082

Bureau of Indian Affairs, Interior

§ 170.602

16. 23 CFR part 777, Mitigation of Impacts
To Wetlands and Natural Habitat.
17. 36 CFR part 800, Protection of Historic
Properties.
18. 40 CFR parts 260–271, Resource Conservation and Recovery Act.
19. Applicable tribal/State laws.
20. Other applicable Federal laws and regulations.

APPENDIX B TO SUBPART D—DESIGN
STANDARDS FOR THE IRR PROGRAM

rfrederick on PROD1PC67 with CFR

Depending on the nature of the project,
tribes may use the following design standards. Additional standards may also apply.
To the extent that any provisions of these
standards are inconsistent with ISDEAA,
these provisions do not apply.
1. AASHTO Policy on Geometric Design of
Highways and Streets.
2. AASHTO A Guide for Transportation
Landscape and Environmental Design.
3. AASHTO Roadside Design Guide, latest
edition.
4. AASHTO Guide for Selecting, Locating
and Designing Traffic Barriers, latest edition.
5. AASHTO Standard Specifications for
Highway Bridges, latest edition.
6. AASHTO Guidelines of Geometric Design
of Very Low-Volume Local Roads (ADT less
than or equal to 400).
7. FHWA Federal Lands Highway, Project
Development and Design Manual.
8. FHWA Flexibility in Highway Design.
9. FHWA Roadside Improvements for Local
Road and Streets.
10. FHWA Improving Guardrail Installations and Local Roads and Streets.
11. 23 CFR part 625, Design Standards for
Highways.
12. 23 CFR part 630, Preconstruction Procedures.
13. 23 CFR part 633, Required Contract Provisions.
14. 23 CFR part 635, Construction and Maintenance.
15. 23 CFR part 645, Utilities.
16. 23 CFR part 646, Railroads.
17. 23 U.S.C. 106, PS&E.
18. 23 U.S.C. 109, Standards.
19. DOT Metric Conversion Plan, October
31, 1991.
20. MUTCD Manual of Uniform Traffic
Safety Devices, latest edition.
21. Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects, latest edition.

Subpart E—Service Delivery for
Indian Reservation Roads
FUNDING PROCESS
§ 170.600 What must BIA include in the
notice of availability of funds?
(a) Upon receiving the total fiscal
year of IRR Program funding from
FHWA, BIA will publish a notice of
availability of funds in the FEDERAL
REGISTER that includes the following:
(1) The total funding available to
each region for IRR transportation
planning, design, and construction
projects based on each region’s Relative Need Distribution Factor (RNDF)
defined in subpart C;
(2) The total funding available to
each tribe based on its RNDF, along
with prior year information on IRR
Program funding by tribe that identifies over-funded or advance-funded
tribes; and
(3) A listing of FHWA-approved
IRRTIP projects for each State within
each BIA region.
(b) Upon publication of the notice
under this section, each BIA Regional
Office must provide to each tribe within its region:
(1) A proposed project listing used to
develop the region’s control schedule;
(2) An offer to provide the tribe with
technical assistance in preparing contract proposals;
(3) The various options available to
the tribe for IRR construction projects
(force account methods, direct service,
self-determination contract, and selfgovernance agreement); and
(4) A request for a response from the
tribe within 30 days.
§ 170.601 What happens to the unused
portion of IRR Program management and oversight funds reserved
by the Secretary?
BIA distributes any unused IRR Program management and oversight funds
to its Regional Offices using the RNDF
(see subpart C). The Regional Offices
use the funds for additional construction activities.
§ 170.602 If a tribe incurs unforeseen
construction costs, can it get additional funds?
Yes. To the extent feasible, the Secretary must pay for all costs incurred

601

VerDate Aug<31>2005

08:39 Apr 28, 2008

Jkt 214082

PO 00000

Frm 00611

Fmt 8010

Sfmt 8010

Y:\SGML\214082.XXX

214082