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e-CFR data is current as of September 24, 2020

Title 25Chapter ISubchapter HPart 170 → Subpart E


Title 25: Indians
PART 170—TRIBAL TRANSPORTATION PROGRAM


Subpart E—Service Delivery for Tribal Transportation Program


Contents

Funding Process

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

Miscellaneous Provisions

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

Contracts and Agreements

§170.610   Which TTP functions may a Tribe assume?
§170.611   What special provisions apply to ISDEAA contracts and agreements?
§170.612   Can non-contractible functions and activities be included in contracts or agreements?
§170.613   What funds are used to pay for non-contractible functions and activities?
§170.614   Can a Tribe receive funds before BIA publishes the final notice of funding availability?
§170.615   Can a Tribe receive advance payments for non-construction activities under the TTP?
§170.616   How are payments made to Tribes if additional funds are available?
§170.617   May a Tribe include a contingency in its proposal budget?
§170.618   Can a Tribe keep savings resulting from project administration?
§170.619   Do Tribal preference and Indian preference apply to TTP funding?
§170.620   How do ISDEAA's Indian preference provisions apply?
§170.621   What if a Tribe doesn't perform work under a contract or agreement?
§170.622   What TTP functions, services, and activities are subject to the self-governance construction regulations?
§170.623   How are TTP projects and activities included in a self-governance agreement?
§170.624   Is technical assistance available?
§170.625   What regulations apply to waivers?
§170.626   How does a Tribe request a waiver of a Department of Transportation regulation?
§170.627   Can non-TTP funds be provided to a Tribe through an FHWA Program Agreement, BIA TTP Agreement or other appropriate agreement?
Appendix to Subpart E of Part 170—List of Program Functions That Cannot Be Subcontracted

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Funding Process

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

(a) Upon receiving the total or partial fiscal year of TTP funding from FHWA:

(1) BIA will send a notice of funds availability to each BIA Regional Office and FHWA that includes the TTP Tribal share funding available to each Tribe within each region; and

(2) BIA and FHWA will forward the information to the Tribes along with an offer of technical assistance.

(b) BIA and FHWA will distribute Tribal share funds to eligible Tribes upon execution of all required agreements or contracts between BIA/FHWA and the Tribe. This distribution must occur:

(1) Within 30 days after funds are made available to the Secretary under this paragraph; and

(2) Upon execution of all required agreements or contracts between BIA/FHWA and the Tribe.

(c) Funds made available under this section must only be expended on projects and activities identified in an FHWA-approved TTIP. The TTPTIP (see §170.424) is available on the BIA Transportation and FHWA Web sites.

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§170.602   If a Tribe incurs unforeseen construction costs, can it get additional funds?

The TTP is a Tribal shares program based upon a statutory funding formula. Therefore, no additional TTP funding beyond each Tribe's share is available for unforeseen construction costs. However, a Tribe may reprogram their TTP Tribal shares from other projects or activities identified on their FHWA-approved TTIP to cover unforeseen costs. In addition, if a Tribe is operating under a self-determination contract, it may request that additional dollars from its TTP Tribal share funds be made available for that project under 25 CFR 900.130(e).

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Miscellaneous Provisions

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

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

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§170.606   How do legislation and procurement requirements affect the TTP?

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

Legislation, regulation or other requirementApplies to Tribes under self-
determination
contracts
Applies to Tribes under self-
governance
agreements
Applies to Tribes under BIA or FHWA program agreementsApplies to
activities
performed by the Secretary
Buy Indian ActNoNoNoYes.
Buy American ActNoNoNoYes.
Federal Acquisition Regulation (FAR)No(a)NoNoYes.
Federal Tort Claims ActYesYesYesYes.
Davis-Bacon ActYes(b)Yes(b)Yes(b)Yes.

(a) Unless agreed to by the Tribe or Tribal organization under ISDEAA, 25 U.S.C. 450j(a), and 25 CFR 900.115.

(b) Does not apply when Tribe performs work with its own employees.

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§170.607   Can a Tribe use its allocation of TTP funds for contract support costs?

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

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§170.608   Can a Tribe pay contract support costs from DOI or BIA appropriations?

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

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§170.609   Can a Tribe receive additional TTP funds for start-up activities?

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

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Contracts and Agreements

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§170.610   Which TTP functions may a Tribe assume?

A Tribe may assume all TTP functions and activities that are otherwise contractible and non-inherently Federal under self-determination contracts, self-governance agreements, Program Agreements; and other appropriate agreements. The appendix to this subpart contains the list of program functions that cannot be subcontracted. Administrative support functions are an eligible use of TTP funding.

