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e-CFR data is current as of October 22, 2020

Title 25Chapter ISubchapter HPart 170 → Subpart D


Title 25: Indians
PART 170—TRIBAL TRANSPORTATION PROGRAM


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


Contents

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?
§§170.406-170.408   [Reserved]
§170.409   What is the purpose of long-range transportation planning?
§170.410   How does a long-range transportation plan relate to the NTTFI?
§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's 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?

Tribal Transportation Improvement Programs

§170.421   What is the Tribal Transportation Improvement Program (TTIP)?
§170.422   How does the public participate in developing the TTIP?
§170.423   How are annual updates or amendments to the TTIP conducted?
§170.424   What is the TTP Transportation Improvement Program (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 of 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?

National Tribal Transportation 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   [Reserved]
§170.446   What minimum attachments are required for an NTTFI submission?
§170.447   How are the allowable lengths of access roads in the NTTFI determined?

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?
§170.453   Do the Categorical Exclusions under the National Environmental Policy Act (NEPA) and the regulations at 23 CFR 771 apply to TTP activities?

Design

§170.454   What design standards are used in the TTP?
§170.455   What other factors must influence project design?
§170.456   How 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?

Tribal Transportation Facility Bridges

§170.510   What funds are available for Tribal Transportation Facility 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?
Appendix A to Subpart D of Part 170—Cultural Resource and Environmental Requirements for the TTP
Appendix B to Subpart D of Part 170—Design Standards for the TTP

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Transportation Planning

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§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.

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§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 transportation planning are:

(a) Reviewing, and approving the TTPTIP as well as providing technical assistance to the Tribes during the development of their TTIP or Priority List:

(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.

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§170.402   What is the Tribal role in transportation planning?

(a) All Tribes must prepare a 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 and ensuring that the data is entered into the NTTFI;

(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.

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§170.403   What TTP funds can be used for transportation planning?

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

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§170.404   Can Tribes use transportation planning funds for other activities?

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

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§170.405   How must Tribes use planning funds?

TTP funds as defined in 23 U.S.C. 202(c) are available to a Tribal government to support Tribal transportation planning and associated activities, including:

(a) Attending transportation planning meetings;

(b) Pursuing other sources of funds; and

(c) Developing the Tribal priority list, TTIP, LRTP, or any of the transportation planning functions and activities listed in §170.402.

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§§170.406-170.408   [Reserved]

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§170.409   What is the purpose of long-range transportation planning?

(a) The purpose of long-range transportation planning is to clearly demonstrate a Tribe's transportation needs and to develop strategies to meet these needs. These strategies should address future land use, economic development, traffic demand, public safety, and health and social needs. The planning process should result in a LRTP.

(b) The time horizon for a LRTP should be 20 years to match State transportation planning horizons.

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§170.410   How does a long-range transportation plan relate to the NTTFI?

A LRTP is developed using a uniform process that identifies the transportation needs and priorities of a Tribe. The 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.

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§170.411   What should a long-range transportation plan include?

A LRTP should include:

(a) An evaluation of a full range of transportation modes and connections between modes such as highway, rail, air, and water, to meet transportation needs;

(b) Trip generation studies, including determination of traffic generators due to land use;

(c) Social and economic development planning to identify transportation improvements or needs to accommodate existing and proposed land use in a safe and economical fashion;

(d) Measures that address health and safety concerns relating to transportation improvements;

(e) A review of the existing and proposed transportation system to identify the relationships between transportation and the environment;

(f) Cultural preservation planning to identify important issues and develop a transportation plan that is sensitive to Tribal cultural preservation;

(g) Scenic byway and tourism plans;

(h) Measures that address energy conservation considerations;

(i) A prioritized list of short- and long-term transportation needs; and

(j) An analysis of funding alternatives to implement plan recommendations.

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§170.412   How is the Tribal TTP long-range transportation plan developed and approved?

(a) The Tribal TTP long-range transportation plan is developed by either:

(1) A Tribe working through a self-determination contract, self-governance agreement, Program Agreement; and other appropriate agreement; or

(2) BIA or FHWA upon request of, and in consultation with, a Tribe. The Tribe and BIA or FHWA need to agree on the methodology and elements included in development of the TTP long-range transportation plan along with time frames before work begins. The development of a long-range transportation plan on behalf of a Tribe will be funded from the Tribe's share of the TTP funds.

(b) During the development of the TTP long-range transportation plan, the Tribe and BIA or FHWA will jointly conduct a midpoint review.

(c) The public reviews a draft TTP long-range transportation plan as required by §170.413. The plan is further refined to address any issues identified during the public review process. The Tribe then approves the TTP long-range transportation plan.

