Indian Reservation Road Bridge Program, 15661-15668 [E8-6007]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 58 (Tuesday, March 25, 2008)]
[Rules and Regulations]
[Pages 15661-15668]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-6007]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 661

[FHWA Docket No. FHWA-2007-27536]
RIN 2125-AF20


Indian Reservation Road Bridge Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: Section 1119 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 
109-59, 119 Stat. 1144) makes significant changes to the Indian 
Reservation Road Bridge Program (IRRBP). In addition, it authorizes $14 
million of IRRBP funds per year for the replacement or rehabilitation 
of structurally deficient or functionally obsolete Indian Reservation 
Road (IRR) bridges. This final rule amends the existing IRRBP by 
establishing new policies and provisions. Also, in this final rule, 
preliminary engineering (PE) is now an eligible activity.

DATES: Effective April 24, 2008.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Sparrow, Federal Lands 
Highway, HFPD-9, (202) 366-9483; or Ms. Vivian Philbin, Federal Lands 
Highway Counsel, HFFC-16, (720) 963-3445; Federal Highway 
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. 
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    Internet users may access this document, the notice of proposed 
rulemaking (NPRM), and all comments received by the DOT by accessing 
the Federal eRulemaking portal at: https://www.regulations.gov. It is 
available 24 hours each day, 365 days each year. Electronic submission 
and retrieval help and guidelines are available under the help section 
of the Web site.
    An electronic copy of this document may also be downloaded by 
accessing the Office of the Federal Register's home page at: https://
www.archives.gov or the Government Printing Office's Web page at http:/
/www.gpoaccess.gov/nara.

Background

    The Transportation Equity Act for the 21st Century (TEA-21) (Pub. 
L. 105-178, 112 Stat. 107), established the IRRBP, codified at 23 
U.S.C.

[[Page 15662]]

202(d)(4)(B) under which a minimum of $13 million of IRR Program funds 
was set aside for a nationwide priority program for improving deficient 
IRR bridges. On May 8, 2003, the FHWA published a final rule for the 
IRRBP at 68 FR 24642 (23 CFR 661). This present rulemaking is necessary 
due to recent legislative changes.
    Section 1119 of the SAFETEA-LU authorizes $14 million per year for 
fiscal years 2005 through 2009 from the Highway Trust Fund for the 
IRRBP to carry out PE, construction engineering (CE), and construction 
to replace or rehabilitate structurally deficient or functionally 
obsolete IRR bridges. Pursuant to the new statutory requirements, the 
FHWA developed amendments to the existing IRRBP regulation. This final 
rule reflects these amendments.

Discussion of Comments Received to the Notice of Proposed Rulemaking

    The FHWA published its NPRM on June 5, 2007, at 72 FR 31013 
requesting comments to the proposed amendments. In response to the 
NPRM, the FHWA received comments from the Indian Reservation Road 
Coordinating Committee (IRRCC) and from three Tribes: The Cherokee 
Nation, Eastern Band of Cherokee Indians, and the Seminole Nation of 
Oklahoma. The FHWA addressed each of the comments in adopting this 
final rule.
    The majority of the comments received addressed several common 
issues. These issues are addressed and discussed under the appropriate 
section below. The remaining sections did not receive comments and will 
be adopted as proposed.

Section-by-Section Discussion of Changes

1. What definitions apply to this regulation? (661.5)

    Structurally deficient (SD)--The definition was updated to 
accurately align it with the FHWA's technical definition. A bridge 
becomes structurally deficient when it reaches the set threshold of one 
of the six criteria from the FHWA's National Bridge Inventory (NBI). 
This update does not change the substance of the definition, but rather 
will reduce ambiguity by making this definition consistent throughout 
FHWA.

2. When is a bridge eligible for replacement? (661.19) and When is a 
bridge eligible for rehabilitation? (661.21)

    The IRRCC recommends that instead of the sufficiency rating numbers 
identified in the NPRM, the final regulation should comply with the 
latest criteria established by the FHWA's National Bridge Inspection 
Standards (NBIS) for replacement or rehabilitation of an IRR bridge 
project.
    The FHWA adopted this recommendation. The regulation now states 
that the rehabilitation and replacement criteria is the same as those 
used in 23 CFR part 650.409(a). This change is made in order for the 
IRRBP rule to be consistent with any future changes in the eligibility 
requirements for rehabilitation or replacement of bridges as 
established by the FHWA. However, this change will not affect the 
existing eligibility requirements in the existing regulations.

