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(continued) ne item for each project or activity;

(b) Sufficient detail to describe the work as included in the FHWA-approved IRRTIP and Control Schedule; and

(c) All other information required under 25 CFR 1000 subpart K.

§ 170.624 Is technical assistance available?
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Yes. Technical assistance is available from BIA for tribes with questions about contracting the IRR Program or IRR projects. For tribes with questions about self-governance agreements for the IRR Program or IRR project(s), technical assistance is available from the Office of Self-Governance and BIA. Technical assistance can include, but is not limited to, assistance in the preparation of self-determination contract proposal(s) and self-governance agreements.

§ 170.625 What regulations apply to waivers?
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The following regulations apply to waivers:

(a) For self-determination contracts, 25 CFR 900.140–148;

(b) For self-governance agreements, 25 CFR 1000.220–232; and

(c) For direct service, 25 CFR 1.2.

§ 170.626 How does a tribe request a waiver of a Department of Transportation regulation?
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A tribe must follow the procedures in ISDEAA, Title I, and 25 CFR 900.140–148 for self-determination contracts and Title IV, 25 CFR 1000.220–232 for tribal self-governance agreements. A courtesy copy of the request should be sent to the Secretary of Transportation at: 400 7th St., SW., HFL–1, Washington, DC 20590. When a waiver request is outside the Secretary's authority, the Secretary should forward the request to the Secretary of Transportation.

Appendix A to Subpart E—IRR Program Functions That Are Not Otherwise Contractible
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The program functions listed in this appendix cannot be included in a self-determination contract or self-governance agreement. (23 U.S.C. 202(d)(3)(B))

A. IRR project-related pre-contracting activities:

1. Notifying tribes of available funding including the right of first refusal; and

2. Providing technical assistance.

B. IRR project-related contracting activities:

1. Providing technical assistance;

2. Reviewing all scopes of work under 25 CFR 900.122;

3. Evaluating proposals and making declination decisions, if warranted;

4. Performing declination activities;

5. Negotiating and entering into contracts or agreements with State, tribal, and local governments and other Federal agencies;

6. Processing progress payments or contract payments;

7. Approving contract modifications;

8. Processing claims and disputes with tribal governments; and

9. Closing out contracts or agreements.

C. Planning activities:

1. Reviewing IRR transportation improvement programs developed by tribes or other contractors;

2. Reviewing IRR long-range transportation plans developed by tribes or other contractors; and

3. Performing other Federal responsibilities identified in the IRR Transportation Planning Procedures and Guidelines manual.

D. Environmental and historical preservation activities:

1. Reviewing and approving all items required for environmental compliance; and

2. Reviewing and approving all items required for archaeological compliance.

E. Processing rights-of-way:

1. Reviewing rights-of-way applications and certifications;

2. Approving rights-of-way documents;

3. Processing grants and acquisition of rights-of-way requests for tribal trust and allotted lands under 25 CFR part 169;

4. Responding to information requests;

5. Filing Affidavit of Completion Forms; and

6. Performing custodial functions related to storing rights-of-way documents.

F. Conducting project development and design under 25 CFR 900.131:

1. Participating in the plan-in-hand reviews on behalf of BIA as facility owner;

2. Reviewing and/or approving plans, specifications, and cost estimates (PS&E's) for health and safety assurance on behalf of BIA as facility owner;

3. Reviewing PS&E's to assure compliance with NEPA as well as all other applicable Federal laws; and

4. Reviewing PS&E's to assure compliance with or exceeding Federal standards for IRR design and construction.

G. Construction:

1. Making application for clean air/clean water permits as facility owner;

2. Ensuring that all required State/tribal/Federal permits are obtained;

3. Performing quality assurance activities;

4. Conducting value engineering activities as facility owner;

5. Negotiating with contractors on behalf of Federal Government;

6. Approving contract modifications/change orders;

7. Conducting periodic site visits;

8. Performing all Federal Government required project-related activities contained in the contract documents and required by 25 CFR parts 900 and 1000;

9. Conducting activities to assure compliance with safety plans as a jurisdictional responsibility hazardous materials, traffic control, OSHA, etc.;

