# Tribal Transportation Program

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2014-29604

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** December 19, 2014
- **Citation:** 79 FR 76192

## Text

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
OIRA_Submission@omb.eop.gov.
Please send a copy of your comments to the person listed in the
FOR FURTHER INFORMATION CONTACT
section of this notice.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action, (202) 273-4680;
elizabeth.appel@bia.gov.
You may review the information collection request online at
http://www.reginfo.gov.
Follow the instructions to review Department of the Interior collections under review by OMB.

SUPPLEMENTARY INFORMATION:

I. Executive Summary of Rule

The proposed rule would:

• Revise 25 CFR part 170 to comply with legislation governing the Tribal Transportation Program;

• Update the regulation to reflect changes in the delivery options for the Tribal Transportation Program that are available to tribal governments;

• Make technical corrections to clarify program-related responsibilities and requirements for tribal governments, the Bureau of Indian Affairs, and the Federal Highway Administration (FHWA); and

• Clarify the requirements for proposed roads and access roads to be added to or remain in the National Tribal Transportation Facility Inventory (formerly known as the Indian Reservation Roads Inventory).

• Remove certain sections of the current rule that were provided for informational purposes only while directing the reader to BIA or FHWA Web sites where the most current information is now available.

BIA and FHWA distributed draft revisions to 25 CFR part 170 to tribes and published a notice in the
Federal Register
of consultations on the draft that were conducted at three locations in May of 2013.
See
78
Federal Register
21861 (April 12, 2013). Written comments were accepted at the consultations as well as email and mail until June 14, 2013.

Consultation sessions on the proposed rule will be held on the following dates at the following locations:

Meeting date
Location
Time

January 13, 2015
Sacramento, CA
9 a.m.-4:00 p.m.

January 15, 2015
Phoenix, AZ
9 a.m.-4:00 p.m.

January 27, 2015
Minneapolis, MN
9 a.m.-4:00 p.m.

January 29, 2015
Oklahoma City, OK
9 a.m.-4:00 p.m.

February 10, 2015
Anchorage, AK
9 a.m.-4:00 p.m.

February 12, 2015
Seattle, WA
9 a.m.-4:00 p.m.

Meeting Agenda (All Times Local)

9:00 a.m.-9:15 a.m. Welcome and Introductions

9:15 a.m.-10:30 a.m. Review Proposed Rule—Subparts A-C

10:30 a.m.-10:45 a.m. Break

11:45 a.m.-11:45 a.m. Review Proposed Rule—Subparts D-F

11:45 a.m.-1:00 p.m. Lunch

1:00 p.m.-2:15 p.m. Continue Review—Subparts G-H

2:15 p.m.-2:30 p.m. Break

2:30 p.m.-3:45 p.m. Questions and Answers

3:45 p.m.-4:00 p.m. Closing Comments

4:00 p.m. Adjourn

II. Background

Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141, a reauthorization of the surface transportation act, was signed into law on July 6, 2012, and became effective on October 1, 2012. MAP-21 was extended by the Highway and Transportation Funding Act of 2014, Public Law 113-159 (August 8, 2014).

Section 1119 of MAP-21 struck the existing laws governing the Indian Reservation Roads Program from 23 U.S.C. 201-204, and established the Tribal Transportation Program (TTP) under 23 U.S.C. 201 and 202. In addition, Section 1103 of MAP-21 provided new definitions for terms utilized in the TTP.

Section 1119 of MAP-21 created a new formula for distribution of TTP funds among tribes, which had the effect of overriding the existing Relative Need Distribution Formula (RNDF) that was published in 2004 at 25 CFR part 170, subpart C.
See
23 U.S.C. 202(b)(3). Although the RNDF is no longer applicable under the new TTP formula, certain historical aspects of the former RNDF continue to be relevant in the new TTP formula. MAP-21 also identified how certain roads included in the National Tribal Transportation Program Facility Inventory (NTTFI) impact funding within the new formula.
See
23 U.S.C. 202(b)(1).

The current regulation was published in the
Federal Register
in 2004 (69 FR 43090, July 19, 2004). Congress later enacted the Safe, Accountable, Flexible and Efficient Transportation Equity Act—A Legacy for Users (SAFETEA-LU), Public Law 100-59 (August 10, 2005). Certain provisions of 25 CFR part 170 were amended as a result of SAFETEA-LU but the regulation was not revised at that time. The primary purpose of the proposed rule is to bring the regulation into compliance with MAP-21, which amends or renders obsolete parts of the existing rule.

There have also been significant changes in how TTP is delivered to tribes since 25 CFR part 170 was published in 2004, and the proposed rule reflects these changes. When 25 CFR part 170 was published, BIA delivered the IRR program either by direct service to tribes or by contracting with tribes to carry out certain program functions under the Indian Self-Determination and Education Assistance Act. (P.L. 93-638, as amended). Under SAFETEA-LU, FHWA and the BIA developed an additional delivery option known as “program agreements” which allow tribes that meet certain administrative and financial management requirements to carry out all but the inherently Federal functions of the TTP. MAP-21 carried forward the authority of SAFETEA-LU in this area and the proposed rule incorporates these changes.

Additionally, the proposed rule codifies the requirements that Proposed Roads or Access Roads must meet in order to be added to or remain in the NTTFI. Tribes, BIA, and FHWA have identified the lack of these requirements for Proposed and Access Roads to be added to or remain in the NTTFI as an area of concern in the current regulation for many years. Proposed roads are currently defined by 25 CFR 170.5 as “a road which does not currently exist and needs to be constructed.” A primary access route is the shortest practicable route connecting two points, including roads between villages, roads to landfills, roads to drinking water sources, roads to natural resources identified for economic development, and roads that provide access to intermodal termini, such as airports, harbors, or boat landings.
See
23 U.S.C. 202(b)(1).

During 2012, BIA and FHWA conducted thirteen tribal consultation meetings throughout the country on a joint BIA and FHWA recommendation for changing how proposed roads and access roads would contribute to the RNDF for Indian Reservation Roads Program funds.
See
25 CFR part 170, subpart C. Although MAP-21 replaces the RNDF as discussed above, the proposed rule would clarify the requirements that proposed roads or access roads must meet in order to be added to or remain in the NTTFI.