3. How will a bridge project be programmed for funding once eligibility 
has been determined? (661.23)

    The IRRCC and the Seminole Nation of Oklahoma recommend that the 
first come first served basis should be eliminated and the criteria for 
ranking for the bridge applications should follow the provisions 
proposed under subparagraph (b)(1)-(b)(6) of this section, and deleting 
the proposed first sentence under subparagraph (b).
    The FHWA adopted this recommendation and revised this section to 
eliminate the first come first served basis. Under this final rule, IRR 
bridges that are most critical will be given the highest priority for 
funding.

4. What does a complete application package for PE consist of and how 
does the project receive funding? (661.25) and What does a complete 
application package for construction consist of and how does the 
project receive funding? (661.27)

    The Seminole Nation of Oklahoma recommends improving these sections 
by adding a timeframe (60 or 90 days) for the FHWA to review and return 
incomplete application packages so projects can be pursued.
    The proposed language in these sections states that an incomplete 
application package would be disapproved and returned for revision and 
resubmission along with the notation as to why it was disapproved. The 
FHWA believes that with this provision the projects can still be 
pursued once the application is completed and resubmitted to the Bureau 
of Indian Affairs (BIA) and the FHWA.
    Likewise, the revised language in these sections clarifies that the 
Tribes that will receive direct funding from the FHWA are the Tribes 
who entered into a contract with the FHWA under an FHWA/Tribal 
agreement.

5. How does ownership impact project selection? (661.29)

    The Cherokee Nation commented that this proposed section places a 
much higher priority on BIA bridges versus non-BIA bridges even though 
the statute makes no mention of distinction between the two. They 
object to the ownership distinctions in the proposed language of this 
section.
    The FHWA believes that the ownership requirement in this section is 
an issue since the States and counties have ownership and primary 
responsibility for their bridges. Therefore, a smaller percentage of 
available funds has been set aside for non-BIA bridges since the States 
and counties have access to Federal-aid and other funding sources to 
replace or rehabilitate their bridges, whereas the IRRBP is the only 
funding source for the BIA and Tribal bridges. As such, the FHWA will 
retain the language in this section as proposed in the NPRM.

6. What percentage of IRRBP funding is available for PE and 
construction? (661.33)

    The Eastern Band of Cherokee Indians does not agree with the 
proposal that 15 percent of IRRBP funding be eligible for PE costs. 
They believe that typical PE costs average 10 percent and that the 
proposed percentage should be reduced accordingly.
    The FHWA maintains that given the historic average size of the 
projects, the 15 percent limit for PE is adequate and feels that this 
percentage represents the average cost of PE on the size of projects 
typically funded through this program. Therefore, the FHWA has adopted 
the language as proposed.

7. What percentage of IRRBP funding is available for use on BIA owned 
IRR bridges and non-BIA owned IRR bridges? (661.35)

    The Cherokee Nation disagrees with the proposed regulation in this 
section in that the larger percentage of the IRRBP funds is set aside 
for BIA bridges versus the non-BIA bridges.
    The FHWA's response to the comment is that the existing regulation 
states that up to 80 percent of the annual funding will be available 
for use on BIA and Tribally owned bridges with the remaining funds to 
be used for non-BIA owned bridges. This final rule utilizes the same 
funding distribution but it has the ability to shift funds between BIA 
and Tribally owned, and non-BIA owned bridge projects at various times 
during the fiscal year so

[[Page 15663]]

as to maximize the number of projects funded and the overall 
effectiveness of the program regardless of ownership.

8. What are the funding limitations on individual IRRBP projects? 
(661.37)

    The Cherokee Nation, Eastern Band of Cherokee Indians, and the 
Seminole Nation of Oklahoma made similar comments on this section. 
These Tribes disagree with the funding limitation established by the 
FHWA for construction of non-BIA owned bridges. Likewise, they feel 
that the requirement to provide 20 percent matching funds in order to 
qualify for IRRBP funds would result in unfair treatment for some 
Tribes.
    The proposed funding ceiling of $1,000,000 for non-BIA owned 
bridges was developed based on a review of historical data on IRRBP 
funded projects. The FHWA determined that non-BIA owned bridge projects 
have an average project size less than $600,000, and more than 75 
percent of the projects were funded at a level below $1,000,000. 
However, to meet funding flexibility, this section will now allow a 
Tribe to request additional funds for non-BIA owned projects that are 
above the thresholds by submitting a written justification for 
consideration to the FHWA. The approval of the requests would be 
considered on a case-by-case basis.

9. What should be done with a deficient BIA owned IRR bridge if the 
Indian Tribe does not support the project? (661.59)

    The FHWA revised the proposed section in the NPRM to clarify that 
when the Tribe does not support a deficient IRR bridge for 
rehabilitation or replacement, the deficient IRR bridge can still 
remain open for traffic provided the structure's load rating is reduced 
to protect the safety of the motoring public.