10. Participating in final inspection and acceptance of project documents as-built drawings on behalf of BIA as facility owner; and

11. Reviewing project closeout activities and reports.

H. Other activities:

1. Performing other non-contractible required IRR project activities contained in this part, ISDEAA and part 1000; and

2. Other Title 23 non-project-related management activities.

I. BIADOT program management:

1. Developing budget on needs for the IRR Program;

2. Developing legislative proposals;

3. Coordinating legislative activities;

4. Developing and issuing regulations;

5. Developing and issuing IRR planning, design, and construction standards;

6. Developing/revising interagency agreements;

7. Developing and approving IRR Program stewardship agreements in conjunction with FHWA;

8. Developing annual IRR Program obligation and IRR Program accomplishments reports;

9. Developing reports on IRR Program project expenditures and performance measures for the Government Performance and Results Act (GPRA);

10. Responding to/maintaining data for congressional inquiries;

11. Developing and maintaining funding formula and its database;

12. Allocating IRR Program and other transportation funding;

13. Providing technical assistance to tribe/tribal organizations/agencies/regions;

14. Providing national program leadership for: National Scenic Byways Program, Public Lands Highways Discretionary Program, Transportation Enhancement Program, Indian Local Technical Assistance Program, Recreational Travel and Tourism, Transit Program, ERFO Program, Presidential initiatives (Millennium Trails, Lewis & Clark, Western Tourism Policy Group);

15. Participating in and supporting tribal transportation association meetings;

16. Coordinating with and monitoring Indian Local Technical Assistance Program centers;

17. Planning, coordinating, and conducting BIA/tribal training;

18. Developing information management systems to support consistency in data format, use, etc., with the Secretary of Transportation for the IRR Program;

19. Participating in special transportation related workgroups, special projects, task forces and meetings as requested by tribes;