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§170.611   What special provisions apply to ISDEAA contracts and agreements?

(a) Multi-year contracts and agreements. The Secretary can enter into a multi-year TTP self-determination contract and self-governance agreement with a Tribe under sections 105(c)(1)(A) and (2) of ISDEAA. The amount of the contracts or agreements is subject to the availability of appropriations.

(b) Consortia. Under title I and title IV of ISDEAA, Tribes and multi-tribal organizations are eligible to assume TTPs under consortium contracts or agreements. For an explanation of self-determination contracts, refer to title I, 25 U.S.C. 450f. For an explanation of self-governance agreements, see title IV, 25 U.S.C. 450b(l) and 458b(b)(2).

(c) Advance payments. The Secretary and the Tribe must negotiate a schedule of advance payments as part of the terms of a self-determination contract under 25 CFR 900.132.

(d) Design and construction contracts. The Secretary can enter into a design/construct TTP self-determination contract that includes both the design and construction of one or more TTP projects. The Secretary may make advance payments to a Tribe:

(1) Under a self-determination design/construct contract for construction activities based on progress, need, and the payment schedule negotiated under 25 CFR 900.132; and

(2) Under a self-governance agreement in the form of annual or semiannual installments as indicated in the agreement.

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

Non-contractible TTP functions and activities cannot be included in self-determination contracts, self-governance agreements, Program Agreements, or other agreements. The appendix to this subpart contains a list of TTP functions and activities that cannot be contracted.

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§170.613   What funds are used to pay for non-contractible functions and activities?

(a) The administrative expenses funding identified in 23 U.S.C. 202(a)(6) are used by the BIA and FHWA transportation personnel when performing non-contractible functions and activities, including:

(1) Program management and oversight; and

(2) Project-related administration activities.

(b) If a Tribe enters into a Program Agreement with FHWA under 23 U.S.C. 202(b)(7), the program agreement may include such additional amounts as the Secretary of Transportation determines would equal the amount that would have been withheld for the costs of the Bureau of Indian Affairs for administration of the program or project.

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§170.614   Can a Tribe receive funds before BIA publishes the final notice of funding availability?

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

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§170.615   Can a Tribe receive advance payments for non-construction activities under the TTP?

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

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§170.616   How are payments made to Tribes if additional funds are available?

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

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§170.617   May a Tribe include a contingency in its proposal budget?

(a) A Tribe with a self-determination contract may include a contingency amount in its proposed budget under 25 CFR 900.127(e)(8).

(b) A Tribe with a self-governance agreement may include a project-specific line item for contingencies if the Tribe does not include its full TTP funding allocation in the agreement.

(c) The amounts in both paragraphs (a) and (b) of this section must be within the Tribal share made available or within the negotiated ISDEAA contract or agreement.

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§170.618   Can a Tribe keep savings resulting from project administration?

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

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§170.619   Do Tribal preference and Indian preference apply to TTP funding?

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

If .  .  .Then .  .  .
(a) A contract serves a single TribeSection 7(c) under Title 1 of ISDEAA allows Tribal employment or contract preference laws, including Tribe local preference laws, to govern.
(b) A contract serves more than one TribeSection 7(b) under Title 1 of ISDEAA applies.
(c) A self-governance agreement exists under Title IV of ISDEAA25 CFR 1000.406 applies.
(d) A Program AgreementThe language of the Program Agreement applies.

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§170.620   How do ISDEAA's Indian preference provisions apply?

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

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§170.621   What if a Tribe doesn't perform work under a contract or agreement?

If a Tribe fails to substantially perform work under a contract or agreement:

(a) For self-determination contracts, the Secretary must use the monitoring and enforcement procedures in 25 CFR 900.131(a) and (b) and ISDEAA, part 900 subpart L (appeals);

(b) For self-governance agreements, the Secretary must use the monitoring and enforcement procedures in 25 CFR part 1000, subpart K; or

(c) For FHWA or BIA TTP Agreements, the Secretaries will use the procedures identified in the Agreements.

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

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

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

To include a TTP project or activity in a self-governance agreement, the following information is required:

(a) All work must be included in the FHWA-approved TTPTIP; and

(b) All other information required under 25 CFR part 1000, subpart K.

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§170.624   Is technical assistance available?

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

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§170.625   What regulations apply to waivers?