Other

    The IRRCC recommends that the proposed regulation be revised to 
clarify that a Tribally owned bridge be treated the same as a BIA-owned 
bridge for purposes of eligibility for replacement or rehabilitation 
and preliminary engineering costs.
    The FHWA adopted the recommendation and Tribal bridges are now 
considered the same as BIA owned with regard to the funding criteria to 
align it to the IRR Program policy as established in 25 CFR part 170. 
The Tribal bridges are now eligible to receive 100 percent of funding 
for construction and $150,000 maximum limit for PE.

Distribution and Derivation Tables

    For ease of reference, distribution and derivation tables are 
provided for the current sections and the new sections, as follows:

                           Distribution Table
------------------------------------------------------------------------
             Old section                          New section
------------------------------------------------------------------------
661.1...............................  661.1.
661.3...............................  661.3--Revised.
661.5...............................  661.5--Revised.
661.7...............................  661.7--Revised.
661.9...............................  661.23--Redesignated and Revised.
661.11..............................  661.41--Redesignated and Revised.
661.13..............................  Removed.
661.15..............................  661.9--Redesignated.
661.17..............................  661.11--Redesignated.
661.19..............................  Removed.
661.21..............................  661.13--Redesignated.
661.23..............................  661.15--Redesignated and Revised.
661.25..............................  661.17--Redesignated and Revised.
661.27..............................  661.19--Redesignated and Revised.
661.29..............................  661.21--Redesignated and Revised.
661.31..............................  661.29--Redesignated and Revised.
661.33..............................  661.31--Redesignated and Revised.
661.35..............................  661.35--Revised.
661.37..............................  661.37--Revised.
661.39..............................  Removed.
661.41..............................  661.27--Redesignated and Revised.
661.43..............................  Removed.
661.45..............................  661.57--Redesignated.
661.47..............................  661.39--Redesignated and Revised.
661.49..............................  661.43--Redesignated and Revised.
661.51..............................  661.47--Redesignated and Revised.
None................................  661.25--Added.
None................................  661.33--Added.
None................................  661.45--Added.
None................................  661.49--Added.
None................................  661.51--Added.
None................................  661.53--Added.
None................................  661.55--Added.
None................................  661.59--Added.
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                            Derivation Table
------------------------------------------------------------------------
             New section                          Old section
------------------------------------------------------------------------
661.1...............................  661.1.
661.3...............................  661.3.
661.5...............................  661.5.
661.7...............................  661.7.
661.9...............................  661.15.
661.11..............................  661.17.
661.13..............................  661.21.
661.15..............................  661.23.
661.17..............................  661.25.
661.19..............................  661.27.
661.21..............................  661.29.
661.23..............................  661.9.
661.25..............................  None.
661.27..............................  661.41.
661.29..............................  661.31.
661.31..............................  661.33.
661.33..............................  None.
661.35..............................   661.35.
661.37..............................  661.37.
661.39..............................  661.47.
661.41..............................  661.11.
661.43..............................  661.49.
661.45..............................  None.
661.47..............................   661.51.
661.49..............................  None.
661.51..............................   None.
661.53..............................   None.
661.55..............................   None.
661.57..............................   661.45.
661.59..............................  None.
------------------------------------------------------------------------

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and USDOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action would not be a significant 
regulatory action within the meaning of Executive Order 12866 and would 
not be significant within the meaning of U.S. Department of 
Transportation regulatory policies and procedures. It is anticipated 
that the economic impact of this rulemaking would be minimal. This rule 
would not adversely affect, in a material way, any sector of the 
economy. In addition, these changes would not interfere with any action 
taken or planned by another agency and would not materially alter the 
budgetary impact of any entitlements, grants, user fees, or loan 
programs. Consequently, a full regulatory evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612) the FHWA has evaluated the effects of this action on 
small entities and has determined that this action would not have a 
significant economic impact on a substantial number of small entities. 
This final rule amends the existing regulations pursuant to section 
1119 of SAFETEA-LU and would not fundamentally alter the funding 
available for the replacement or rehabilitation of structurally 
deficient or functionally obsolete IRR bridges. For these reasons, the 
FHWA certifies that this action would not have a significant economic 
impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L.

[[Page 15664]]

104-4, March 22, 1995, 109 Stat. 48). This rule will not result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $128.1 million or more in any one year (2 
U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform 
Act of 1995, the FHWA will evaluate any regulatory action that might be 
proposed in subsequent stages of the proceeding to assess the effects 
on State, local, tribal governments and the private sector.