20. Participating in national, regional, and local transportation organizations;

21. Participating in and supporting FHWA Coordinated Technology Implementation program;

22. Participating in national and regional IRR Program meetings;

23. Consulting with tribes on non-project related IRR Program issues;

24. Participating in IRR Program, process, and product reviews;

25. Developing and approving national indefinite quantity service contracts;

26. Assisting and supporting the IRR Coordinating Committee;

27. Processing IRR Bridge program projects and other discretionary funding applications or proposals from tribes;

28. Coordinating with FHWA;

29. Performing stewardship of the IRR Program;

30. Performing oversight of the IRR Program and its funded activities;

31. Performing any other non-contractible IRR Program activity included in this part; and

32. Determining eligibility of new uses of IRR Program funds.

J. BIADOT Planning:

1. Maintaining the official IRR inventory;

2. Reviewing long-range transportation plans;

3. Reviewing and approving IRR transportation improvement programs;

4. Maintaining nationwide inventory of IRR strip and atlas maps;

5. Coordinating with tribal/State/regional/local governments;

6. Developing and issuing procedures for management systems;

7. Distributing approved IRR transportation improvement programs to BIA regions;

8. Coordinating with other Federal agencies as applicable;

9. Coordinating and processing the funding and repair of damaged Indian Reservation Roads with FHWA;

10. Calculating and distributing IRR transportation planning funds to BIA regions;

11. Reprogramming unused IRR transportation planning funds at the end of the fiscal year;

12. Monitoring the nationwide obligation of IRR transportation planning funds;

13. Providing technical assistance and training to BIA regions and tribes;

14. Approving Atlas maps;

15. Reviewing IRR inventory information for quality assurance; and

16. Advising BIA regions and tribes of transportation funding opportunities.

K. BIADOT engineering:

1. Participating in the development of design/construction standards with FHWA;

2. Developing and approving design/construction/maintenance standards;

3. Conducting IRR Program/product reviews; and

4. Developing and issuing technical criteria for management systems.

L. BIADOT responsibilities for bridges:

1. Maintaining BIA National Bridge Inventory information/database;

2. Conducting quality assurance of the bridge inspection program;

3. Reviewing and processing IRR Bridge program applications;

4. Participating in second level review of IRR bridge PS-E's; and

5. Developing criteria for bridge management systems.

M. BIADOT responsibilities to perform other non-contractible required IRR Program activities contained in this part.

N. BIA regional offices program management:

1. Designating IRR System roads;

2. Notifying tribes of available funding;

3. Developing state IRR transportation improvement programs;

4. Providing FHWA-approved IRR transportation improvement programs to tribes;

5. Providing technical assistance to tribes/tribal organizations/agencies;

6. Funding common services as provided as part of the region/agency/BIA Division of Transportation IRR Program costs;

7. Processing and investigating non-project related tort claims;

8. Preparing budgets for BIA regional and agency IRR Program activities;

9. Developing/revising interagency agreements;

10. Developing control schedules/transportation improvement programs;

11. Developing regional IRR Program stewardship agreements;

12. Developing quarterly/annual IRR Program obligation and program accomplishments reports;

13. Developing reports on IRR project expenditures and performance measures for Government Performance and Results Act (GPRA);

14. Responding to/maintaining data for congressional inquiries;

15. Participating in Indian transportation association meetings;

16. Participating in Indian Local Technical Assistance Program (LTAP) meetings and workshops;

17. Participating in BIA/tribal training development highway safety, work zone safety, etc.;

18. Participating in special workgroups, task forces, and meetings as requested by tribes and BIA region/agency personnel;

19. Participating in national, regional, or local transportation organizations meetings and workshops;

20. Reviewing Coordinated Technology Implementation Program project proposals;

21. Consulting with tribal governments on non-project related program issues;

22. Funding costs for common services as provided as part of BIA IRR region/agency/contracting support costs;

23. Reviewing IRR Atlas maps;

24. Processing Freedom of Information Act (FOIA) requests;

25. Monitoring the obligation and expenditure of all IRR Program funds allocated to BIA region;

26. Performing activities related to the application for ERFO funds, administration, and oversight of such funds; and

27. Participating in IRR Program, process, and product reviews.

O. BIA regional offices' planning:

1. Coordinating with tribal/State/regional/local government;

2. Coordinating and processing the funding and repair of damaged Indian Reservation Roads with tribes;

3. Reviewing and approving IRR Inventory data;

4. Maintaining, reviewing, and approving the management systems databases;

5. Reviewing and approving IRR State transportation improvement programs; and

6. Performing Federal responsibilities identified in the IRR Transportation Planning Procedures and Guidelines manual.

P. BIA regional offices' engineering:

1. Approving tribal standards for the IRR Program use;

2. Developing and implementing new engineering techniques in the IRR Program; and

3. Providing technical assistance.

Q. BIA regional offices' responsibilities for bridges:

1. Reviewing and processing IRR bridge program applications;

2. Reviewing and processing IRR bridge inspection reports and information; and

3. Ensuring the safe use of roads and bridges.

R. BIA regional offices' other responsibilities for performing other non-contractible required IRR Program activities contained in this part.

Subpart F—Program Oversight and Accountability
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§ 170.700 What is the IRR Program stewardship plan?
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The IRR Program stewardship plan delineates the respective roles and responsibilities of BIA and FHWA in the administration of the IRR Program and the process used for fulfilling those roles and responsibilities.

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

§ 170.702 What activities may the Secretary review and monitor?
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The Secretary reviews and monitors the performance of construction activities under 25 CFR 900 subpart J and 25 CFR 1000 subpart K.

Subpart G—BIA Road Maintenance
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§ 170.800 Who owns IRR transportation facilities?
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Public authorities such as tribes, States, counties, local governments, and the Federal Government own IRR transportation facilities.

§ 170.801 What is the BIA Road Maintenance Program?
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The BIA Road Maintenance Program covers the distribution and use of the funds provided by Congress in the annual Department of the Interior appropriations acts for maintaining transportation facilities. Appendix A to this subpart contains a list of activities that are eligible for funding under the BIA road maintenance program.

§ 170.802 How is road maintenance funded?
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(a) The U.S. Congress funds a BIA program for the maintenance of IRR transportation facilities as defined in this part through annual appropriations for the Department of the Interior.