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§170.413   What is the public's role in developing the long-range transportation plan?

BIA, FHWA, or the Tribe must solicit public involvement. If there are no Tribal policies regarding public involvement, a Tribe must use the procedures in this section. Public involvement begins at the same time long-range transportation planning begins and covers the range of users, from stakeholders and private citizens to major public and private entities. Public involvement must include either meetings or notices, or both.

(a) For public meetings, BIA, FHWA or the Tribe must:

(1) Advertise each public meeting in local and Tribal public newspapers at least 15 days before the meeting date. In the absence of local and Tribal public newspapers, BIA, FHWA, or the Tribe may post notices under locally acceptable practices;

(2) Provide at the meeting copies of the draft LRTP;

(3) Provide information on funding and the planning process; and

(4) Provide the public the opportunity to comment, either orally or in writing.

(b) For public notices, BIA, FHWA, or the Tribe must:

(1) Publish a notice in the local and Tribal public newspapers when the draft LRTP is complete. In the absence of local and Tribal public newspapers, BIA, FHWA, or the Tribe may post notices under locally acceptable practices; and

(2) State in the notice that the LRTP is available for review, where a copy can be obtained, whom to contact for questions, where comments may be submitted, and the deadline for submitting comments (normally 30 days).

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§170.414   How is the Tribal long-range transportation plan used and updated?

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

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§170.415   What are pre-project planning and project identification studies?

(a) Pre-project planning and project identification studies are part of overall transportation planning and include the activities conducted before final project approval on the TTPTIP. These processes provide the information necessary to financially constrain and program a project on the four-year TTPTIP but are not the final determination that projects will be designed and built. These activities include:

(1) Preliminary project cost estimates;

(2) Certification of public involvement;

(3) Consultation and coordination with States and/or MPO's for regionally significant projects;

(4) Preliminary needs assessments; and

(5) Preliminary environmental and archeological reviews.

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

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§170.420   What is the Tribal priority list?

The Tribal priority list is a list of all transportation projects that the Tribe wants funded. The list:

(a) Is not financially constrained; and

(b) Is provided to BIA or FHWA by official Tribal action, unless the Tribal government submits a TTIP.

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Tribal Transportation Improvement Programs

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

(a) The TTIP:

(1) Is developed from and must be consistent with the Tribe's Tribal priority list or LRTP;

(2) Is financially constrained for all identified funding sources;

(3) Must identify (year by year) all TTP funded projects and activities that are expected to be carried out over the next four years as well as the projected costs and all other funding sources that are expected to be used on those projects. Although 23 U.S.C. 134(j)(1)(D) indicates a TIP must be updated once every four years, Tribes are encouraged to update the TTIP annually to best represent the plans of the Tribe;

(4) Must identify all projects and activities that are funded through other Federal, State, county, and municipal transportation funds and are carried out by the Tribe in accordance with 23 U.S.C. 202(a)(9);

(5) Must include public involvement;

(6) Is reviewed and updated as necessary by the Tribal government;

(7) Can be changed only by the Tribal government; and

(8) After approval by the Tribal government, must be forwarded to BIA or FHWA by Tribal resolution or authorized governmental action certifying public involvement has occurred and requesting approval.

(b) A copy of the FHWA-approved TTIP is returned to the Tribe and BIA. Although the FHWA-approved TTIP authorizes the Tribe to expend TTP funds for the projects and/or activities shown, it does not waive or modify other Federal, local, or financial statutory or regulatory requirements associated with the projects or activities.

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§170.422   How does the public participate in developing the TTIP?

Public involvement is required in the development of the TTIP.

(a) The Tribe must publish a notice in local and/or Tribal newspapers when the draft TTIP is complete. In the absence of local public newspapers, the Tribe or BIA may post notices under locally acceptable practices. The notice must indicate where a copy can be obtained, a contact person for questions, where comments may be submitted, and the deadline for submitting comments. A copy of the notice will be made available to BIA or FHWA upon request.

(b) The Tribe may hold public meetings at which the public may comment orally or in writing.

(c) The Tribe, the State transportation department, or MPO may conduct public involvement activities.

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§170.423   How are annual updates or amendments to the TTIP conducted?

(a) The TTIP annual update allows:

(1) Changes to schedules and funding amounts for identified projects and activities; and

(2) The addition of transportation projects and activities planned for the next four years.

(b) During the first quarter of a fiscal year, Tribes will be notified of the opportunity to update their TTIP. This notification will contain information on where the Tribes can access their estimated TTP funding amounts for that fiscal year, and will include a copy of their previously approved TTIP, as well as instructions for submitting the annual update.