III. Explanation of Revisions

Subpart A—General Provisions and Definitions

This subpart is revised to:

• Be consistent with the language used throughout 23 U.S.C. 201 and 202;

• Outline the policies, guidance manuals, directives, and procedures that govern the TTP under the program delivery options that are available to tribes; and

• Include new and updated definitions that are used throughout the rule.

Subpart B—Tribal Transportation Program Policy and Eligibility

This subpart is revised to be consistent with MAP-21 by:

• Revising the language discussing Federal, tribal, state, and local governments' coordination, collaboration, and consultation responsibilities;

• Updating the list of eligible uses of TTP funding and the point of contact information for fund eligibility requests;

• Updating the regulation regarding cultural access roads, toll roads, recreation, tourism, trails, airport access roads, transit facilities and seasonal transportation routes;

• Changing the name “Indian Local Technical Assistance Program” was changed to “Tribal Technical Assistance Centers” (TTACs).

MAP-21 established a TTP safety funding set-aside, and the proposed rule describes the eligible uses and distribution of these funds. The TTP Coordinating Committee was established by the current rule. The proposed rule updates the responsibilities of the Committee regarding information dissemination requirements and scheduling of Committee meetings.

Subpart C—Tribal Transportation Program Funding

This subpart is revised as to do the following:

• Remove the chart showing the flow of TTP funds.

• Reflect the statutory formula and methodology established by MAP-21 to distribute TTP funds including new formula factors, set-asides, supplemental funding and transition period.

• Remove the sections of the current regulation governing the Indian Reservation Roads Program High Priority Projects because Section 1123 of MAP-21 established the Tribal High Priority Projects Program as a separate, stand-alone program.

• Revise how the National Tribal Transportation Facility Inventory (NTTFI) relates to the long-range tribal transportation planning process.

• Revise the appeal process for fund distribution to be consistent with MAP-21.

• Remove the appendices to Subpart C of the current regulation because they are not applicable to the statutory funding formula established by MAP-21.

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

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

Subpart E—Service Delivery for Tribal Transportation Program

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

Subpart F—Program Oversight and Accountability

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

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.

Citation 25 CFR 170
Information

Average
number of hours

Average
number per year

Estimated
annual burden
hours

170.444
Provide and Review Information
20
141
2,820

170.411
Long Range Transportation Plan Contents
40
113
4,520

170.421
Reporting Requirement for Tribal Transportation Improvement Program (TTIP)
10
281
2,810

170.420
Reporting Requirement for Tribal Priority List
10
281
2,810

170.412
Submission of Long Range Transportation Plan to BIA and Public, and Further Development
40
113
4,520

170.437
Notice of Requirements for Public Hearing

1/2

205
103

170.439
Record keeping Requirement—Record of Public Hearing
1
205
205

170.456
Provide Information for Exception
4
10
40

OMB Control No. 1076-0161 currently authorizes the collections of information contained in 25 CFR part 170. If this proposed rule is finalized, the annual burden hours for respondents will decrease by approximately 1,800 hours because two previously identified information collection requirements have been deleted under this rule.

You may review the information collection request online at
http://www.reginfo.gov.
Follow the instructions to review Department of the Interior collections under review by OMB. We invite comments on the information collection requirements in the proposed rule. You may submit comments to OMB by facsimile to (202) 395-5806 or you may send an email to the attention of the OMB Desk Officer for the Department of the Interior:
OIRA_Submission@omb.eop.gov.
Please send a copy of your comments to the person listed in the
FOR FURTHER INFORMATION CONTACT
section of this notice.
Note that the request for comments on the rule and the request for comments on the information collection are separate.
To best ensure consideration of your comments on the information collection, we encourage you to submit them by January 20, 2015; while OMB has 60 days from the date of publication to act on the information collection request, OMB may choose to act on or after 30 days. Comments on the information collection should address: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) ways we could enhance the quality, utility and clarity of the information to be collected; and (d) ways we could minimize the burden of the collection of the information on the respondents, such as through the use of automated collection techniques or other forms of information technology. Please note that an agency may not sponsor or request, and an individual need not respond to, a collection of information unless it displays a valid OMB Control Number.

J. National Environmental Policy Act

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

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

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

L. Clarity of This Regulation

We are required by E.O. 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(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?

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?

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

§ 170.1
What does this part do?
This part provides rules and a funding formula for the Department of the Interior (DOI), in cooperation with the Department of Transportation (DOT), to implement the Tribal Transportation Program (TTP). Included in this part are other Title 23 and Title 25 transportation programs administered by the Secretary of the Interior and the Secretary of Transportation (Secretaries) and implemented by tribes and tribal organizations under the Indian Self- Determination and Education Assistance Act of 1975 (ISDEAA), as amended, program agreements, and other appropriate agreements.

§ 170.2
What policies govern the TTP?
(a) The Secretaries' policy for the TTP is to:

(1) Provide a uniform and consistent set of rules;

(2) Foster knowledge of the programs by providing information about them and the opportunities that they create;

(3) Facilitate tribal planning, conduct, and administration of the programs;

(4) Encourage inclusion of these programs under self-determination contracts, self-governance agreements, program agreements, and other appropriate agreements;

(5) Make available all contractible non-inherently Federal administrative functions under self-determination contracts, self-governance agreements,

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.

§ 170.3
When do other requirements apply to the TTP?
TTP policies, guidance, and directives apply, to the extent permitted by law, only if they are consistent with this part and 25 CFR parts 900 and 1000. See 25 CFR 900.5 for when a tribe must comply with other unpublished requirements.

§ 170.4
How does this part affect existing tribal rights?
This part does not:

(a) Affect tribes' sovereign immunity from suit;

(b) Terminate or reduce the trust responsibility of the United States to tribes or individual Indians;

(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.

§ 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

(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

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)

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.

§ 170.6
Information collection.

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

Subpart B—Tribal Transportation Program Policy and Eligibility

Consultation, Collaboration, Coordination

§ 170.100
What do the terms “consultation,” “collaboration,” and “coordination” mean?

(a)
Consultation
means government-to-government communication in a timely manner by all parties about a proposed or contemplated decision in order to:

(1) Secure meaningful tribal input and involvement in the decision-making process; and

(2) Advise the tribe of the final decision and provide an explanation.

(b)
Collaboration
means that all parties involved in carrying out planning and project development work together in a timely manner to achieve a common goal or objective.

(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.