Executive Order 13132 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, and the FHWA has 
determined that this action would not have sufficient federalism 
implications to warrant the preparation of a federalism assessment. The 
FHWA has also determined that this proposed action would not preempt 
any State law or State regulation or affect the States' ability to 
discharge traditional State governmental functions.

Executive Order 13175 (Tribal Consultation)

    The FHWA met with the IRRCC at three separate meetings in Tulsa, 
Oklahoma, in February, 2006; Denver, Colorado, in March, 2006; and 
Hinckley, Minnesota, in August, 2006, to jointly review the proposed 
regulation and provide the IRRCC with the opportunity to make 
recommendations prior to publishing the NPRM. The IRRCC was established 
under 25 CFR part 170 by the Secretaries of the Interior and 
Transportation, to provide input and recommendation to BIA and FHWA in 
developing IRR Program policies and procedures and to supplement 
government-to-government consultation by coordinating and obtaining 
input from Tribes, BIA, and FHWA. The IRRCC consists of primary and 
alternate Tribal representatives from each of the 12 BIA Regions, along 
with 2 non-voting Federal representatives (one each from BIA and FHWA).
    The proposed regulation was first distributed to the IRRCC at the 
Tulsa meeting referenced above. The IRRCC then met in a special meeting 
in Denver, Colorado, specifically to review the regulation and develop 
recommendations for the FHWA rulemaking. The funding workgroup of the 
IRRCC was assigned the task of carrying forth the recommendations to 
FHWA. In Hinckley, Minnesota, the FHWA met with the funding workgroup 
and together they reviewed the comments. The NPRM reflected the results 
of the initial IRRCC input.
    The FHWA and IRRCC met again in August 2007 in Ketchikan, Alaska. 
At that meeting, the IRRCC reviewed the published NPRM and provided 
recommendations and comments to FHWA. All aspects of the regulation 
were reviewed by the IRRCC and the comments received by the IRRCC and 
its members are discussed above in the section-by-section discussion.

Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use dated May 18, 2001. We have determined that it is 
not a significant energy action under that order since it is not likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy. Therefore, a Statement of Energy Effects is not 
required.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501), 
Federal agencies must obtain approval from the Office of Management and 
Budget (OMB) for each collection of information they conduct, sponsor, 
or require through regulations. The FHWA has determined that this 
action does not contain collection of information requirements for the 
purposes of the PRA.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminates ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. The FHWA 
certifies that this action would not cause any environmental risk to 
health or safety that might disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this rule under Executive Order 12630, 
Governmental Actions and Interface with Constitutionally Protected 
Property Rights. The FHWA does not anticipate that this action would 
affect a taking of private property or otherwise have taking 
implications under Executive Order 12630.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has 
determined that this action would not have any effect on the quality of 
the environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 23 CFR Part 661

    Indian Reservation Road Bridge Program.

    Issued on: March 14, 2008.
James D. Ray,
Acting Federal Highway Administrator.

0
In consideration of the foregoing, the FHWA amends title 23, Code of 
Federal Regulations, by revising part 661 to read as set forth below:

PART 661--INDIAN RESERVATION ROAD BRIDGE PROGRAM

Sec.
661.1 What is the purpose of this regulation?
661.3 Who must comply with this regulation?
661.5 What definitions apply to this regulation?
661.7 What is the IRRBP?
661.9 What is the total funding available for the IRRBP?
661.11 When do IRRBP funds become available?
661.13 How long are these funds available?
661.15 What are the eligible activities for IRRBP funds?
661.17 What are the criteria for bridge eligibility?
661.19 When is a bridge eligible for replacement?
661.21 When is a bridge eligible for rehabilitation?

[[Page 15665]]

661.23 How will a bridge project be programmed for funding once 
eligibility has been determined?
661.25 What does a complete application package for PE consist of 
and how does the project receive funding?
661.27 What does a complete application package for construction 
consist of and how does the project receive funding?
661.29 How does ownership impact project selection?
661.31 Do IRRBP projects have to be listed on an approved IRR TIP?
661.33 What percentage of IRRBP funding is available for PE and 
construction?
661.35 What percentage of IRRBP funding is available for use on BIA 
and Tribally owned IRR bridges, and non-BIA owned IRR bridges?
661.37 What are the funding limitations on individual IRRPB 
projects?
661.39 How are project cost overruns funded?
661.41 After a bridge project has been completed (either PE or 
construction) what happens with the excess or surplus funding?
661.43 Can other sources of funds be used to finance a queued 
project in advance of receipt of IRRBP funds?
661.45 What happens when IRRBP funds cannot be obligated by the end 
of the fiscal year?
661.47 Can bridge maintenance be performed with IRRBP funds?
661.49 Can IRRBP funds be spent on Interstate, State Highway, and 
Toll Road IRR bridges?
661.51 Can IRRBP funds be used for the approach roadway to a bridge?
661.53 What standards should be used for bridge design?
661.55 How are BIA and Tribal owned IRR bridges inspected?
661.57 How is a list of deficient bridges to be generated?
661.59 What should be done with a deficient BIA owned IRR bridge if 
the Indian Tribe does not support the project?