(b) The States, counties, and local governments fund the maintenance of IRR transportation facilities that they own or have agreed to maintain.

(c) Tribal governments, at their discretion, may also provide for the maintenance of IRR transportation facilities.

§ 170.803 What facilities are eligible under the BIA Road Maintenance Program?
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(a) The following public transportation facilities are eligible for maintenance under the BIA Road Maintenance Program:

(1) BIA transportation facilities listed in paragraph (b) of this section;

(2) Non-BIA transportation facilities, if the tribe served by the facility feels that maintenance is required to ensure public health, safety, and economy, and if the tribe executes an agreement with the owning public authority within available funding;

(3) Tribal transportation facilities such as public roads, highway bridges, trails, and bus stations; and

(4) Other transportation facilities as approved by the Secretary.

(b) The following BIA transportation facilities are eligible for maintenance under paragraph (a)(1) of this section:

(1) BIA 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 IRR Program funds; and

(12) Public ferry boats and boat ramps.

§ 170.804 How is BIA's Road Maintenance Program related to the IRR Program?
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The following chart illustrates how BIA's Road Maintenance Program is related to other Title 23 U.S.C. programs:



View or download PDF


§ 170.805 What are the local, tribal, and BIA roles in transportation facility maintenance?
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(a) State, county, and local governments normally perform the maintenance of their IRR transportation facilities.

(b) Tribes may perform or provide for their maintenance responsibilities by formal agreement or other contracts with any other, State, county, or local government.

(c) BIA's responsibility includes preparing annual budget requests under 23 U.S.C. 204(c) that include a report of the shortfalls in each BIA Region in appropriations of BIA Road Maintenance dollars.

§ 170.806 What is an IRR Transportation Facilities Maintenance Management System?
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An IRR Transportation Facilities Maintenance Management System (TFMMS) is a tool BIA and tribes will use to budget, prioritize, and schedule transportation facility maintenance activities. It will be used to extend the service life of an IRR transportation facility, ensure safety, and report future funding needs to the Secretary. BIA will develop the IRR TFMMS.

§ 170.807 What must BIA include when it develops an IRR Transportation Facilities Maintenance Management System?
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(a) At a minimum, an IRR TFMMS system must include components for:

(1) Uniformly collecting, processing, and updating data;

(2) Predicting facility deterioration;

(3) Identifying alternative actions;

(4) Projecting maintenance costs;

(5) Tracking and reporting of actual maintenance costs and activities accomplished;

(6) Forecasting short- and long-term budget needs;

(7) Recommended programs and schedules for implementation within policy and budget constraints;

(8) Tracking and reporting unmet needs; and

(9) Ability to produce various reports, including customized reports.

(b) The minimum data requirements include:

(1) Cost of maintenance activity per mile broken down by surface type and frequency of activity;

(2) Cost of bridge maintenance by surface area of deck and frequency of activity;

(3) Cost of maintenance of other inter-modal facilities;

(4) Information from other IRR Program management systems;

(5) Future needs; and

(6) Basic facility data including but not limited to route, bridge number, maintenance activity code, facility inspection dates.

§ 170.808 Can BIA Road Maintenance Program funds be used to improve IRR transportation facilities?
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No. BIA Road Maintenance Program funds cannot be used to improve roads or other IRR transportation facilities to a higher road classification, standard, or capacity.

§ 170.809 Can a tribe perform road maintenance under a self-determination contract or self-governance agreement?
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Yes. Any tribe may enter into a self-determination contract or self-governance agreement to conduct BIA or tribal transportation facility maintenance under ISDEAA and 25 CFR part 900 or 1000. The self-determination contract or self-governance agreement does not relieve BIA of its responsibility for maintenance.