(c) The Tribe must then review any new transportation planning information and priority lists, update their TTIP using the procedures in §170.421, and forward the documentation to their respective BIA Regional Office or to FHWA.

(d) If forwarded to:

(1) A BIA Regional Office—The Office will review all submitted information with the Tribe and provide a written response (concurring, denying, or requesting additional information) within 45 days. If the BIA regional office concurs in the TTIP, it is then forwarded to FHWA for final approval.

(2) FHWA-FHWA will review all submitted information with the Tribe and provide a written response (approving, denying, or requesting additional information) within 45 days. Once a proposed TTIP update is approved by FHWA, it will be included in that year's overall TTPTIP.

(e) The Tribe may amend their approved TTIP at any time using the procedures in §170.421 and paragraph (d) of this section in order to add a new project or activity within the current fiscal year that they intend to expend TTP funds on.

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§170.424   What is the TTP Transportation Improvement Program (TTPTIP)?

(a) Each year, FHWA will compile the approved TTIPs for all of the Tribes into one document called the TTPTIP. This document will identify all expected projects and activities over a four-year period and will be organized by fiscal year, State, and Tribe.

(b) FHWA and BIA will post the approved TTPTIP on their respective Web sites. A subset of the TTPTIP that identifies only design and construction activities will annually be provided to the pertinent FHWA Division office for further transmittal to each State Transportation Office/Department for inclusion in the STIP without further action per 23 U.S.C. 201(c)(4).

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Public Hearings

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§170.435   When is a public hearing required?

The Tribe, or BIA or FHWA after consultation with the appropriate Tribe and other involved agencies, determines whether or not a public hearing is needed for a TTPTIP, a LRTP, or a project. A public hearing must be held if a project:

(a) Is for the construction of a new route or facility;

(b) Would significantly change the layout or function of connecting or related roads or streets;

(c) Would cause a substantial adverse effect on adjacent property; or

(d) Is controversial or expected to be controversial in nature.

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

Public hearings for a TTIP or a Tribe's LRTP are funded using the Tribe's funds as described in §170.403.

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§170.437   If there is no hearing, how must BIA, FHWA, or a Tribe inform the public?

(a) When no public hearing for a TTP project is scheduled, the BIA, FHWA, or a Tribe must give adequate notice to the public before project activities are scheduled to begin. The notice should include:

(1) Project location;

(2) Type of improvement planned;

(3) Dates and schedule for work;

(4) Name and address where more information is available; and

(5) Provisions for requesting a hearing.

(b) If the work is not to be performed by the Tribe, BIA will send a copy of the notice to the affected Tribe.

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§170.438   How must BIA, FHWA, or a Tribe inform the public of when a hearing is held?

(a) When BIA, FHWA, or a Tribe holds a hearing under this part, it must notify the public of the hearing by publishing a notice with information about the project, how to attend the hearing, and where copies of documents can be obtained or viewed.

(b) BIA or the Tribe must publish the notice by:

(1) Posting the notice and publishing it in a newspaper of general circulation at least 30 days before the public hearing; and,

(2) Sending a courtesy copy of the notice to each affected Tribe and BIA Regional Office.

(c) A second notice for a hearing is optional.

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§170.439   How is a public hearing conducted?

(a) Presiding official. A Tribal (tribal council) or Federal (FHWA or BIA) official will be appointed to preside over the public hearing. The presiding official must encourage a free and open discussion of the issues.

(b) Record of hearing. The presiding official is responsible for compiling the official record of the hearing. A record of a hearing is a summary of oral testimony and all written statements submitted at the hearing. Additional written comments made or provided at the hearing, or within five working days of the hearing, will be made a part of the record.

(c) Hearing process. (1) The presiding official explains the purpose of the hearing and provides an agenda;

(2) The presiding official solicits public comments from the audience on the merits of TTP projects and activities; and

(3) The presiding official informs the hearing audience of the appropriate procedures for a proposed TTP project or activity that may include, but are not limited to:

(i) Project development activities;

(ii) Rights-of-way acquisition;

(iii) Environmental and archeological clearance;

(iv) Relocation of utilities and relocation services;

(v) Authorized payments under the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. 4601 et seq., as amended;

(vi) Draft transportation plan; and

(vii) The scope of the project and its effect on traffic during and after construction.

(d) Availability of information. Appropriate maps, plats, project plans, and specifications will be available at the hearing for public review. Appropriate officials must be present to answer questions.