§ 170.101
What is the TTP consultation and coordination policy?
(a) The TTP's government-to-government consultation and coordination policy is to foster and improve communication, cooperation, and coordination among tribal, Federal, State, and local governments and other transportation organizations when undertaking the following, similar, or related activities:

(1) Identifying high-accident locations and locations for improving both vehicle and pedestrian safety;

(2) Developing State, metropolitan, regional, TTP, and tribal transportation improvement programs that impact tribal lands, communities, and members;

(3) Developing short and long-range transportation plans;

(4) Developing TTP transportation projects;

(5) Developing environmental mitigation measures necessary to protect and/or enhance Indian lands and the environment, and counteract the impacts of the projects;

(6) Developing plans or projects to carry out the Tribal Transportation Facility Bridge Program identified in 23 U.S.C. 202(d);

(7) Developing plans or projects for disaster and emergency relief response and the repair of eligible damaged TTP transportation facilities;

(8) Assisting in the development of State and tribal agreements related to the TTP;

(9) Developing and improving transit systems serving Indian lands and communities;

(10) Assisting in the submission of discretionary grant applications for State and Federal funding for TTP transportation facilities; and

(11) Developing plans and projects for the Safety funding identified in 23 U.S.C. 202(e).

(b) Tribes and State and Federal Government agencies may enter into intergovernmental Memoranda of Agreement to streamline and facilitate consultation, collaboration, and coordination.

(c) DOI and DOT operate within a government-to-government relationship with federally recognized tribes. As a critical element of this relationship, these agencies assess the impact of Federal transportation policies, plans, projects, and programs on tribal rights and interests to ensure that these rights and concerns are appropriately considered.

§ 170.103
What goals and principles guide program implementation?
When undertaking transportation activities affecting tribes, the Secretaries should, to the maximum extent permitted by law:

(a) Establish regular and meaningful consultation and collaboration with affected tribal governments, including facilitating the direct involvement of tribal governments in short- and long-range Federal transportation planning efforts;

(b) Promote the rights of tribal governments to govern their own internal affairs;

(c) Promote the rights of tribal governments to receive direct transportation services from the Federal Government or to enter into agreements to directly operate any tribally related transportation programs serving tribal members;

(d) Ensure the continuation of the trust responsibility of the United States to tribes and Indian individuals;

(e) Reduce the imposition of unfunded mandates upon tribal governments;

(f) Encourage flexibility and innovation in the implementation of the TTP;

(g) Reduce, streamline, and eliminate unnecessarily restrictive transportation policies, guidelines, or procedures;

(h) Ensure that tribal rights and interests are appropriately considered during program development;

(i) Ensure that the TTP is implemented consistent with tribal sovereignty and the government-to-government relationship; and

(j) Consult with, and solicit the participation of, tribes in the development of the annual BIA budget proposals.

§ 170.103
Is consultation with tribal governments required before obligating TTP funds for direct service activities?
Yes. Consultation with tribal governments is required before obligating TTP funds for direct service activities. Before obligating TTP funds on any project for direct service activities, the Secretary must:

(a) Consult with the affected tribe to determine tribal preferences concerning the program, project, or activity; and

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

§ 170.104
Are funds available for consultation, collaboration, and coordination activities?
Yes. Funds are available for consultation, collaboration, and coordination activities. To fund consultation, collaboration, and coordination of TTP activities, tribes may use:

(a) The tribes' TTP allocations;

(b) Tribal Priority Allocation funds;

(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.

§ 170.105
When must State governments consult with tribes?
As identified in 23 U.S.C. 134 and 135, States will develop their State Transportation Improvement Program (STIP) in consultation with tribes and the Secretary in those areas under Indian tribal jurisdiction. This includes providing for a process that coordinates transportation planning efforts carried out by the State with similar efforts carried out by tribes. Regulations governing STIPs can be found at 23 CFR part 450.

§ 170.106
Should planning organizations and local governments consult with tribes when planning for transportation projects?
Yes. Planning organizations and local governments should consult with tribes when planning for transportation projects. The Department's policy is to foster and improve communication, cooperation, and coordination among metropolitan planning organizations (MPOs), regional planning organizations (RPOs), local governments, municipal governments, and tribes on transportation matters of common concern. Accordingly, planning organizations, and local governments should consult with tribal governments when planning for transportation projects.

§ 170.107
Should tribes and BIA consult with planning organizations and local governments in developing projects?
Yes. Tribes and BIA should consult with planning organizations and local governments in developing projects.

(a) All regionally significant TTP projects must be:

(1) Developed in cooperation with State and metropolitan planning organizations; and

(2) Included in a FHWA approved TTPTIP for inclusion in State and metropolitan plans.

(b) BIA and tribes are encouraged to consult with States, metropolitan and regional planning organizations, and local and municipal governments on transportation matters of common concern.

§ 170.108
How do the Secretaries prevent discrimination or adverse impacts?
The Secretaries ensure that non-discrimination and environmental justice principles are integral TTP program elements. The Secretaries consult with tribes early in the program development process to identify potential discrimination and to recommend corrective actions to avoid disproportionately high and adverse effects on tribes and Native American populations.

§ 170.109
How can State and local governments prevent discrimination or adverse impacts?
(a) Under 23 U.S.C. 134 and 135, and 23 CFR part 450, State and local government officials will consult and work with tribes in the development of programs to:

(1) Identify potential discrimination; and

(2) Recommend corrective actions to avoid disproportionately high and adverse effects on tribes and Native American populations.

(b) Examples of adverse effects include, but are not limited to:

(1) Impeding access to tribal communities or activities;

(2) Creating excessive access to culturally or religiously sensitive areas;

(3) Negatively affecting natural resources, trust resources, tribal businesses, religious, and cultural sites;

(4) Harming indigenous plants and animals; and

(5) Impairing the ability of tribal members to engage in commercial, cultural, and religious activities.

§ 170.110
What if discrimination or adverse impacts occur?
If discrimination or adverse impacts occur, a tribe should take the following steps in the order listed:

(a) Take reasonable steps to resolve the problem directly with the State or local government involved; and

(b) Contact BIA, FHWA, or the Federal Transit Authority (FTA), as appropriate, to report the problem and seek assistance in resolving the problem.

Eligible Uses of TTP Funds

§ 170.111
What activities may be carried out using TTP funds?
TTP funds will be used to pay the cost of items identified in 23 U.S.C. 202(a)(1). A more detailed list of eligible activities is available at Appendix A to this subpart. Each of the items identified in Appendix A must be interpreted in a manner that permits, rather than prohibits, a proposed use of funds.