§ 170.810 To what standards must an IRR transportation facility be maintained?
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IRR transportation facilities must be maintained, subject to availability of funding, in accordance with the IRR TFMMS. The Secretary will develop these standards with the input of the IRR Program Coordinating Committee. The Secretary must accept as interim standards any tribal maintenance standards that meet or exceed applicable Federal standards. Interim standards must include any of the following:

(a) Appropriate National Association of County Engineers maintenance standards;

(b) AASHTO road and bridge maintenance manuals, latest edition; or

(c) Other applicable Federal, State, tribal, or local government maintenance standards as may be negotiated in an ISDEAA road maintenance self-determination contract or self-governance agreement.

§ 170.811 What happens if lack of funds results in inadequate maintenance?
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If BIA determines that an IRR transportation facility is not being maintained under IRR TFMMS standards due to insufficient funding, the Secretary will notify the facility owner, and if tribal or BIA owned, continue to request annual maintenance funding for that facility. In addition, the Secretary will report these findings to Secretary of Transportation under 23 U.S.C. 204. The Secretary will provide a draft copy of the report to the affected tribe for comment before forwarding it to Secretary of Transportation.

§ 170.812 What is emergency maintenance?
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Emergency maintenance is work that must be accomplished immediately because of life threatening circumstances due to a catastrophic failure or natural disaster. Examples of emergency maintenance include: ice and snow control, traffic control, work in slide areas, repairs to drainage washouts, retrieving hazardous materials, suppressing wild fires, and repairing the ravages of other disasters.

§ 170.813 When can access to IRR transportation facilities be restricted?
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IRR transportation facilities must be open and available for public use, as are IRRs (§170.120).

(a) The Secretary may, in consultation with a tribe and applicable private landowners, restrict or temporarily close an IRR transportation facility to public use for the following reasons:

(1) Because of unsafe conditions;

(2) Because of natural disasters;

(3) For fish or game protection;

(4) To prevent traffic from causing damage to the facility; and

(5) For reasons deemed to be in the public interest such as fire prevention or suppression as approved by the Secretary.

(b) Consultation is not required whenever the above conditions involve immediate safety or life-threatening situations.

(c) Certain IRR transportation facilities owned by the tribes or BIA may be permanently closed when the tribal government and the Secretary agree. Once this agreement is reached, BIA must remove the facility from the IRR System.

Appendix A to Subpart G—List of Activities Eligible for Funding Under BIA Transportation Facility Maintenance Program
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The following activities are eligible for BIA Transportation Facility Maintenance Program. The list is not all-inclusive.

1. Cleaning and repairing ditches and culverts.

2. Stabilizing, removing, and controlling slides, drift sand, mud, ice, snow, and other impediments.

3. Adding additional culverts to prevent roadway and adjoining property damage.

4. Repairing, replacing or installing traffic control devices, guardrails and other features necessary to control traffic and protect the road and the traveling public.

5. Removing roadway hazards.

6. Repairing or developing stable road embankments.

7. Repairing parking facilities and appurtenances such as striping, lights, curbs, etc.

8. Repairing transit facilities and appurtenances such as bus shelters, striping, sidewalks, etc.

9. Training maintenance personnel.

10. Administering the BIA Transportation Facility Maintenance Program.

11. Performing environmental/archeological mitigation associated with transportation facility maintenance.

12. Leasing, renting, or purchasing of maintenance equipment.

13. Paying utilities cost for roadway lighting and traffic signals.

14. Purchasing maintenance materials.

15. Developing, implementing, and maintaining an IRR Transportation Facility Maintenance Management System (TFMMS).

16. Performing pavement maintenance such as pot hole patching, crack sealing, chip sealing, surface rejuvenation, and thin overlays (less than 1 inch).

17. Performing erosion control.

18. Controlling roadway dust.

19. Re-graveling roads.

20. Controlling vegetation through mowing, noxious weed control, trimming, etc.

21. Making bridge repairs.

22. Paying the cost of closing of transportation facilities due to safety or other concerns.

23. Maintaining airport runways, heliport pads, and their public access roads.

24. Maintaining and operating BIA public ferry boats.

25. Making highway alignment changes for safety reasons. These changes require prior notice to the Secretary.

26. Making temporary highway alignment or relocation changes for emergency reasons.

27. Maintaining other IRR intermodal transportation facilities provided that there is a properly executed agreement with the owning public authority within available funding.