The following regulations apply to waivers:

(a) For self-determination contracts, 25 CFR 900.140 through 900.148;

(b) For self-governance agreements, 25 CFR 1000.220 through 1000.232; and

(c) For direct service, 25 CFR 1.2.

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§170.626   How does a Tribe request a waiver of a Department of Transportation regulation?

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

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

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§170.627   Can non-TTP funds be provided to a Tribe through an FHWA Program Agreement, BIA TTP Agreement or other appropriate agreement?

In addition to all funds made available under chapter 2 of title 23, the cooperation of States, counties, and other local subdivisions may be accepted in construction and improvement of a Tribal transportation facility. In accordance with 23 U.S.C. 202(a)(9), any funds received from a State, county, or local subdivision may be credited by the Secretaries to appropriations available for the TTP. Subject to an agreement among the Tribe, BIA or FHWA, and the State, county, or local subdivision that addresses the purpose and intent of the funds such funds may be provided to the Tribe through an 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).

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Appendix to Subpart E of Part 170—List of Program Functions That Cannot Be Subcontracted

Per §170.612, program functions cannot be included in self-determination contracts, self-governance agreements, Program Agreements, or other agreements. Program functions include all of the following:

(a) TTP project-related pre-contracting activities:

(1) Notifying Tribes of available funding including the right of first refusal; and

(2) Providing technical assistance.

(b) TTP project-related contracting activities:

(1) Providing technical assistance;

(2) Reviewing all scopes of work under 25 CFR 900.122;

(3) Evaluating proposals and making declination decisions, if warranted;

(4) Performing declination activities;

(5) Negotiating and entering into contracts or agreements with State, Tribal, and local governments and other Federal agencies;

(6) Processing progress payments or contract payments;

(7) Approving contract modifications;

(8) Processing claims and disputes with Tribal governments; and

(9) Closing out contracts or agreements.

(c) Planning activities:

(1) Reviewing and approving TTPTIPs developed by Tribes or other contractors; and

(2) Reviewing and approving TTP LRTPs developed by Tribes or other contractors.

(d) Environmental and historical preservation activities:

(1) Reviewing and approving all items required for environmental compliance; and

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

(e) Processing rights-of-way:

(1) Reviewing rights-of-way applications and certifications;

(2) Approving rights-of-way documents;

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

(4) Responding to information requests;

(5) Reviewing and approving documents attesting that a project was constructed entirely within a right-of-way granted by BIA; and

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

(f) Conducting project development and design under 25 CFR 900.131:

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

(2) Reviewing and/or approving PS&E for health and safety assurance on behalf of BIA as facility owner;

(3) Reviewing PS&E to assure compliance with NEPA as well as all other applicable Federal laws; and

(4) Reviewing PS&E to assure compliance with or exceeding Federal standards for TTP 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 the 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 or as-built drawings on behalf of BIA as facility owner; and

(11) Reviewing project closeout activities and reports.

(h) Other activities:

(1) Performing other non-contractible required TTP project activities contained in this part, ISDEAA and part 1000; and

(2) Other title 23 non-project-related management activities.

(i) BIADOT program management:

(1) Developing budget on needs for the TTP;

(2) Developing legislative proposals;

(3) Coordinating legislative activities;

(4) Developing and issuing regulations;

(5) Developing and issuing TTP planning, design, and construction standards;

(6) Developing/revising interagency agreements;

(7) Developing and approving TTP stewardship agreements in conjunction with FHWA;

(8) Developing annual TTP obligation and TTP accomplishments reports;

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

(10) Responding to/maintaining data for congressional inquiries;

(11) Developing and maintaining the funding formula and its database;

(12) Allocating TTP and other transportation funding;

(13) Providing technical assistance to Tribes/Consortiums/tribal organizations/agencies/regions;

(14) Providing national program leadership for other Federal transportation related programs including: Transportation Alternatives Program, Tribal Transportation Assistance Program, Recreational Travel and Tourism, Transit Programs, ERFO Program, and Presidential initiatives;

(15) Participating in and supporting Tribal transportation association meetings;

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

(17) Planning, coordinating, and conducting BIA/tribal training;

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

(19) Participating in special transportation related workgroups, special projects, task forces and meetings as requested by Tribes;

(20) Participating in national, regional, and local transportation organizations;

(21) Participating in and supporting FHWA Coordinated Technology Implementation program;

(22) Participating in national and regional TTP meetings;

(23) Consulting with Tribes on non-project related TTP issues;

(24) Participating in TTP, process, and product reviews;

(25) Developing and approving national indefinite quantity service contracts;

(26) Assisting and supporting the TTP Coordinating Committee;

(27) Processing TTP bridge program projects and other discretionary funding applications or proposals from Tribes;

(28) Coordinating with FHWA;

(29) Performing stewardship of the TTP;

(30) Performing oversight of the TTP and its funded activities;

(31) Performing any other non-contractible TTP activity included in this part; and

(32) Determining eligibility of new uses of TTP funds.