    Authority: 23 U.S.C. 120(j) and (k), 202, and 315; Section 1119 
of the Safe, Accountable, Flexible, Efficient Transportation Equity 
Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 
1144); and 49 CFR 1.48.


Sec.  661.1  What is the purpose of this regulation?

    The purpose of this regulation is to prescribe policies for project 
selection and fund allocation procedures for administering the Indian 
Reservation Road Bridge Program (IRRBP).


Sec.  661.3  Who must comply with this regulation?

    Public authorities must comply to participate in the IRRBP by 
applying for preliminary engineering (PE), construction, and 
construction engineering (CE) activities for the replacement or 
rehabilitation of structurally deficient and functionally obsolete 
Indian Reservation Road (IRR) bridges.


Sec.  661.5  What definitions apply to this regulation?

    The following definitions apply to this regulation:
    Approach roadway means the portion of the highway immediately 
adjacent to the bridge that affects the geometrics of the bridge, 
including the horizontal and vertical curves and grades required to 
connect the existing highway alignment to the new bridge alignment 
using accepted engineering practices and ensuring that all safety 
standards are met.
    Construction engineering (CE) is the supervision, inspection, and 
other activities required to ensure the project construction meets the 
project's approved acceptance specifications, including but not limited 
to: additional survey staking functions considered necessary for 
effective control of the construction operations; testing materials 
incorporated into construction; checking shop drawings; and 
measurements needed for the preparation of pay estimates.
    Functionally obsolete (FO) is the state in which the deck geometry, 
load carrying capacity (comparison of the original design load to the 
State legal load), clearance, or approach roadway alignment no longer 
meets the usual criteria for the system of which it is an integral 
part.
    Indian Reservation Road (IRR) means a public road that is located 
within or provides access to an Indian reservation or Indian trust land 
or restricted Indian land that is not subject to fee title alienation 
without the approval of the Federal government, or Indian and Alaska 
Native villages, groups, or communities in which Indians and Alaska 
Natives reside, whom the Secretary of the Interior has determined are 
eligible for services generally available to Indians under Federal laws 
specifically applicable to Indians.
    Indian reservation road bridge means a structure located on an IRR, 
including supports, erected over a depression or an obstruction, such 
as water, a highway, or a railway, and having a track or passageway for 
carrying traffic or other moving loads, and having an opening measured 
along the center of the roadway of more than 20 feet between 
undercopings of abutments or spring lines of arches, or extreme ends of 
the openings for multiple boxes; it may also include multiple pipes, 
where the clear distance between openings is less than half of the 
smaller contiguous opening.
    Life cycle cost analysis (LCCA) means a process for evaluating the 
total economic worth of a usable project segment by analyzing initial 
costs and discounted future costs, such as maintenance, user costs, 
reconstruction, rehabilitation, restoring, and resurfacing costs, over 
the life of the project segment.
    National Bridge Inventory (NBI) means the aggregation of structure 
inventory and appraisal data collected to fulfill the requirements of 
the National Bridge Inspection Standards (NBIS).
    Plans, specifications and estimates (PS&E) means construction 
drawings, compilation of provisions, and construction project cost 
estimates for the performance of the prescribed scope of work.
    Preliminary engineering (PE) means planning, survey, design, 
engineering, and preconstruction activities (including archaeological, 
environmental, and right-of-way activities) related to a specific 
bridge project.
    Public authority means a Federal, State, county, town, or township, 
Indian tribe, municipal or other local government or instrumentality 
with authority to finance, build, operate, or maintain toll or toll-
free facilities.
    Public road means any road or street under the jurisdiction of and 
maintained by a public authority and open to public travel.
    Structurally deficient (SD) means a bridge becomes structurally 
deficient when it reaches the set threshold of one of the six criteria 
from the FHWA NBI.
    Structure Inventory and Appraisal (SI&A) Sheet means the graphic 
representation of the data recorded and stored for each NBI record in 
accordance with the Recording and Coding Guide for the Structure 
Inventory and Appraisal of the Nation's Bridges (Report No. FHWA-PD-96-
001).
    Sufficiency rating (SR) means the numerical rating of a bridge 
based on its structural adequacy and safety, essentiality for public 
use, and its serviceability and functional obsolescence.


Sec.  661.7  What is the IRRBP?