(e) Opportunity for comment. Comments are received as follows:

(1) Oral statements at the hearing;

(2) Written statements submitted at the hearing; and

(3) Written statements sent to the address noted in the hearing notice within five working days following the public hearing.

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§170.440   How can the public learn the results of a public hearing?

Within 20 working days after the public hearing, the presiding official will issue and post at the hearing site a statement that:

(a) Summarizes the results of the hearing;

(b) Explains any needed further action;

(c) Explains how the public may request a copy; and

(d) Outlines appeal procedures.

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§170.441   Can a decision resulting from a hearing be appealed?

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

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National Tribal Transportation Facility Inventory

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§170.442   What is the National Tribal Transportation Facility Inventory?

(a) The National Tribal Transportation Facility Inventory (NTTFI), is defined under §170.5 of this part.

(b) BIA, FHWA, or Tribes can also use the NTTFI to assist in transportation and project planning, justify expenditures, identify transportation needs, maintain existing TTP facilities, and develop management systems.

(c) The Secretaries may include additional transportation facilities in the NTTFI if the additional facilities are included in a uniform and consistent manner nationally.

(d) As required by 23 U.S.C. 144, all bridges in the NTTFI will be inspected and recorded in the national bridge inventory administered by the Secretary of Transportation.

(e) In accordance with 23 U.S.C. 202(b)(1)(A-B) and the principles of program stewardship and oversight, the Secretaries have the authority to maintain the NTTFI and shall ensure the eligibility of the facilities and the accuracy of the data included in the NTTFI.

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

(a) A proposed transportation facility is any transportation facility, including a highway bridge, that will serve public transportation needs, meets the eligibility requirements of the TTP, and does not currently exist. It must meet the eligibility requirements of the TTP and be open to the public when constructed. In order to have a proposed facility placed on the NTTFI, a Tribe must submit all of the following to the BIADOT/FHWA Quality Assurance Team for consideration:

(1) A Tribal resolution or other official action identifying support for the facility and its placement on the NTTFI.

(2) A copy of the Tribe's LRTP containing:

(i) A description of the current land use and identification of land ownership within the proposed road's corridor (including what public easements may be required);

(ii) A description of need and outcomes for the facility including a description of the project's termini; and

(iii) The sources of funding to be used for construction.

(3) If the landowner is a public authority other than the Tribe or BIA, documentation from the public authority that the proposed road has been identified in their LRTP, STIP approved by FHWA, or other published transportation planning documents.

(4) Documentation clearly identifying that easements or rights-of-way have been acquired or a clear written statement of willingness to provide a right-of-way from each landowner along the route.

(5) Certification that a public involvement process has been carried out for the proposed road.

(6) A synopsis discussing the project's anticipated environmental impacts as well as the engineering and construction challenges.

(7) Documentation that the project can meet financial or fiscal constraint requirements including financial information demonstrating that the project can be implemented using existing or reasonably available funding sources, and that the project route can be adequately maintained after construction. (See 23 U.S.C. 134 and 135.)

(8) Documentation identifying the entity responsible for maintenance of the facility after construction is completed.

(b) For those proposed roads that were included in the NTTFI as of November 7, 2016, the information in paragraphs (a)(1) through (8) of this section may be submitted for approval to BIA and FHWA at any time, but is not required in order for those proposed roads to remain in the NTTFI, unless any changes or updates to the proposed road were (or are) made after that date.

[81 FR 78463, Nov. 7, 2016, as amended at 82 FR 50313, Oct. 31, 2017; 84 FR 55500, Oct. 17, 2019; 85 FR 17499, Mar. 30, 2020 ]

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§170.444   How is the NTTFI updated?

(a) Submitting data into the NTTFI for a new facility is carried out on an annual basis as follows:

(1) BIA Regional Offices provide each Tribe within its region with a copy of the Tribe's own NTTFI data during the first quarter of each fiscal year.

(2) Tribes review the provided data and are responsible for entering all changes/updates into the database. This work must be completed by March 15. The submissions must include, at a minimum, all required minimum attachments (see §170.446) and authorizing resolutions or similar official authorizations.

(3) The BIA Regional Office reviews each Tribe's submission. If any errors or omissions are identified, the BIA Regional Office will return the submittals along with a request for corrections to the Tribe no later than May 15. If no errors or omissions are found, the BIA Regional Office validates the data and forwards it to BIADOT for review and approval.

(4) The Tribe must correct any errors or omissions in the data entries or return the corrected submittals back to the BIA Regional Office by June 15.

(5) Each BIA Regional Office must validate its regional data by July 15.