(j) BIADOT Planning:

(1) Maintaining the official TTP inventory;

(2) Reviewing LRTPs;

(3) Reviewing and approving TTPTIPs;

(4) Maintaining nationwide inventory of TTP strip and atlas maps;

(5) Coordinating with Tribal/State/regional/local governments;

(6) Developing and issuing procedures for management systems;

(7) Distributing approved TTPTIPs to BIA regions;

(8) Coordinating with other Federal agencies as applicable;

(9) Coordinating and processing the funding and repair of damaged tribal roads with FHWA;

(10) Calculating and distributing TTP transportation planning funds to BIA regions;

(11) Reprogramming unused TTP transportation planning funds at the end of the fiscal year;

(12) Monitoring the nationwide obligation of TTP transportation planning funds;

(13) Providing technical assistance and training to BIA regions and Tribes;

(14) Approving atlas maps;

(15) Reviewing TTP inventory information for quality assurance; and

(16) Advising BIA regions and Tribes of transportation funding opportunities.

(k) BIADOT engineering:

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

(2) Developing and approving design/construction/maintenance standards;

(3) Conducting TTP/product reviews; and

(4) Developing and issuing technical criteria for management systems.

(l) BIADOT responsibilities for bridges:

(1) Maintaining the National Bridge Inventory information/database for BIA bridges;

(2) Conducting quality assurance of the bridge inspection program;

(3) Reviewing and processing TTP Bridge Program applications;

(4) Participating in second level review of TTP bridge PS&E; and

(5) Developing criteria for bridge management systems.

(m) BIADOT responsibilities to perform other non-contractible required TTP activities contained in this part.

(n) BIA regional offices program management:

(1) Designating TTP System roads;

(2) Notifying Tribes of available funding;

(3) Developing STIPs;

(4) Providing FHWA-approved TTPTIPs to Tribes;

(5) Providing technical assistance to Tribes/Consortiums/tribal organizations/agencies;

(6) Funding common services as provided as part of the region/agency/BIA Division of Transportation TTP costs;

(7) Processing and investigating non-project related tort claims;

(8) Preparing budgets for BIA regional and agency TTP activities;

(9) Developing/revising interagency agreements;

(10) Developing control schedules/transportation improvement programs;

(11) Developing regional TTP stewardship agreements;

(12) Developing quarterly/annual TTP obligation and program accomplishments reports;

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

(14) Responding to/maintaining data for congressional inquiries;

(15) Participating in Indian transportation association meetings;

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

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

(18) Participating in special workgroups, task forces, and meetings as requested by Tribes and BIA region/agency personnel;

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

(20) Reviewing Coordinated Technology Implementation Program project proposals;

(21) Consulting with Tribal governments on non-project related program issues;

(22) Funding costs for common services as provided as part of BIA TTP region/agency/contracting support costs;

(23) Reviewing TTP atlas maps;

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

(25) Monitoring the obligation and expenditure of all TTP funds allocated to the BIA Region;

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

(27) Participating in TTP, process, and product reviews.

(o) BIA regional offices' planning:

(1) Coordinating with Tribal/State/regional/local government;

(2) Coordinating and processing the funding and repair of damaged Tribal Transportation Facility roads with Tribes;

(3) Reviewing and approving TTP inventory data;

(4) Maintaining, reviewing, and approving the management systems databases;

(5) Reviewing and approving STIPs; and

(6) Performing Federal responsibilities identified in the TTP Transportation Planning Procedures and Guidelines manual.

(p) BIA regional offices' engineering:

(1) Approving Tribal standards for TTP use;

(2) Developing and implementing new engineering techniques in the TTP; and

(3) Providing technical assistance.

(q) BIA regional offices' responsibilities for bridges:

(1) Reviewing and processing TTP Bridge Program applications;

(2) Reviewing and processing TTP bridge inspection reports and information; and

(3) Ensuring the safe use of roads and bridges.

(r) BIA regional offices' other responsibilities for performing other non-contractible required TTP activities contained in this part.

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