§ 170.112
What activities are not eligible for TTP funding?
TTP funds cannot be used for any of the following:

(a) Structures and erosion protection unrelated to transportation and roadways;

(b) General or tribal planning not involving transportation;

(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 § 170.113; or

(f) Condemnation of land for recreational trails.

§ 170.113
How can a tribe determine whether a new use of funds is allowable?
(a) A tribe that proposes new uses of TTP funds must ask BIA or FHWA in writing whether the proposed use is eligible under Federal law.

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

(2) In cases involving eligibility questions that refer to the TTP or 23 U.S.C., BIA will refer an inquiry to FHWA for decision. FHWA must provide a written response to the requesting tribe within 45 days of

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

§ 170.114
What restrictions apply to the use of a tribal transportation facility?
(a) All tribal transportation facilities listed in the approved National Tribal Transportation Facility Inventory must be open and available for public use as required by 23 U.S.C. 101(a)(31). However, the public authority having jurisdiction over these roads or the Secretary, in consultation with a tribe and applicable private landowners, may restrict road use or close roads temporarily when:

(1) Required for public health and safety or as provided in § 170.115.

(2) Conducting engineering and traffic analysis to determine maximum speed limits, maximum vehicular size, and weight limits, and identify needed traffic control devices; and

(3) Erecting, maintaining, and enforcing compliance with signs and pavement markings.

(b) Consultation is not required whenever the conditions in paragraph (a) of this section involve immediate safety or life-threatening situations.

(c) A tribal transportation facility owned by a tribe or BIA may be permanently closed only when the tribal government and the Secretary agree. Once this agreement is reached, BIA must remove the facility from the NTTFI and it will no longer generate funding and be ineligible for expenditure of any TTP funds.

§ 170.115
What is a cultural access road?
(a) A cultural access road is a public road that provides access to sites for cultural purposes as defined by tribal traditions, which may include, for example:

(1) Sacred and medicinal sites;

(2) Gathering medicines or materials such as grasses for basket weaving; and

(3) Other traditional activities, including, but not limited to, subsistence hunting, fishing and gathering.

(b) A tribal government may unilaterally designate a tribal road as a cultural access road. A cultural access road designation is an entirely voluntary and internal decision made by the tribe to help it and other public authorities manage, protect, and preserve access to locations that have cultural significance.

(c) In order for a tribal government to designate a non-tribal road as a cultural access road, it must enter into an agreement with the public authority having jurisdiction over the road.

(d) Cultural access roads may be included in the National Tribal Transportation System Inventory if they meet the definition of a TTP facility.

§ 170.116
Can a tribe close a cultural access road?
(a) A tribe with jurisdiction over a cultural access road can close it. The tribe can do this:

(1) During periods when the tribe or tribal members are involved in cultural activities; and

(2) In order to protect the health and safety of the tribal members or the general public.

(b) Cultural access roads designated through an agreement with a public authority may only be closed according to the provisions of the agreement. See § 170.115(c).

Seasonal Transportation Routes

§ 170.117
Can TTP funds be used on seasonal transportation routes?
Yes. A tribe may use TTP funds on seasonal transportation routes that are included in the national tribal transportation facility inventory.

(a) Standards for seasonal transportation routes are found in § 170.454. A tribe can also develop or adopt standards that are equal to or exceed these standards.

(b) To help ensure the safety of the traveling public, construction of a seasonal transportation route requires a right-of-way, easement, or use permit.

TTP Housing Access Roads

§ 170.118
What terms apply to access roads?

(a)
TTP housing access road
means a public road on the TTP System that provides access to a housing cluster.

(b)
TTP housing street
means a public road on the TTP System that provides access to adjacent homes within a housing cluster.

(c)
Housing cluster
means three or more existing or proposed housing units.

§ 170.119
Are housing access roads and housing streets eligible for TTP funding?
Yes. TTP housing access roads and housing streets on public rights-of-way are eligible for construction, reconstruction, and rehabilitation funding under the TTP. Tribes, following the transportation planning process as required in subpart D, may include housing access roads and housing street projects on the Tribal Transportation Improvement Program (TTIP).

Toll, Ferry, and Airport Facilities

§ 170.120
How can tribes use Federal highway funds for toll and ferry facilities?
(a) A tribe can use Federal-aid highway funds, including TTP funds, to study, design, construct, and operate toll highways, bridges, and tunnels, as well as ferry boats and ferry terminal facilities. The following table shows how a tribe can initiate construction of these facilities.

To initiate construction of . . .
A tribe must . . .

(1) Toll highway, bridge, or tunnel

(i) Meet and follow the requirements in 23 U.S.C. 129; and.

(ii) If TTP funds are used, enter into a self-governance.

(2) Ferry boat or ferry
Meet and follow the requirements in 23 U.S.C. 129(c).

(b) A tribe can use TTP funds to fund 100 percent of the conversion or construction of a toll facility.

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

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

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

§ 170.122
When can a tribe use TTP funds for airport facilities?
(a) A tribe can use TTP funds for construction of airport and heliport access roads, if the access roads are open to the public.

(b) A tribe cannot use TTP funds to construct or improve runways, airports or heliports. Tribes can use TTP funds for maintaining airport runways, heliport pads and lighting under § 170.805.

Recreation, Tourism, and Trails

§ 170.123
Can a tribe use Federal funds for its recreation, tourism, and trails program?
Yes. A tribe, tribal organization, tribal consortium, or BIA may use TTP funds for recreation, tourism, and trails programs if the programs are included in the TTPTIP. Additionally, the following Federal programs may be possible sources of Federal funding for recreation, tourism, and trails projects and activities;

(a) Federal Lands Access Program (23 U.S.C. 204);

(b) Tribal High Priority Projects Program (Section 1123 of MAP-21);

(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.

§ 170.124
How can a tribe obtain funds?
(a) To receive funding for programs that serve recreation, tourism, and trails goals, a tribe should:

(1) Identify a program meeting the eligibility guidelines for the funds and have it ready for development; and

(2) Have a viable project ready for improvement or construction, including necessary permits.

(b) Tribes seeking to obtain funding from a State under the programs identified in § 170.123(c) through (g) should contact the State directly to determine eligibility, contracting opportunities, funding mechanisms, and project administration requirements.

(c) In order to expend any Federal transportation funds, a tribe must ensure that the eligible project/program is listed on an FHWA approved TIP or STIP.