(6) BIADOT approves the current inventory year submissions from BIA Regional Offices by September 30 or returns the submissions to the BIA Regional Office if additional work is required.

(7) New facility data submitted outside of the above referenced dates are not guaranteed for inclusion in the official inventory identified in this subsection.

(b) Updating the data on a facility currently listed in the NTTFI is carried out as follows:

(1) At any time, a Tribe may submit a request to the BIA Region asking for the NTTFI data of an existing facility to be updated. The request must include the Tribe's updated data and background information on how and why the data was obtained. At the request of a Tribe, FHWA may assist BIA and the Tribe in updating the NTTFI data as required under this part.

(2) The BIA Region must review the submitted data and respond to the Tribe within 30 days of its receipt.

(i) If approved, the BIA Region validates the data and forwards it to BIADOT for review and approval.

(ii) If not approved, the BIA Region returns the submittals to the Tribe along with a detailed written explanation and supporting documentation of the reasons for the disapproval. The Tribe must correct the data entries and return the corrected submittals back to the BIA Region.

(3) BIADOT approves the current inventory year submittals from BIA Regional Offices or returns the submittals to the BIA Regional Office if additional work is required.

(c) A Tribe may appeal the rejection of submitted data on a new or existing facility included in the NTTFI by filing a written notice of appeal to the Director, Bureau of Indian Affairs, with a copy to the BIA Regional Director.

(d) To be included in the annual NTTFI update used for administrative and reporting purposes for any given fiscal year, submittals for new facilities and updates for existing facilities must be officially accepted by BIA and FHWA by September 30th of that year.

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§170.445   [Reserved]

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§170.446   What minimum attachments are required for an NTTFI submission?

The minimum attachments required for a facility to be added into the NTTFI include the following.

(a) A long-range transportation plan.

(b) A Tribal resolution or official authorization that refers to all route numbers, names, locations, lengths, construction needs, and ownerships.

(c) A Strip map. See §170.5.

(d) Average Daily Traffic (ADT) documentation.

(e) A typical or representative section photo or bridge profile photo.

(f) Incidental cost verification.

(g) Acknowledgement of Public Authority responsibility.

(h) For proposed roads, see §170.443 for additional required attachments. Please see the TTP Coding Guide for additional information on the NTTFI minimum attachments.

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§170.447   How are the allowable lengths of access roads in the NTTFI determined?

The allowable length of an access road in the NTTFI is determined as follows:

(a) If the road section intersects or abuts a federally recognized Tribal boundary, then the length of the access road is the distance from the boundary extending to the intersection of an equal or greater functional classification but no more than 15 miles.

(b) If the road section does not intersect or abut a federally recognized Tribal boundary, the following applies:

(1) If the road section intersects or abuts an Alaska Native Claims Settlement Act (ANCSA) (43 U.S.C. 1601 et seq.) village corporation transportation service area, then the length of the access road is the distance from the ANCSA village corporation transportation service area extending to the intersection of an equal or greater functional classification but no more than 15 miles.

(2) If the road section is located outside of an ANCSA village corporation and located within a developed Alaska Native Village with a population more than 50% Alaska Native/American Indian, then the length of the access road is defined as the distance beginning five miles outside of the developed area of the Alaska Native Village extending to the intersection of an equal or greater functional classification but no more than 15 miles.

(3) If the road section intersects or abuts a Tribally owned trust or fee parcel located outside of an incorporated municipal boundary, then the length of the access road is defined as the distance beginning five miles outside of the Tribally owned trust or fee parcel boundary extending to the intersection of an equal or greater functional classification but no more than 15 miles.

(4) If the road section intersects or abuts a Tribally owned trust or fee parcel located inside of an incorporated municipal boundary, then the length of the access road is defined as the distance from the Tribally owned trust or fee parcel boundary extending to the intersection of an equal or greater functional classification but no more than 15 miles.

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Environmental and Archeological Requirements

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§170.450   What archeological and environmental requirements must the TTP meet?

All BIA, FHWA, and Tribal work for the TTP must comply with cultural resource and environmental requirements under applicable Federal laws and regulations. A list of applicable laws and regulations is shown in appendix A to this subpart and is also available in the official Tribal Transportation Program Guide.

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

Yes. For approved TTP projects, TTP funds can be used for environmental and archeological work consistent with §170.450 and applicable Tribal laws for:

(a) Road and bridge rights-of-way;

(b) Borrow pits and aggregate pits and water sources associated with TTP activities staging areas;

(c) Limited mitigation outside of the construction limits as necessary to address the direct impacts of the construction activity as determined in the environmental analysis and after consultation with all affected Tribes and appropriate Secretaries; and

(d) Construction easements.

