Tribal Transportation Facility Bridge Program, 57078-57085 [2024-14933]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 89, Number 134 (Friday, July 12, 2024)]
[Rules and Regulations]
[Pages 57078-57085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14933]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 661

[FHWA Docket No. FHWA-2019-0039]
RIN 2125-AF91


Tribal Transportation Facility Bridge Program

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the existing Tribal Transportation 
Program Bridge Program, formerly known as the Indian Reservation Road 
(IRR) Bridge Program, by renaming it the Tribal Transportation Facility 
Bridge Program (TTFBP) to comply with the changes made in the Moving 
Ahead for Progress in the 21st Century Act (MAP-21), carried on through 
the Fixing America's Surface Transportation (FAST) Act, and the recent 
changes made by the Bipartisan Infrastructure Law (BIL), enacted as the 
Infrastructure Investment and Jobs Act (IIJA). It also removes 
references to terms such as structurally deficient, functionally 
obsolete, and sufficiency rating. These updates aligned the TTFBP 
terminology for bridge conditions with the terminology used for State 
departments of

[[Page 57079]]

transportation (State DOT) in the Federal-aid highway program. This 
change established consistent terminology for classifying and referring 
to bridge conditions.

DATES: This final rule is effective August 12, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Russell Garcia, P.E., Federal 
Lands Highway/Office of Tribal Transportation, [email protected], 
(703) 404-6223, or Silvio Morales, Office of the Chief Counsel, 
[email protected], (202) 366-1345, Federal Highway Administration, 
1200 New Jersey Avenue SE, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    This document, the notice of proposed rulemaking (NPRM), and all 
comments received may be viewed online through the Federal eRulemaking 
portal at www.regulations.gov using the docket number listed above. 
Electronic retrieval help and guidelines are available on the website. 
It is available 24 hours each day, 365 days each year. An electronic 
copy of this document may also be downloaded by accessing the Office of 
the Federal Register's website at: www.federalregister.gov and the U.S. 
Government Publishing Office's website at: www.GovInfo.gov.

Background

Legal Authority

    This regulatory action is necessary to update 23 CFR part 661 to 
reflect the changes made to the program since the last regulatory 
update in 2008 (73 FR 15664, Mar. 25, 2008). These changes are largely 
nomenclature changes to the existing regulation that FHWA has been 
implementing under 23 U.S.C. 202(d), and do not substantively change 
the TTFBP. Importantly, this rule aligns the TTFBP terminology for 
bridge conditions with the terminology used in the Federal-aid highway 
program for State DOTs. This change establishes a consistent 
terminology for classifying and referring to bridge conditions.

Discussion of Comments Received to the Notice of Proposed Rulemaking

    The FHWA published its NPRM on April 04, 2023, at 88 FR 19571, 
requesting comments to the proposed amendments. In response to the 
NPRM, FHWA received comments from the Intertribal Transportation 
Association (ITA), 1 Tribal consultant, 1 anonymous commenter, and from 
12 Tribes: the Cheyenne River Sioux Tribe, Oglala Sioux Tribe, Omaha 
Tribe, Chickasaw Nation, Forest County Potawatomi Community, Ho Chunk 
Nation, Pueblo of Jemez, Nez Perce Tribe, Standing Rock Sioux Tribe, 
Spirit Lake Tribe, Trinidad Rancheria, and the Spirit Lake Tribe. The 
FHWA considered each of the comments in adopting this final rule.
    Most 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

    (This discussion references the existing regulation, including 
prior nomenclature).

1. Who must comply with this regulation? (Sec.  661.3)

    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe recommended deleting ``and Tribal 
Consortiums'' from this section.
    The FHWA adopted this recommendation throughout the regulation 
because the primary applicant is the Tribe.

2. What are the eligible activities for TTFBP funds? (Sec.  661.15)

    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe recommended including the installation of 
scour countermeasures in this section.
    While scour countermeasures have always been an eligible activity 
for TTFBP funds, FHWA adopts the recommendation to add an explicit 
reference to the installation of scour countermeasures in this section 
for clarity. Also, FHWA added safety inspection of in-service bridges 
as part of eligible planning activities and clarified the inspection of 
new or replacement Tribal Transportation Facility (TTF) bridges is for 
construction inspection activity.