    The IRRBP, as established under 23 U.S.C. 202(d)(4), is a 
nationwide priority program for improving structurally deficient and 
functionally obsolete IRR bridges.


Sec.  661.9  What is the total funding available for the IRRBP?

    The statute authorizes $14 million to be appropriated from the 
Highway Trust Fund in Fiscal Years 2005 through 2009.

[[Page 15666]]

Sec.  661.11  When do IRRBP funds become available?

    IRRBP funds are authorized at the start of each fiscal year but are 
subject to Office of Management and Budget apportionment before they 
become available to FHWA for further distribution.


Sec.  661.13  How long are these funds available?

    IRRBP funds for each fiscal year are available for obligation for 
the year authorized plus three years (a total of four years).


Sec.  661.15  What are the eligible activities for IRRBP funds?

    (a) IRRBP funds can be used to carry out PE, construction, and CE 
activities of projects to replace, rehabilitate, seismically retrofit, 
paint, apply calcium magnesium acetate, sodium acetate/formate or other 
environmentally acceptable, minimally corrosive anti-icing and deicing 
compositions, or install scour countermeasures for structurally 
deficient or functionally obsolete IRR bridges, including multiple pipe 
culverts.
    (b) If a bridge is replaced under the IRRBP, IRRBP funds can be 
also used for the demolition of the old bridge.


Sec.  661.17  What are the criteria for bridge eligibility?

    (a) Bridge eligibility requires the following:
    (1) Have an opening of 20 feet or more;
    (2) Be located on an IRR that is included in the IRR Inventory;
    (3) Be structurally deficient or functionally obsolete, and
    (4) Be recorded in the NBI maintained by the FHWA.
    (b) Bridges that were constructed, rehabilitated or replaced in the 
last 10 years, will be eligible only for seismic retrofit or 
installation of scour countermeasures.


Sec.  661.19  When is a bridge eligible for replacement?

    To be eligible for replacement, the bridge must be considered 
structurally deficient or functionally obsolete and must be in 
accordance with 23 CFR part 650.409(a) for bridge replacement. After an 
existing bridge is replaced under the IRRBP, it must be taken 
completely out of service and removed from the inventory. If the 
original bridge is considered historic, it must still be removed from 
the inventory, however the Tribe is allowed to request an exemption 
from the BIA Division of Transportation (BIADOT) to allow the bridge to 
remain in place.


Sec.  661.21  When is a bridge eligible for rehabilitation?

    To be eligible for rehabilitation, the bridge must be considered 
structurally deficient or functionally obsolete and must be in 
accordance with 23 CFR part 650.409(a) for bridge rehabilitation. A 
bridge eligible for rehabilitation may be replaced if the life cycle 
cost analysis is conducted which shows the cost for bridge 
rehabilitation exceeds the replacement cost.


Sec.  661.23  How will a bridge project be programmed for funding once 
eligibility has been determined?

    (a) All projects will be programmed for funding after a completed 
application package is received and accepted by the FHWA. At that time, 
the project will be acknowledged as either BIA and Tribally owned, or 
non-BIA owned and placed in either a PE or a construction queue.
    (b) All projects will be ranked and prioritized based on the 
following criteria:
    (1) Bridge sufficiency rating (SR);
    (2) Bridge status with structurally deficient (SD) having 
precedence over functionally obsolete (FO);
    (3) Bridges on school bus routes;
    (4) Detour length;
    (5) Average daily traffic; and
    (6) Truck average daily traffic.
    (c) Queues will carryover from fiscal year to fiscal year as made 
necessary by the amount of annual funding made available.


Sec.  661.25  What does a complete application package for PE consist 
of and how does the project receive funding?

    (a) A complete application package for PE consists of the 
following: the certification checklist, IRRBP transportation 
improvement program (TIP), project scope of work, detailed cost for PE, 
and SI&A sheet.
    (b) For non-BIA IRR bridges, the application package must also 
include a tribal resolution supporting the project and identification 
of the required minimum 20 percent local funding match.
    (c) The IRRBP projects for PE will be placed in queue and 
determined as eligible for funding after receipt by FHWA of a complete 
application package. Incomplete application packages will be 
disapproved and returned for revision and resubmission along with a 
notation providing the reason for disapproval.
    (d) Funding for the approved eligible projects on the queues will 
be made available to the Tribes, under an FHWA/Tribal agreement, or the 
Secretary of the Interior upon availability of program funding at FHWA.


Sec.  661.27  What does a complete application package for construction 
consist of and how does the project receive funding?