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

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

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§170.453   Do the Categorical Exclusions under the National Environmental Policy Act (NEPA) and the regulations at 23 CFR 771 apply to TTP activities?

Yes. Regardless of whether BIA or FHWA is responsible for the oversight of a Tribe's TTP activities, the Categorical Exclusions under NEPA at 23 CFR 771.117 governing the use of funds made available through title 23 shall apply to all qualifying TTP projects involving the construction or maintenance of roads.

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Design

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§170.454   What design standards are used in the TTP?

(a) Depending on the nature of the project, Tribes must use appropriate design standards approved by FHWA. Appendix B to this subpart as well as the official Tribal Transportation Program Guide list the applicable design standards that can be used.

(b) All other design standards not listed in (a) must receive approval from FHWA.

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§170.455   What other factors must influence project design?

The appropriate design standards must be applied to each construction project consistent with a minimum 20-year design life for highway projects and 75-year design life for highway bridges. The design of TTP projects must take into consideration:

(a) The existing and planned future use of the facility in a manner that is conducive to safety, durability, and economy of maintenance;

(b) The particular needs of each locality, and the environmental, scenic, historic, aesthetic, community, and other cultural values and mobility needs in a cost effective manner; and

(c) Access and accommodation for other modes of transportation.

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§170.456   How can a Tribe request an exception from the design standards?

(a) A Tribe can request an exception from the required design standards from FHWA. The engineer of record (the State licensed civil engineer whose name and professional stamp appear on the PS&E or who is responsible for the overall project design) must submit written documentation with appropriate supporting data, sketches, details, and justification based on engineering analysis.

(b) FHWA can approve a project design that does not conform to the minimum criteria only after giving due consideration to all project conditions, such as:

(1) Maximum service and safety benefits for the dollar invested;

(2) Compatibility with adjacent features; and

(3) Probable time before reconstruction of the project due to changed conditions or transportation demands.

(c) FHWA has 30 days from receiving the request to approve or decline the exception.

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§170.457   Can a Tribe appeal a denial?

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

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Review and Approval of Plans, Specifications and Estimates

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§170.460   What must a project package include?

The project package must include the following documentation, approved by the appropriate Public Authority, before the start of construction:

(a) Plans, specifications, and estimates;

(b) A Tribal resolution or other authorized document supporting the project;

(c) Certification of compliance with the requirements of 25 CFR part 169, as well as any additional public taking documentation clearances, if applicable.

(d) Required environmental, archeological, and cultural clearances; and

(e) Identification of design exceptions if used in the plans.

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§170.461   May a Tribe approve plans, specifications, and estimates?

An Indian Tribal government may approve plans, specifications and estimates and commence road and bridge construction with funds made available from the TTP through a self-determination contract, self-governance agreement, Program Agreement or other appropriate agreement, developed in accordance with 23 U.S.C. 202(b)(6) & (b)(7), if the Indian Tribal government:

(a) Provides assurances in the contract or agreement that the construction will meet or exceed applicable health and safety standards;

(b) Obtains advance review of the plans and specifications from a State-licensed civil engineer that has certified that the plans and specifications meet or exceed the applicable health and safety standards;

(c) Provides a copy of the certification under paragraph (a) of this section to the Deputy Assistant Secretary for Tribal Government Affairs, Department of Transportation, or the Assistant Secretary—Indian Affairs, DOI, as appropriate; and

(d) Provides a copy of all project documentation identified in §170.460 to BIA or FHWA before the start of construction.

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§170.463   What if a design deficiency is identified?

If the Secretaries identify a design deficiency that may jeopardize public health and safety if the facility is completed, they must:

(a) Immediately notify the Tribe of the design deficiency and request that the Tribe promptly resolve the deficiency under the standards in §170.454; and

(b) For a BIA-prepared PS&E package, promptly resolve the deficiency under the standards in §170.454 and notify the Tribe of the required design changes.

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Construction and Construction Monitoring

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§170.470   Which construction standards must Tribes use?

(a) Tribes must either:

(1) Use the approved standards referred to in §170.454; or

(2) Request approval for any other road and highway bridge construction standards that are consistent with or exceed the standards referred to in §170.454.

(b) For designing and building eligible intermodal projects funded by the TTP, Tribes must use either:

(1) Nationally recognized standards for comparable projects; or

(2) Tribally adopted standards that meet or exceed nationally recognized standards for comparable projects.

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§170.471   How are projects administered?

(a) When a Tribe carries out a TTP project, the project will be administered in accordance with a self-determination contract, self-governance agreement, Program Agreement or other appropriate agreement and this regulation.