Subpart H—Miscellaneous Provisions
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Hazardous and Nuclear Waste Transportation
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§ 170.900 What is the purpose of the provisions relating to transportation of hazardous and nuclear waste?
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Sections 170.900 through 170.907 on transportation of nuclear and hazardous waste are provided for information only, they do not create any legal responsibilities or duties for any person or entity, and are not intended to create any basis for a cause of action under the Federal Tort Claims Act.

§ 170.901 What standards govern transportation of radioactive and hazardous materials?
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DOT, the International Atomic Energy Agency, the U.S. Nuclear Regulatory Commission (NRC) and the Environmental Protection Agency have established standards and regulations for the shipment of radioactive and hazardous materials. Legal authority includes, but is not limited to, 23 U.S.C. 141; 23 U.S.C. 127; 49 CFR parts 107, 171–180; 10 CFR part 71.

§ 170.902 What is the role of State, tribal, and local governments?
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State, tribal, and local governments typically provide for the safety of their residents and other persons and protection of resources within their jurisdictions. With respect to radioactive and hazardous materials, some State, tribal, and local governments enact legislation, execute cooperative agreements, designate alternate transportation routes, develop emergency response plans, perform emergency response, issue permits, conduct vehicle inspections, enforce traffic laws, and perform highway construction and maintenance. These activities must not conflict with Federal laws and regulations.

§ 170.903 Who notifies tribes of the transport of radioactive waste?
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The Department of Energy (DOE) has elected, by policy, to notify tribes of DOE shipments through their jurisdiction.

§ 170.904 Who responds to an accident involving a radioactive or hazardous materials shipment?
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Tribal, Federal, local, and State police, fire departments, and rescue squads are often the first to respond to transportation accidents involving radioactive or hazardous materials. If radioactive materials are involved, DOE typically:

(a) Ensures that appropriate State and tribal agencies are contacted and coordinate any necessary Radiological Assistance Program team activities; and

(b) Dispatches a Radiological Assistance Program team that may include nuclear engineers, health physicists, industrial hygienists, public affairs specialists, and other personnel who provide related services.

§ 170.905 How can tribes obtain training in handling hazardous material?
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(a) Tribes cannot use IRR Program funds to train personnel to handle radioactive and hazardous material.

(b) Tribes can seek training from DOE, EPA, NRC, OSHA, States, and other sources. Funding is available from DOT under the Hazardous Materials Uniform Safety Act, EPA for monitoring and FEMA for general preparedness.

§ 170.906 Who cleans up radioactive and hazardous material spills?
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The carrier is typically responsible for cleanup of a radioactive or hazardous material spill with assistance from the shipper using established standards and guidelines. The carrier should work with the appropriate tribal, local, State and Federal agencies to address all cleanup issues, such as arranging or repackaging of the cargo, if necessary, and disposing of contaminated materials.

Reporting Requirements and Indian Preference
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§ 170.910 What information on the IRR Program or projects must BIA provide to tribes?
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At the written request of a tribe, BIA must provide available information on the IRR Program or projects to a tribe within a reasonable time.

§ 170.911 Are Indians entitled to employment and training preferences?
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(a) Federal law gives hiring and training preferences, to the greatest extent feasible, to Indians for all work performed under the IRR Program.

(b) Under 25 U.S.C. 450e(b) and 23 U.S.C. 204(e), Indian organizations and Indian-owned economic enterprises are entitled to a preference, to the greatest extent feasible, in the award of contracts, subcontracts and sub-grants for all work performed under the IRR Program.

§ 170.912 Does Indian employment preference apply to Federal-aid Highway Projects?
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(a) Tribal, State, and local governments may provide an Indian employment preference for Indians living on or near a reservation on projects and contracts that meet the definition of an Indian Reservation Road. (See 23 U.S.C. 101(a)(12) and 140(d), and 23 CFR 635.117(d).)

(b) Tribes may target recruiting efforts toward Indians living on or near Indian reservations, Indian lands, Alaska Native villages, pueblos, and Indian communities.