§ 170.125
What types of activities can a recreation, tourism, and trails program include?
(a) The following are examples of activities that tribes and tribal organizations may include in a recreation, tourism, and trails program:

(1) Transportation planning for tourism and recreation travel;

(2) Adjacent public vehicle parking areas;

(3) Development of tourist information and interpretative signs;

(4) Provision for non-motorized trail activities including pedestrians and bicycles;

(5) Provision for motorized trail activities including all-terrain vehicles, motorcycles, snowmobiles, etc.;

(6) Construction improvements that enhance and promote safe travel on trails;

(7) Safety and educational activities;

(8) Maintenance and restoration of existing recreational trails;

(9) Development and rehabilitation of trailside and trailhead facilities and trail linkage for recreational trails;

(10) Purchase and lease of recreational trail construction and maintenance equipment;

(11) Safety considerations for trail intersections;

(12) Landscaping and scenic enhancement (see 23 U.S.C. 319);

(13) Bicycle Transportation and pedestrian walkways (see 23 U.S.C. 217); and

(14) Trail access roads.

(b) The items listed in paragraph (a) of this section are not the only activities that are eligible for recreation, tourism, and trails funding. The funding criteria may vary with the specific requirements of the programs.

(c) Tribes may use TTP funds for any activity that is eligible for Federal funding under any provision of title 23 U.S.C.

§ 170.126
Can roads be built in roadless and wild areas?
Under 25 CFR part 265, no roads can be built in an area designated as a roadless and wild area.

Highway Safety Functions

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

(a) Funds are made available for a tribe's highway safety activities through a TTP set-aside established in 23 U.S.C. 202(e). The funds are to be allocated based on identification and analysis of highway safety issues and opportunities on tribal lands. A call for projects will be made annually for these funds through a Notice of Funding Availability published in the
Federal Register
.

(b) Tribes may use their TTP funds made available through 23 U.S.C. 202(b) for highway safety activities as well as seek grant and program funding from appropriate State and local agencies and private grant organizations.

(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.

§ 170.128
What activities are eligible for TTP safety funds?
(a) Funds made available under 23 U.S.C. 202(e) may be used for projects and activities that improve safety in one or more of the following categories:

(1) Planning activities;

(2) Enforcement and emergency management;

(3) Education; and

(4) Engineering projects.

(b) Eligible activities for each of the categories listed in paragraph (a) of this section will be included in the annual Notice of Funding Availability. Other activities proposed by tribes must be requested from BIA or FHWA under § 170.113.

(c) The BIA Indian Highway Safety Program may be another resource for safety funding.

§ 170.129
How will tribes receive safety funds?
Funds available to tribes may be included in the tribe's self-determination contracts, self-governance agreements, program agreements, and other appropriate agreements.

§ 170.130
How can tribes obtain non-TTP funds for highway safety projects?
There are two methods to obtain National Highway Traffic Safety Administration (NHTSA) and other, non-TTP, FHWA safety funds for highway safety projects:

(a) FHWA provides safety funds to BIA under 23 U.S.C. 402. BIA annually solicits proposals from tribes for use of these funds. Proposals are processed under 25 CFR part 181. Tribes may request an ISDEAA contract or agreement, or other appropriate agreement for these projects.

(b) FHWA provides funds to the States under 23 U.S.C. 402 and 405. States annually solicit proposals from tribes and local governments. Tribes seeking to obtain funding from the States under these programs should contact the State directly to determine eligibility, contracting opportunities, funding mechanisms and project administration requirements.

Transit Facilities

§ 170.131
How do tribes identify transit needs?
Tribes identify transit needs during the tribal transportation planning process (see subpart D of this part). Transit projects using TTP funds must be included in the FHWA-approved TTPTIP.

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

Title 23 U.S.C. authorizes use of TTP funds for transit facilities as defined in this part. There are many additional sources of Federal funds for tribal transit programs, including the Federal programs listed in this section. Note that each program has its own terms and conditions of assistance. For further information on these programs and their use for transit, contact the FTA Regional Transit Assistance Program at
www.nationalrtap.org.

(a) Department of Transportation: Formula Grants for Public Transportation on Indian Reservations under 49 U.S.C. 5311.

(b) Department of Agriculture: Community facilities loans; rural development loans; business and industrial loans; rural enterprise grants; commerce, public works and economic development grants; and economic adjustment assistance.

(c) Department of Housing and Urban Development: Community development block grants, supportive housing, tribal housing loan guarantees, resident opportunity and support services.

(d) Department of Labor: Native American employment and training, welfare-to-work grants.

(e) Department of Transportation: Welfare-to-Work, Tribal Transportation Program, transportation and community and systems preservation, Federal transit capital improvement grants, public transportation for non-urbanized areas, capital assistance for elderly and disabilities transportation, education, and Even Start.

(f) Department of Health and Human Services: Programs for Native American elders, community service block grants, job opportunities for low-income individuals, Head Start (capital or operating), administration for Native Americans programs, Medicaid, HIV Care Grants, Healthy Start, and the Indian Health Service.

§ 170.133
May a tribe or BIA use TTP funds as matching funds?
TTP funds may be used to meet matching or cost participation requirements for any Federal or non-Federal transit grant or program.

§ 170.134
What transit facilities and activities are eligible for TTP funding?
Transit facilities and activities eligible for TTP funding include, but are not limited to:

(a) Acquiring, constructing, operating, supervising or inspecting new, used or refurbished equipment, buildings, facilities, buses, vans, water craft, and other vehicles for use in public transportation;

(b) Transit-related intelligent transportation systems;

(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

§ 170.135
What is the TTP Coordinating Committee?
(a) Under this part, the Secretaries will establish a TTP Coordinating

Committee that:

(1) Provides input and recommendations to BIA and FHWA in developing TTP regulations, policies and procedures; and

(2) Supplements government-to-government consultation by coordinating with and obtaining input from tribes, BIA, and FHWA.

(b) The Committee consists of 24 tribal regional representatives (two from each BIA Region) and two non-voting Federal representatives (FHWA and BIA).

(c) The Secretary must select the regional tribal representatives from nominees officially submitted by the region's tribes.

(1) To the extent possible, the Secretary must make the selection so that there is representation from a broad cross-section of large, medium, and small tribes.

(2) Tribal nominees must be tribal governmental officials or tribal employees with authority to act for the tribal government.