    (a) A complete application package for construction consists of the 
following: a copy of the approved PS&E, the certification checklist, 
SI&A sheet, and IRRBP TIP. For non-BIA IRR bridges, the application 
package must also include a copy of a letter from the bridge's owner 
approving the project and its PS&E, a tribal resolution supporting the 
project, and identification of the required minimum 20 percent local 
funding match. All environmental and archeological clearances and 
complete grants of public rights-of-way must be acquired prior to 
submittal of the construction application package.
    (b) The IRRBP projects for construction will be placed in queue and 
determined as eligible for funding after receipt by FHWA of a complete 
application package. Incomplete application packages will be 
disapproved and returned for revision and resubmission along with a 
notation providing the reason for disapproval.
    (c) Funding for the approved eligible projects on the queues will 
be made available to the Tribes, under an FHWA/Tribal agreement, or the 
Secretary of the Interior upon availability of program funding at FHWA.


Sec.  661.29  How does ownership impact project selection?

    Since the Federal government has both a trust responsibility and 
owns the BIA bridges on Indian reservations, primary consideration will 
be given to eligible projects on BIA and Tribally owned IRR bridges. A 
smaller percentage of available funds will be set aside for non-BIA IRR 
bridges, since States and counties have access to Federal-aid and other 
funding to design, replace and rehabilitate their bridges and that 23 
U.S.C. 204(c) requires that IRR funds be supplemental to and not in 
lieu of other funds apportioned to the State. The program policy will 
be to maximize the number of IRR bridges participating in the IRRBP in 
a given fiscal year regardless of ownership.


Sec.  661.31  Do IRRBP projects have to be listed on an approved IRR 
TIP?

    Yes. All IRRBP projects must be listed on an approved IRR TIP. The 
approved IRR TIP will be forwarded by FHWA to the respective State for 
inclusion into its State TIP.


Sec.  661.33  What percentage of IRRBP funding is available for PE and 
construction?

    Up to 15 percent of the funding made available in any fiscal year 
will be

[[Page 15667]]

eligible for PE. The remaining funding in any fiscal year will be 
available for construction.


Sec.  661.35  What percentage of IRRBP funding is available for use on 
BIA and Tribally owned IRR bridges, and non-BIA owned IRR bridges?

    (a) Up to 80 percent of the available funding made available for PE 
and construction in any fiscal year will be eligible for use on BIA and 
Tribally owned IRR bridges. The remaining funding in any fiscal year 
will be made available for PE and construction for use on non-BIA owned 
IRR bridges.
    (b) At various times during the fiscal year, FHWA will review the 
projects awaiting funding and may shift funds between BIA and Tribally 
owned, and non-BIA owned bridge projects so as to maximize the number 
of projects funded and the overall effectiveness of the program.


Sec.  661.37  What are the funding limitations on individual IRRBP 
projects?

    The following funding provisions apply in administration of the 
IRRBP:
    (a) An IRRBP eligible BIA and Tribally owned IRR bridge is eligible 
for 100 percent IRRBP funding, with a $150,000 maximum limit for PE.
    (b) An IRRBP eligible non-BIA owned IRR bridge is eligible for up 
to 80 percent IRRBP funding, with a $150,000 maximum limit for PE and 
$1,000,000 maximum limit for construction. The minimum 20 percent local 
match will need to be identified in the application package. IRR 
Program construction funds received by a Tribe may be used as the local 
match.
    (c) Requests for additional funds above the referenced thresholds 
may be submitted along with proper justification to FHWA for 
consideration. The request will be considered on a case-by-case basis. 
There is no guarantee for the approval of the request for additional 
funds.


Sec.  661.39  How are project cost overruns funded?

    (a) A request for additional IRRBP funds for cost overruns on a 
specific bridge project must be submitted to BIADOT and FHWA for 
approval. The written submission must include a justification, an 
explanation as to why the overrun occurred, and the amount of 
additional funding required with supporting cost data. If approved by 
FHWA, the request will be placed at the top of the appropriate queue 
(with a contract modification request having a higher priority than a 
request for additional funds for a project award) and funding may be 
provided if available.
    (b) Project cost overruns may also be funded out of the Tribe's 
regular IRR Program construction funding.


Sec.  661.41  After a bridge project has been completed (either PE or 
construction) what happens with the excess or surplus funding?

    Since the funding is project specific, once a bridge design or 
construction project has been completed under this program, any excess 
or surplus funding is returned to FHWA for use on additional approved 
deficient IRRBP projects.


Sec.  661.43  Can other sources of funds be used to finance a queued 
project in advance of receipt of IRRBP funds?

    Yes. A Tribe can use other sources of funds, including IRR Program 
construction funds, on a project that has been approved for funding and 
placed on the queue and then be reimbursed when IRRBP funds become 
available. If IRR Program construction funds are used for this purpose, 
the funds must be identified on an FHWA approved IRR TIP prior to their 
expenditure.