(b) If BIA or FHWA discovers a problem during an on-site monitoring visit, BIA or FHWA must promptly notify the Tribe and, if asked, provide technical assistance.

(c) Only the State-licensed professional engineer of record whose name and professional stamp appear on the PS&E or who is responsible for the overall project design may change a TTP project's PS&E during construction.

(1) The original approving agency must review each substantial change. The approving agency is the Federal, Tribal, State, or local entity with PS&E approval authority over the project.

(2) The approving agency must consult with the affected Tribe and the entity having maintenance responsibility.

(3) A change that exceeds the limits of available funding may be made only with the approving agency's consent.

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§170.472   What construction records must Tribes and BIA keep?

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

Record keeperRecords that must be keptAccess requirements
(a) TribeAll records required by ISDEAA and 25 CFR 900.130-131 or 25 CFR 1000.243 and 1000.249, as appropriateBIA and FHWA are allowed access to Tribal TTP construction and approved project specifications as required under 25 CFR 900.130, 900.131, 25 CFR 1000.243 and 1000.249, or the Program Agreement as appropriate.
(b) BIACompleted daily reports of construction activities appropriate to the type of construction it is performingUpon reasonable advance request by a Tribe, BIA must provide reasonable access to records.

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§170.473   When is a project complete?

A project is considered substantially complete when all work is completed and accepted (except for minor tasks yet to be completed (punch list)) and the project is open to traffic. The project is completed only after all the requirements of this section are met.

(a) At the end of a construction project, the public authority, agency, or organization responsible for the project must make a final inspection. The inspection determines whether the project has been completed in reasonable conformity with the PS&E.

(1) Appropriate officials from the Tribe, BIA, responsible public authority, and FHWA should participate in the inspection, as well as contractors and maintenance personnel.

(2) All project information must be made available during final inspection and used to develop the TTP construction project closeout report. Some examples of project information are: Daily diaries, weekly progress reports, subcontracts, subcontract expenditures, salaries, equipment expenditures, as-built drawings, etc.

(b) After the final inspection, the facility owner makes final acceptance of the project. At this point, the Tribe or BIA must complete a project closeout and final accounting of all TTP construction project expenditures under §170.474.

(c) If applicable, all documents required by 25 CFR part 169 must be completed.

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§170.474   Who conducts the project closeout?

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

If the project was
completed by .  .  .
then .  .  .and the closeout report must .  .  .
(a) BIAThe region engineer or designee is responsible for closing out the project and preparing the report(1) Summarize the construction project records to ensure compliance requirements have been met;
(2) Review the bid item quantities and expenditures to ensure reasonable conformance with the PS&E and modifications;
(3) Be completed within 120 calendar days of the date of acceptance of the TTP construction project; and
(4) Be provided to the affected Tribes and the Secretaries.
(b) A TribeAgreements negotiated under ISDEAA, or other appropriate agreements specify who is responsible for closeout and preparing the report(1) Meet the requirements of ISDEAA;
(2) Comply with 25 CFR 900.130(d) and 131(b)(10) and 25 CFR 1000.249, or the Program Agreement, as applicable;
(3) Be completed within 120 calendar days of the date of acceptance of the project; and
(4) Be provided to all parties specified in the agreements.

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Management Systems

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§170.502   Are nationwide management systems required for the TTP?

(a) To the extent appropriate, the Secretaries, in consultation with Tribes, will implement safety, bridge, pavement, and congestion management systems for the Federal and Tribal facilities included in the NTTFI.

(b) A Tribe may develop its own Tribal management system based on the nationwide management system requirements in 23 CFR part 973. The Tribe may use either TTP formula funds or transportation planning funds defined in 23 U.S.C. 202(c) for this purpose. The Tribal system must be consistent with Federal management systems.

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Tribal Transportation Facility Bridges

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§170.510   What funds are available for Tribal Transportation Facility Bridge activities?

Funds are made available in 23 U.S.C. 202(d) for improving deficient bridges eligible for the TTP.

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

(a) The activities that are eligible for 23 U.S.C. 202(d) funding are:

(1) Carrying out any planning, design, engineering, preconstruction, construction, and inspection of a bridge project to replace, rehabilitate, seismically retrofit, paint, apply calcium magnesium acetate, sodium acetate/formate, or other environmentally acceptable, minimally corrosive anti-icing and deicing composition; or

(2) Implementing any countermeasure for deficient Tribal transportation facility bridges, including multiple-pipe culverts.

(b) Further information regarding the use and availability of these funds can be found at 23 CFR part 661.