(d) For purposes of continuity, the Secretary will appoint tribal representatives from each BIA region to 3-year terms in a manner that only one-third of the tribal representatives change every year.

(e) The Secretary will provide guidance regarding replacement of representatives should the need arise.

§ 170.136
What are the TTP Coordinating Committee's responsibilities?
(a) Committee responsibilities are to provide input and recommendations to BIA and FHWA during the development or revision of:

(1) BIA/FHWA TTP Stewardship Plan;

(2) TTP policy and procedures;

(3) TTP eligible activities determination;

(4) TTP transit policy;

(5) TTP regulations;

(6) TTP management systems policy and procedures; and

(7) National tribal transportation needs.

(b) The Committee may establish work groups to carry out its responsibilities.

(c) The Committee also reviews and provides recommendations on TTP national concerns (including the implementation of this part) brought to its attention.

(d) Committee members are responsible for disseminating TTP Coordinating Committee information and activities to tribes within their respective BIA Regions.

§ 170.137
How does the TTP Coordinating Committee conduct business?
The Committee holds at least two meetings a year. In order to maximize participation by the tribal public, the Committee shall submit to the Secretary its proposed meeting dates and locations for each fiscal year no later than October 1st. Subject to approval by the Secretary, additional Committee meetings may be called with the consent of one-third of the Committee members, or by BIA or FHWA. The Committee conducts business at its meetings as follows:

(a) A quorum consists of representation from eight BIA Regions.

(b) The Committee will operate by consensus or majority vote, as determined by the Committee in its protocols.

(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

§ 170.138
What are Tribal Technical Assistance Centers?

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

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

TTP funds must be used to pay the cost of those items identified in 23 U.S.C. 202(a)(1), including:

(a) TTP funds can be used for the following planning and design activities:

(1) Planning and design of Tribal Transportation Facilities.

(2) Transportation planning activities, including planning for tourism and recreational travel.

(3) Development, establishment, and implementation of tribal transportation management systems such as safety, bridge, pavement, and congestion management.

(4) Tribal transportation plans and transportation improvement programs (TIPS).

(5) Coordinated technology implementation program (CTIP) projects.

(6) Traffic engineering and studies.

(7) Identification and evaluation of accident prone locations.

(8) Tribal transportation standards.

(9) Preliminary engineering studies.

(10) Interagency program/project formulation, coordination and review.

(11) Environmental studies and archeological investigations directly related to transportation programs and projects.

(12) Costs associated with obtaining permits and/or complying with tribal, Federal, State, and local environmental, archeological and natural resources regulations and standards.

(13) Development of natural habitat and wetland conservation and mitigation plans, including plans authorized under the Water Resources Development Act of 1990, 104 Stat. 4604 (Water Resources Development Act).

(14) Architectural and landscape engineering services related to transportation programs.

(15) Engineering design related to transportation programs, including permitting activities.

(16) Inspection of bridges and structures.

(17) Tribal Transportation Assistance Centers (TTACs).

(18) Safety planning, programming, studies and activities.

(19) Tribal employment rights ordinance (TERO) fees.

(20) Purchase or lease of advanced technological devices used for transportation planning and design activities such as global positioning units, portable weigh-in-motion systems, hand held data collection units, related hardware and software, etc.

(21) Planning, design and coordination for Innovative Readiness Training projects.

(22) Transportation planning and project development activities associated with border crossings on or affecting tribal lands.

(23) Public meetings and public involvement activities.

(24) Leasing or rental of equipment used in transportation planning or design programs.

(25) Transportation-related technology transfer activities and programs.

(26) Educational activities related to bicycle safety.

(27) Planning and design of mitigation of damage to wildlife, habitat, and ecosystems caused by a transportation project.

(28) Evaluation of community impacts such as land use, mobility, access, social, safety, psychological, displacement, economic, and aesthetic impacts.

(29) Acquisition of land and interests in land required for right-of-way, including control of access thereto from adjoining lands, the cost of appraisals, cost of surveys, cost of examination and abstract of title, the cost of certificate of title, advertising costs, and any fees incidental to such acquisition.

(30) Cost associated with relocation activities including financial assistance for displaced businesses or persons and other activities as authorized by law.

(31) On the job education including classroom instruction and pre-apprentice training activities related to transportation planning and design.

(32) Other eligible activities as approved by FHWA.

(33) Any additional activities identified by TTP Coordinating Committee guidance and approved by the appropriate Secretary (see § 170.136).

(34) Indirect general and administrative costs; and

(35) Other eligible activities described in this part.

(b) TTP funds can be used for the following construction and improvement activities:

(1) Construction, reconstruction, rehabilitation, resurfacing, restoration, and operational improvements for tribal transportation facilities.

(2) Construction or improvement of tribal transportation facilities necessary to accommodate other transportation modes.

(3) Construction of toll roads, highway bridges and tunnels, and toll and non-toll ferry boats and terminal facilities, and approaches thereto (except when on the Interstate System) to the extent permitted under 23 U.S.C. 129.

(4) Construction of projects for the elimination of hazards at railway-highway crossings, including the separation or protection of grades at crossings, the reconstruction of existing railroad grade crossing structures, and the relocation of highways to eliminate grade crossings.

(5) Installation of protective devices at railway-highway crossings.

(6) Transit facilities, whether publicly or privately owned, that serve Indian reservations and other communities or that provide access to or are located within an Indian reservation or community (see §§ 170.131 through 170.134 for additional information).

(7) Engineered pavement overlays that add to the structural value and design life or increase the skid resistance of the pavement.

(8) Tribally-owned, post-secondary vocational school transportation facilities.

(9) Road sealing.

(10) The placement of a double bituminous surface and chip seals during the construction of an approved project (as the

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 § 170.117.)

(44) Tribal fees such as employment taxes (TERO), assessments, licensing fees, permits, and other regulatory fees.

(45) On the job education including classroom instruction and pre-apprentice training activities related to TTP construction projects such as equipment operations, surveying, construction monitoring, testing, inspection and project management.

(46) Installation of advance technological devices on TTP transportation facilities such as permanent weigh-in-motion systems, informational signs, intelligent transportation system hardware, etc.

(47) Tribal, cultural, historical, and natural resource monitoring, management and mitigation for transportation related activities.

(48) Mitigation activities required by tribal, state, or Federal regulatory agencies and 42 U.S.C. 4321,
et seq.,
the National Environmental Policy Act (NEPA).