Sec.  661.45  What happens when IRRBP funds cannot be obligated by the 
end of the fiscal year?

    IRRBP funds provided to a project that cannot be obligated by the 
end of the fiscal year are to be returned to FHWA during August 
redistribution. The returned funds will be re-allocated to the BIA the 
following fiscal year after receipt and acceptance at FHWA from BIA of 
a formal request for the funds, which includes a justification for the 
amounts requested and the reason for the failure of the prior year 
obligation.


Sec.  661.47  Can bridge maintenance be performed with IRRBP funds?

    No. Bridge maintenance repairs, e.g., guard rail repair, deck 
repairs, repair of traffic control devices, striping, cleaning 
scuppers, deck sweeping, snow and debris removal, etc., are not 
eligible uses of IRRBP funding. The Department of the Interior annual 
allocation for maintenance and IRR Program construction funds are 
eligible funding sources for bridge maintenance.


Sec.  661.49  Can IRRBP funds be spent on Interstate, State Highway, 
and Toll Road IRR bridges?

    Yes. Interstate, State Highway, and Toll Road IRR bridges are 
eligible for funding as described in Sec.  661.37(b).


Sec.  661.51  Can IRRBP funds be used for the approach roadway to a 
bridge?

    (a) Yes, costs associated with approach roadway work, as defined in 
Sec.  661.5 are eligible.
    (b) Long approach fills, causeways, connecting roadways, 
interchanges, ramps, and other extensive earth structures, when 
constructed beyond an attainable touchdown point, are not eligible uses 
of IRRBP funds.


Sec.  661.53  What standards should be used for bridge design?

    (a) Replacement--A replacement structure must meet the current 
geometric, construction and structural standards required for the types 
and volumes of projected traffic on the facility over its design life 
consistent with 25 CFR part 170, Subpart D, Appendix B and 23 CFR part 
625.
    (b) Rehabilitation--Bridges to be rehabilitated, as a minimum, 
should conform to the standards of 23 CFR part 625, Design Standards 
for Federal-aid Highways, for the class of highway on which the bridge 
is a part.


Sec.  661.55  How are BIA and Tribal owned IRR bridges inspected?

    BIA and Tribally owned IRR bridges are inspected in accordance with 
25 CFR part 170.504-170.507.


Sec.  661.57  How is a list of deficient bridges to be generated?

    (a) In consultation with the BIA, a list of deficient BIA IRR 
bridges will be developed each fiscal year by the FHWA based on the 
annual April update of the NBI. The NBI is based on data from the 
inspection of all bridges. Likewise, a list of non-BIA IRR bridges will 
be obtained from the NBI. These lists would form the basis for 
identifying bridges that would be considered potentially eligible for 
participation in the IRRBP. Two separate master bridge lists (one each 
for BIA and non-BIA IRR bridges) will be developed and will include, at 
a minimum, the following:
    (1) Sufficiency rating (SR);
    (2) Status (structurally deficient or functionally obsolete);
    (3) Average daily traffic (NBI item 29);
    (4) Detour length (NBI item 19); and
    (5) Truck average daily traffic (NBI item 109).
    (b) These lists would be provided by the FHWA to the BIADOT for 
publication and notification of affected BIA regional offices, Indian 
Tribal governments (ITGs), and State and local governments.
    (c) BIA regional offices, in consultation with ITGs, are encouraged 
to prioritize the design for bridges that are structurally deficient 
over bridges that are simply functionally obsolete, since the former is 
more critical structurally than the latter. Bridges that have higher 
average daily traffic (ADT) should be considered before those that have 
lower ADT. Detour length should

[[Page 15668]]

also be a factor in selection and submittal of bridges, with those 
having a higher detour length being of greater concern. Lastly, bridges 
with higher truck ADT should take precedence over those which have 
lower truck ADT. Other items of note should be whether school buses use 
the bridge and the types of trucks that may cross the bridge and the 
loads imposed.


Sec.  661.59  What should be done with a deficient BIA owned IRR bridge 
if the Indian Tribe does not support the project?

    The BIA should notify the Tribe and encourage the Tribe to develop 
and submit an application package to FHWA for the rehabilitation or 
replacement of the bridge. For safety of the motoring public, if the 
Tribe decides not to pursue the bridge project, the BIA shall work with 
the Tribe to either reduce the bridge's load rating or close the 
bridge, and remove it from the IRR inventory in accordance with 25 CFR 
part 170 (170.813).

[FR Doc. E8-6007 Filed 3-24-08; 8:45 am]
BILLING CODE 4910-22-P