3. What are the criteria for bridge eligibility? (Sec.  661.17)

    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe recommended in Sec.  661.17(a)(2) to add the 
requirement that the Tribal transportation facility be in the National 
Tribal Transportation Facility Inventory (NTTFI).
    The FHWA does not believe the additional language is necessary 
because it is covered by the Tribal transportation facility definition 
in this regulation.
    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe also recommended that Sec.  661.17(b)(1) 
should allow design of a new bridge to begin without the bridge being 
in the NTTFI, although they did not request changes to the proposed 
regulatory text. They recommended that as long as the bridge project is 
on a Tribal Transportation Improvement Plan (TTIP) and is approved by 
the Tribal Council, it can be added to the NTTFI during design, and the 
bridge must be classified as a Tribal transportation facility in the 
NTTFI to be eligible for construction.
    The FHWA agrees with this position and notes that nothing in Sec.  
661.17(b)(1) would prohibit this interpretation. The FHWA does believe, 
however, that the new bridge to be designed and constructed must be 
within a route that is identified in the NTTFI. With respect to newly 
funded bridges still in the design stage, Tribes should start the 
process of recording the bridge in the NTTFI and not wait after it is 
built.
    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe also recommended that culverts be added to 
the new proposed regulations as eligible projects.
    The FHWA declines to adopt this proposal but notes that replacing 
an existing culvert with a culvert that meets the definition of a TTF 
bridge could be funded under the TTFBP as a new bridge.
    Finally, FHWA has also removed references in Sec.  661.17(a)(1) and 
(b)(2) to the length of the bridge opening and has replaced them with a 
reference to the definition of TTF bridge to increase clarity.

4. When is a bridge eligible for replacement? (Sec.  661.19)

    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe asked if any leftover TTFBP funds at the end 
of the fiscal year could be used to fund bridges in fair condition.
    The FHWA regulation does allow for fair condition bridges needing 
geometric improvements to be eligible for funding as long as they meet 
the criteria for bridge eligibility in Sec.  661.17.

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

    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe recommended that Bureau of Indian Affairs 
(BIA) owned bridges be a priority for funding and that new

[[Page 57080]]

bridges rank third in the ranking criteria after poor condition 
bridges.
    The FHWA recognizes the Tribes' interest in maximizing TTFBP funds 
for BIA and Tribal TTF bridges and adopted this recommendation. Up to 
80 percent of the funding made available for Preliminary Engineering 
(PE) and construction in any fiscal year is eligible for use on BIA and 
Tribally owned TTF bridges. The FHWA also adopted the recommendation 
that new bridge construction be added to the ranking criteria for 
funding. However, FHWA believes that it is most appropriate to add it 
as the fourth ranking criteria so as to prioritize projects addressing 
safety.
    The FHWA has made three additional changes to the final rule text 
to increase clarity. First, we replaced the phrase ``All projects will 
be programmed for funding'' with the phrase ``All projects will be 
ranked and prioritized for funding.'' The new language provides 
consistency with the language in Sec.  661.23(b) and better describes 
the implementation of the program. Second, we replaced the phrase ``low 
load capacity bridges based on Operating Rating'' with the phrase 
``operating rating for bridges in poor condition with lower operating 
rating having precedence over higher operating rating''. The new 
language provides clarity to use the operating rating as a ranking 
criterion for poor condition bridges with the same condition rating. 
Finally, we removed the numerical item numbers from the condition 
rating item names in Sec.  661.23(d)(1). This change will reduce 
confusion as FHWA transitions from the Recording and Coding Guide for 
the Structure Inventory and Appraisal of the Nation's Bridges to the 
Specifications for the National Bridge Inventory.

6. What does a complete application package for Preliminary Engineering 
consist of and how does the project receive funding? (Sec.  661.25)

    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe recommended that county- and State-owned 
bridges' local match for the TTFBP be at 80 percent, and that the TTFBP 
can only be the 20 percent local match to other funding. The Tribes 
stated that county and State projects shall only be eligible for 
funding given that they meet the requirements of 23 U.S.C. 202(f) and 
that the obligation of Tribal Transportation Program (TTP) funds for a 
project is supplementary to and not in lieu of the obligation of a fair 
and equitable share of funds apportioned to the State.
    The FHWA recognizes the Tribes' interest in maximizing TTFBP funds 
for BIA and Tribal TTF bridges. Up to 80 percent of the funding made 
available for PE and construction in any fiscal year is eligible for 
use on BIA and Tribally owned TTF bridges. The remaining funding in any 
fiscal year is made available for PE and construction for use on non-
BIA/non-Tribally owned TTF bridges. However, FHWA has removed the 
minimum 20 percent local funding match requirement for non-BIA/non-
Tribally owned TTF bridges because Tribal bridge set aside funds from 
the Bridge Formula Program (BFP) to carry out 23 U.S.C. 202(d) is 100 
percent for all eligible TTF bridges. The statute controls the BFP 
Tribal bridge set aside funds.