(49) Purchasing, leasing or renting of construction equipment. All equipment purchase request submittals must be accompanied by written cost analysis and approved by FHWA.

(50) Coordination and construction materials for innovative readiness training projects such as the Department of Defense (DOD), the American Red Cross, the Federal Emergency Management Agency (FEMA), other cooperating Federal agencies, states and their political subdivisions, Tribal governments, or other appropriate non-governmental organizations.

(51) Emergency repairs on tribal transportation facilities.

(52) Public meetings and public involvement activities.

(53) Construction of roads on dams and levees.

(54) Transportation alternative activities as defined in 23 U.S.C. 101(a).

(55) Modification of public sidewalks adjacent to or within tribal transportation facilities.

(56) Highway and transit safety infrastructure improvements and hazard eliminations.

(57) Transportation control measures such as employer-based transportation management plans, including incentives, shared-ride services, employer sponsored programs to permit flexible work schedules and other activities, other than clause (xvi) listed in section 108(f)(1)(A) of the Clean Air Act, (42 U.S.C. 7408(f)(1)(A)).

(58) Necessary environmental restoration and pollution abatement.

(59) Trail development and related activities as identified in §§ 170.123 through 170.126.

(60) Development of scenic overlooks and information centers.

(61) Natural habitat and wetlands mitigation efforts related to TTP road and bridge projects, including:

(i) Participation in natural habitat and wetland mitigation banks, including banks authorized under the Water Resources Development Act, and

(ii) Contributions to tribal, statewide and regional efforts to conserve, restore, enhance, and create natural habitats and wetland, including efforts authorized under the Water Resources Development Act.

(62) Mitigation of damage to wildlife, habitat and ecosystems caused as a result of a transportation project.

(63) Construction of permanent fixed or moveable structures for snow or sand control.

(64) Cultural access roads (see § 170.115).

(65) Other eligible items as approved by the Federal Highway Administration (FHWA).

(66) Any additional activities proposed by a Tribe or the TTP Coordinating Committee and approved by the appropriate Secretary (see §§ 170.113 and 170.136).

(67) Other eligible activities identified in this part.

(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

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

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

(a) The following set-asides are applied to the tribal transportation program before the determination of final tribal shares:

(1) Tribal transportation planning (23 U.S.C. 202(c));

(2) Tribal transportation facility bridges (23 U.S.C. 202(d));

(3) Tribal safety (23 U.S.C. 202(e));

(4) Administrative expenses (23 U.S.C. 202(a)(6)); and

(5) Tribal supplemental program (23 U.S.C. 202(b)(3)(C)).

(b) After deducting the set asides identified in paragraph (a) of this section, on October 1 of each fiscal year, the Secretary will distribute the remainder authorized to be appropriated for the tribal transportation program among Indian tribes as follows:

(1) For fiscal year 2014:

(i) For each Indian tribe, 60 percent of the total relative need distribution factor and population adjustment factor for the fiscal year 2011 funding amount made available to that Indian tribe; and

(ii) The remainder using tribal shares as described in § 170.201 and tribal supplemental funding as described in § 170.202.

(2) For fiscal year 2015:

(i) For each Indian tribe, 40 percent of the total relative need distribution factor and population adjustment factor for the fiscal year 2011 funding amount made available to that Indian tribe; and

(ii) The remainder using tribal shares as described in § 170.201 and tribal supplemental funding as described in § 170.202.

(3) For fiscal year 2016 and thereafter:

(i) For each Indian tribe, 20 percent of the total relative need distribution factor and population adjustment factor for the fiscal year 2011 funding amount made available to that Indian tribe; and

(ii) The remainder using tribal shares as described in § 170.201 and tribal supplemental funding as described in § 170.202.

§ 170.201
What is the statutory distribution formula for tribal shares?

(a) Tribal shares are determined by using the national tribal transportation inventory as calculated for fiscal year 2012, and the most recent data on American Indian and Alaska Native population within each Indian tribe's American Indian/Alaska Native Reservation or Statistical Area, as computed under the Native American Housing Assistance and Self-Determination Act of 1996 (
25
U.S.C.
4101 et seq.
), in the following manner:

(1) 27 percent in the ratio that the total eligible road mileage in each tribe bears to the total eligible road mileage of all American Indians and Alaskan Natives. For the purposes of this calculation, eligible road mileage will be computed using only facilities included in the inventory described below:

(i) Were included in the Bureau of Indian Affairs system inventory prior to October 1, 2004;

(ii) Are owned by an Indian tribal government;

(iii) Are owned by the Bureau of Indian Affairs.

(2) 39 percent in the ratio that the total population in each tribe bears to the total population of all American Indians and Alaskan Natives; and

(3) 34 percent will be initially divided equally among each BIA Region.

(b) The share of funds will be distributed to each Indian tribe within the region in the ratio that the average total relative need distribution factors and population adjustment factors from fiscal years 2005 through 2011 for a tribe bears to the average total of relative need distribution factors and population adjustment factors for fiscal years 2005 through 2011 in that region.

§ 170.202
How do BIA and FHWA determine and distribute the tribal supplemental program funds?
(a) The total amount of funding made available for the tribal supplemental program is determined as follows:

(1) If the amount made available for the tribal transportation program is less than or equal to $275,000,000, the tribal supplemental funding amount will equal 30 percent of such amount.

(2) If the amount made available for the tribal transportation program exceeds $275,000,000, the tribal supplemental funding will equal:

(i) $82,500,000; plus

(ii) 12.5 percent of the amount made available for the tribal transportation program in excess of $275,000,000.

(b) The tribal supplemental program funds will be distributed as follows:

(1) Initially, the tribal supplemental program funding determined in paragraph (a) of this section will be designated among the BIA Regions in proportion to the regional total of tribal shares based on the cumulative tribal shares of all Indian tribes within the region under § 170.201.

(2) After paragraph (b)(1) of this section is completed, the tribal supplemental program funding designated for each region will be distributed among the tribes within the region as follows:

(i) The Secretary will determine which tribes would be entitled under § 170.200 to receive in a fiscal year less funding than they would receive in fiscal year 2011 pursuant to the relative need distribution factor and population adjustment factor, as described in 25 CFR part 170, subpart C (in effect as of July 5, 2012); and

(ii) The combined amount that such Indian tribes would be entitled to receive in fiscal year 2011 pursuant to such relative need distribution factor and population adjustment factor in excess of the amount that they would be entitled to receive in the fiscal year under § 170.200.