(c) Tribes and tribal employment rights offices should work cooperatively with State and local governments to develop contract provisions promoting employment opportunities for Indians on eligible federally funded transportation projects. Tribal, State, and local representatives should confer to establish Indian employment goals for these projects.

§ 170.913 Do tribal-specific employment rights and contract preference laws apply?
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Yes. When a tribe or consortium administers an IRR Program or project intended to benefit that tribe or a tribe within the consortium, the benefitting tribe's employment rights and contracting preference laws apply. (See §170.619 and 25 U.S.C. 450e(c).)

§ 170.914 What is the difference between tribal preference and Indian preference?
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Indian preference is a hiring preference for Indians in general. Tribal preference is a preference adopted by a tribal government that may or may not include a preference for Indians in general, Indians of a particular tribe, Indians in a particular region, or any combination thereof.

§ 170.915 May tribal employment taxes or fees be included in an IRR project budget?
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Yes. The cost of tribal employment taxes or fees may be included in the budget for an IRR program or project, except for BIA force account.

§ 170.916 May tribes impose taxes or fees on those performing IRR Program services?
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Yes. Tribes, as sovereign nations, may impose taxes and fees for IRR Program activities. When a tribe administers IRR programs or projects under ISDEAA, its tribal employment and contracting preference laws, including taxes and fees, apply.

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

Emergency Relief
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§ 170.920 What is the purpose of the provisions relating to emergency relief?
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Sections 170.920 through 170.927 relating to emergency relief are provided for information only and do not change the provisions of 23 CFR part 668 or existing guidance on emergency relief.

§ 170.921 What emergency or disaster assistance programs are available?
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(a) FHWA operates two emergency relief programs:

(1) The Emergency Relief (ER) Program, which provides disaster assistance for Federal-aid highways owned by State, county and local governments; and

(2) The Emergency Relief for Federally Owned Roads (ERFO) Program, which provides disaster assistance for Federal roads, including Indian Reservation Roads, that have been damaged due to natural disasters (floods, hurricanes, tornadoes, etc.).

(b) The Federal Emergency Management Agency (FEMA) may be considered as an alternate funding source to repair damage that is ineligible under the ER or ERFO Programs.

§ 170.922 How can States get Emergency Relief Program funds to repair IRR System damage?
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States can request emergency relief program funds to repair damage to Federal-aid highways caused by natural disasters or catastrophic failures. It is the responsibility of individual States to request these funds.

§ 170.923 What qualifies for ERFO funding?
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(a) Tribes can use ERFO funding to repair damage to IRR transportation facilities (including roads, bridges, and related structures) caused by natural disaster over a widespread area or by a catastrophic failure from any external cause. The Secretary of Transportation determines eligible repairs under 23 CFR 668, subpart B.

(1) Examples of natural disasters include, but are not limited to, floods, earthquakes, tornadoes, landslides, avalanches or severe storms, such as saturated surface conditions and high-water table caused by precipitation over an extended period of time.

(2) An example of a catastrophic failure includes, but is not limited to, a bridge collapse after being struck by a barge, truck or a landslide.

(b) Structural deficiencies, normal physical deterioration, and routine heavy maintenance do not qualify for ERFO funding.

§ 170.924 What happens if DOT denies an ERFO claim?
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The appealing tribe or the facility owner (if the tribe is not the owner) may appeal the finding or determination to the Secretary of Transportation at: FHWA, 400 7th St., SW., HFL–1, Washington, DC 20590. If the tribe is appealing it must provide a courtesy copy of its appeal to BIA.

§ 170.925 Is ERFO funding supplemental to IRR Program funding?
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Yes. If ERFO funds are approved and available, they can be used to supplement IRR construction and maintenance funds for FHWA-approved repairs. If IRR construction or maintenance funds are used to address an approved claim when ERFO funds are unavailable, the next authorized ERFO funds may be used to reimburse the construction or maintenance funds expended.

§ 170.926 Can a tribe administer approved ERFO repairs under a self-determination contract or a self-governance agreement?
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Yes.