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§170.512   How will Tribal Transportation Facility Bridge funds be made available to the Tribes?

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

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§170.513   When and how are bridge inspections performed?

(a) All bridges identified on the NTTFI must be inspected under 23 U.S.C. 144.

(b) Employees performing inspections as required by §170.513(a) must:

(1) Notify affected Tribes and State and local governments that an inspection will occur;

(2) Offer Tribal and State and local governments the opportunity to accompany the inspectors; and

(3) Otherwise coordinate with Tribal and State and local governments.

(c) The person responsible for the bridge inspection team must meet the qualifications for bridge inspectors as defined in 23 U.S.C. 144.

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§170.514   Who reviews bridge inspection reports?

The person responsible for the bridge inspection team must send a copy of the inspection report to BIADOT. BIADOT:

(a) Reviews the report for quality assurance and works with FHWA to ensure the requirements of 23 U.S.C. 144 are carried out; and

(b) Furnishes a copy of the report to the BIA Regional Office, which will forward the copy to the affected Tribe.

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Appendix A to Subpart D of Part 170—Cultural Resource and Environmental Requirements for the TTP

All BIA, FHWA, and Tribal work for the TTP must comply with cultural resource and environmental requirements under applicable Federal laws and regulations, including, but not limited to:

1. 16 U.S.C. 1531, Endangered Species Act.

2. 16 U.S.C. 4601, Land and Water Conservation Fund Act (Section 6(f)).

3. 16 U.S.C. 661-667d, Fish and Wildlife Coordination Act.

4. 23 U.S.C. 138, Preservation of Parklands, commonly referred to as 4(f).

5. 25 U.S.C. 3001-3013, Native American Graves Protection and Repatriation Act.

6. 33 U.S.C. 1251, Federal Water Pollution Control Act and Clean Water Act.

7. 42 U.S.C. 7401, Clean Air Act.

8. 42 U.S.C. 4321, National Environmental Policy Act.

9. 49 U.S.C. 303, Preservation of Parklands.

10. 7 U.S.C. 4201, Farmland Protection Policy Act.

11. 50 CFR part 402, Endangered Species Act regulations.

12. 7 CFR part 658, Farmland Protection Policy Act regulations.

13. 40 CFR part 93, Air Quality Conformity and Priority Procedures for use in Federal-aid Highway and Federally-Funded Transit Programs.

14. 23 CFR part 771, Environmental Impact and Related Procedures.

15. 23 CFR part 772, Procedures for Abatement of Highway Traffic Noises and Construction Noises.

16. 23 CFR part 777, Mitigation of Impacts To Wetlands and Natural Habitat.

17. 36 CFR part 800, Protection of Historic Properties.

18. 40 CFR parts 260-271, Resource Conservation and Recovery Act regulations.

19. Applicable Tribal/State laws.

20. Other applicable Federal laws and regulations.

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Appendix B to Subpart D of Part 170—Design Standards for the TTP

Depending on the nature of the project, Tribes must use the latest edition of the following design standards, as applicable. Additional standards may also apply. In addition, Tribes may develop design standards that meet or exceed the standards listed in this appendix. To the extent that any provisions of these standards are inconsistent with ISDEAA, these provisions do not apply.

1. AASHTO Policy on Geometric Design of Highways and Streets.

2. AASHTO A Guide for Transportation Landscape and Environmental Design.

3. AASHTO Roadside Design Guide.

4. AASHTO Guide for Selecting, Locating and Designing Traffic Barriers.

5. AASHTO Standard Specifications for Highway Bridges.

6. AASHTO Guidelines of Geometric Design of Very Low-Volume Local Roads (ADT less than or equal to 400).

7. FHWA Federal Lands Highway, Project Development and Design Manual.

8. FHWA Flexibility in Highway Design.

9. FHWA Roadside Improvements for Local Road and Streets.

10. FHWA Improving Guardrail Installations and Local Roads and Streets.

11. 23 CFR part 625, Design Standards for Highways.

12. 23 CFR part 630, Preconstruction Procedures.

13. 23 CFR part 633, Required Contract Provisions.

14. 23 CFR part 635, Construction and Maintenance.

15. 23 CFR part 645, Utilities.

16. 23 CFR part 646, Railroads.

17. 23 U.S.C. 106, PS&E.

18. 23 U.S.C. 109, Standards.

19. DOT Metric Conversion Plan, October 31, 1991.

20. MUTCD Manual of Uniform Traffic Safety Devices.

21. Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects.

22. FHWA-approved State standards.

23. FHWA-approved Tribal design standards.

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