(c) Subject to paragraph (d) of this section, the Secretary will distribute a combined amount to each tribe that meets the criteria described in paragraph (b)(2)(i) of this section a share of funding in proportion to the share of the combined amount determined under paragraph (b)(2)(ii) of this section attributable to such Indian tribe.

(d) A tribe may not receive under paragraph (b)(2) of this section and based on its tribal share under § 170.200 a combined amount that exceeds the amount that such Indian tribe would be entitled to receive in fiscal year 2011 pursuant to the relative need distribution factor and population adjustment factor, as described in 25 CFR part 170, subpart C.

(e) If the amount made available for a region under paragraph (b)(1) of this section exceeds the amount distributed among Indian tribes within that region under paragraph (b)(2) of this section, The Secretary will distribute the remainder of such region's funding under paragraph (b)(1) of this section among all tribes in that region in proportion to the combined amount that each such tribe received under § 170.200 and paragraphs (b), (c), and (d) of this section.

§ 170.203
How do BIA and FHWA allocate tribal transportation planning funds?
Upon request of a tribal government and approval by the BIA Regional Office or FHWA, BIA or FHWA provides tribal transportation planning funds described in § 170.200(a)(1) pro rata to the tribe's final percentage as determined under §§ 170.200 through 170.202. The tribal transportation planning funds will be distributed to the tribes under applicable BIA and FHWA contracting procedures.

§ 170.204
What restrictions apply to TTP funds provided to tribes?
All TTP funds provided to tribes can be expended only on eligible activities identified in Appendix A to Subpart B, and included in an FHWA approved TIP per 23 U.S.C. 202(b)(4)(B).

§ 170.205
What is the timeframe for distributing TTP funds?

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

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

§ 170.225
How does a long-range transportation plan relate to the National Tribal Transportation Inventory?
A long-range transportation plan (LRTP) is developed using a uniform process that identifies the transportation needs and priorities of a tribe. The National Tribal Transportation Inventory NTTFI (see § 170.442) is derived from transportation facilities identified through an LRTP. It is also a means for identifying projects and activities for the TTP and the Tribal High Priority Projects Program (THPPP) described in Subpart I.

Formula Data Appeals

§ 170.226
How can a tribe appeal its share calculation?
(a) In calculating tribal shares, BIA and FHWA use population data (which may be appealed) and specific prior-year data (which may not be appealed). Share calculations are based upon the requirements of 23 U.S.C. 202(b)(3)(B).

(b) Any appeal of a tribe's population figure must be directed to Department of Housing and Urban Development. The population data used is the most recent data on American Indian and Alaska Native population within each Indian Tribe's American Indian/Alaska Native Reservation or Statistical Area. This data is computed under the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101
et seq.
).

(b) Appeal processes regarding inventory submissions are found at § 170.444(c), design standards at § 170.457, and new uses of funds at § 170.113.

Flexible Financing

§ 170.227
Can tribes use flexible financing for TTP projects?
Yes. Tribes may use flexible financing in the same manner as States to finance TTP transportation projects, unless otherwise prohibited by law.

(a) Tribes may issue bonds or enter into other debt-financing instruments under 23 U.S.C. 122 with the expectation of payment of TTP funds to satisfy the instruments.

(b) Under 23 U.S.C. 603, the Secretary of Transportation may enter into an agreement for secured loans or lines of credit for TTP projects meeting the requirements contained in 23 U.S.C. 602. Tribes or BIA may service Federal credit instruments. The secured loans or lines of credit must be paid from tolls, user fees, payments owing to the obligor under a public-private partnership or other dedicated revenue sources.

(c) Tribes may use TTP funds as collateral for loans or bonds to finance TTP projects. Upon the request of a tribe, a BIA region or FHWA will provide necessary documentation to banks and other financial institutions.

§ 170.228
Can a tribe use TTP funds to leverage other funds or to pay back loans?
(a) A tribe can use TTP funds to leverage other funds.

(b) A tribe can use TTP funds to pay back loans or other finance instruments that were used for a project that:

(1) The tribe paid for in advance of the current year using non-TTP funds;

(2) Was included in FHWA-approved TTPTIP; and

(3) Was included in the NTTFI at the time of construction.

§ 170.229
Can a tribe apply for loans or credit from a State infrastructure bank?
Yes. A tribe can apply for loans or credit from a State infrastructure bank. Upon the request of a tribe, BIA region or FHWA will provide necessary documentation to a State infrastructure bank to facilitate obtaining loans and other forms of credit for a TTP project.

§ 170.230
How long must a project financed through flexible financing remain on a TTPTIP?
Tribes must identify each TTP project financed through flexible financing along with the repayment amount on their annual TTPTIP until the flexible financing instrument has been satisfied.

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

Transportation Planning

§ 170.400
What is the purpose of transportation planning?
The purpose of transportation planning is to address current and future transportation, land use, economic development, traffic demand, public safety, health, and social needs.

§ 170.401
What are BIA's and FHWA's roles in transportation planning?
Except as provided in § 170.402, the functions and activities that BIA and/or FHWA must perform for the TTP are:

(a) Preparing, reviewing, and approving the TTPTIP;

(b) Oversight of the NTTFI;

(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.

§ 170.402
What is the tribal role in transportation planning?
(a) All tribes must prepare a tribal TIP (TTIP) or tribal priority list.

(b) Tribes operating with a Program Agreement or BIA self-determination contract, TTP Agreement, or Self-Governance agreement may assume any of the following planning functions:

(1) Coordinating with States and their political subdivisions, and appropriate planning authorities on regionally significant TTP projects;

(2) Preparing NTTFI data updates;

(3) Facilitating public involvement;

(4) Performing traffic studies;

(5) Developing short- and long-range transportation plans;

(6) Mapping;

(7) Developing and maintaining tribal management systems;

(8) Participating in transportation planning and other transportation related meetings;

(9) Performing transportation planning for operational and maintenance facilities;

(10) Developing TTP budgets including transportation planning cost estimates;

(11) Conducting special transportation studies, as appropriate;

(12) Researching rights-of-way documents for project planning; and

(13) Performing preliminary project planning or project identification studies.

§ 170.403
What TTP funds can be used for transportation planning?
Funds as defined in 23 U.S.C. 202(c) are allocated to an Indian tr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2014-29604. Public record. Not legal advice.