§ 170.927 How can FEMA Program funds be used to repair damage?
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(a) A tribe can request FEMA Program funds for emergency repairs to damaged roads not on the IRR System if the President has declared a major disaster or emergency. The tribe makes the request by submitting an SF 424, Application for Federal Assistance, directly to FEMA, as described in FEMA Response and Recovery Directorate 9512.4 (Dec. 28, 1999).

(b) Tribes can ask States to seek FEMA Program funds to repair damage to roads not on the IRR System.

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

§ 170.931 Can tribes use IRR Program funds to pay tribal transportation department operating costs?
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Yes. Tribes can use IRR Program funds to pay the cost of planning, administration, and performance of approved IRR Program activities (see appendix A, subpart B). Tribes can also use BIA road maintenance funds to pay the cost of planning, administration, and performance of maintenance activities under this part.

§ 170.932 Are there other funding sources for tribal transportation departments?
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There are many sources of funds that may help support a tribal transportation department. The following are some examples of additional funding sources:

(a) Tribal general funds;

(b) Tribal Priority Allocation;

(c) Tribal permits and license fees;

(d) Tribal fuel tax;

(e) Federal, State, private, and local transportation grants assistance;

(f) Tribal Employment Rights Ordinance fees (TERO); and

(g) Capacity building grants from Administration for Native Americans and other organizations.

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

Resolving Disputes
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§ 170.934 Are alternative dispute resolution procedures available?
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(a) Federal agencies should use mediation, conciliation, arbitration, and other techniques to resolve disputes brought by IRR Program beneficiaries. The goal of these alternative dispute resolution (ADR) procedures is to provide an inexpensive and expeditious forum to resolve disputes. Federal agencies should resolve disputes at the lowest possible staff level and in a consensual manner whenever possible.

(b) Except as required in 25 CFR part 900 and part 1000, tribes operating under a self-determination contract or self-governance agreement are entitled to use dispute resolution techniques prescribed in:

(1) The ADR Act, 5 U.S.C. 571–583;

(2) The Contract Disputes Act, 41 U.S.C. 601–613; and

(3) The Indian Self-Determination and Education Assistance Act and the implementing regulations (including for non-construction the mediation and alternative dispute resolution options listed in 25 U.S.C. 4501 (model contract section (b)(12)).

§ 170.935 How does a direct service tribe begin the alternative dispute resolution process?
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(a) To begin the ADR process, a direct service tribe must write to the BIA Regional Director or the Chief of BIA Division of Transportation. The letter must:

(1) Ask to begin one of the alternative dispute resolution (ADR) procedures in the Administrative Dispute Resolution Act of 1996, 5 U.S.C. 571–583 (ADR Act); and

(2) Explain the factual and legal basis for the dispute.

(b) ADR proceedings will be governed by procedures in the ADR Act and the implementing regulations.

Other Miscellaneous Provisions
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§ 170.941 May tribes become involved in transportation research?
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Yes. Tribes may:

(a) Participate in Transportation Research Board meetings, committees, and workshops sponsored by the National Science Foundation;

(b) Participate in and coordinate the development of tribal and IRR transportation research needs;

(c) Submit transportation research proposals to States, FHWA, AASHTO, and FTA;

(d) Prepare and include transportation research proposals in their IRRTIPS;

(e) Access Transportation Research Information System Network (TRISNET) database; and

(f) Participate in transportation research activities under Intergovernmental Personnel Act agreements.

§ 170.942 Can a tribe use Federal funds for transportation services for a tribe's Welfare-to-Work, Temporary Assistance to Needy Families, and other quality-of-life improvement programs?
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(a) A tribe can use IRR Program funds:

(1) To coordinate transportation-related activities to help provide access to jobs and make education, training, childcare, healthcare, and other services more accessible to tribal members; and

(2) As the matching share for other Federal, State, and local mobility programs

(b) To the extent authorized by law additional grants and program funds are available for the purposes in paragraph (a)(1) of this section from other programs administered by the Departments of Transportation, Health and Human Services, and Labor.

(c) Tribes should also apply for Federal and State public transportation and personal mobility program grants and funds.