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

    The Nez Perce Tribe, Pueblo of Jemez, and the ITA support the 
existing 20 percent match requirement for non-BIA/non-Tribal bridges.
    As stated previously, FHWA has removed the minimum 20 percent local 
funding match for non-BIA/non-Tribally owned TTF bridges because the 
Tribal bridge set aside funds from the BFP to carry out 23 U.S.C. 
202(d) is 100 percent for all eligible TTF bridges. The statute 
controls the BFP Tribal bridge set aside funds.

8. How does ownership impact project selection? (Sec.  661.29)

    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe strongly disagree with removing the phrase 
``trust responsibilities'' from this section or any other parts of 
these regulations stating that the Federal Government has a trust 
responsibility to Native Americans which derives from Treaties, 
Executive orders, case law, and Federal legislation.
    The FHWA adopts the language as proposed. This section pertains 
only to priority of project selection and does not discuss the trust 
responsibility of the Federal Government.

9. What percentage of TTFBP Program funding is available for PE and 
construction? (Sec.  661.33)

    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe recommended to add a sentence at the end of 
the paragraph indicating ``If construction funding does not use 85 
percent of the funding the remaining funding may be used for PE.''
    The FHWA recognizes the need for both PE and construction. At 
various times during the fiscal year, FHWA will review the TTFBP 
funding and may shift funds between PE and construction funds to 
maximize the number of projects funded and the overall effectiveness of 
the program.

10. What percentage of TTFBP funding is available for use on BIA and 
Tribally owned TTF bridges, and non-BIA/non-Tribally owned TTF bridges? 
(Sec.  661.35)

    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe recommended funding all BIA and Tribally 
owned bridges in the queue first and then BIA and Tribally owned 
culverts. The Tribes recommended to use the remaining funds to cover 
the non-BIA and non-Tribally owned bridges.
    The FHWA recognizes the Tribes' interest in prioritizing the TTFBP 
funds for BIA and Tribal TTF bridges. Up to 80 percent of the funding 
made available for PE and construction in any fiscal year is eligible 
for use on BIA and Tribally owned TTF bridges. The remaining funding in 
any fiscal year is made available for PE and construction for use on 
non-BIA/non-Tribally owned TTF bridges.

11. What are the funding limitations on individual TTFBP project? 
(Sec.  661.37)

    In the NPRM, FHWA was considering adjusting the funding limits for 
PE in Sec.  661.37(a) and for PE and construction in Sec.  661.37(b) 
because the existing funding limits established by the 2008 final rule 
have not kept pace with increased costs in the last 15 years and 
adjustment may be necessary to allow increased flexibility. The FHWA 
specifically requested comments on whether these amounts should be 
adjusted. Several Tribes made recommendations on the new funding 
limits: the Standing Rock Sioux Tribe, Oglala Sioux Tribe, Omaha Tribe, 
Cheyenne River Sioux Tribe, Chickasaw Nation, Forest County Potawatomi 
Community, Nez Perce Tribe, Ho Chunk Nation, Jemez Pueblo, and Trinidad 
Rancheria. In addition, comments were received from the ITA, Eastern 
Region Tribes, LLC, and one anonymous comment.
    While the commenters made a number of recommendations, since the 
publication of the NPRM, FHWA has determined that the statutory 
language addresses the issue of Federal share for funds set aside from 
the BFP to carry out 23 U.S.C. 202(d). The Federal share associated 
with the funds set aside from the BFP to carry out 23 U.S.C. 202(d) is

[[Page 57081]]

100 percent. Therefore, this section has been revised to eliminate the 
funding limits for both PE and construction funds, as well as 
eliminating the 20 percent local match requirement for non-BIA/non-
Tribally owned TTF bridges.
    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe recommended a graduated percentage of 
construction cost to encompass the work needed to reach preliminary 
engineering (PE) estimated cost. Based on FHWA's experience with the 
prior TTP Bridge Program, FHWA adopted this recommendation as set forth 
in the fee scale below:
    Estimated Construction Cost:

Up to $1,000,000--Use up to 20% for PE
$1,000,000 to $5,000,000--Use up to 15%-20% for PE
$5,000,000 to $10,000,000--Use up to 10%-15% for PE
Over $10,000,000--Use up to 10% for PE

12. What happens when TTFBP funds cannot be obligated by the end of the 
fiscal year? (Sec.  661.45)

    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe recommended not to return the unobligated 
TTFBP funds to FHWA during August Redistribution unless the Tribes are 
able to participate in that program.
    The FHWA notes that the only TTFBP funds subject to August 
Redistribution are the funds from the Highway Trust Fund. Unobligated 
TTFBP funds from the General Fund will continue to be available until 
their lapsing period.

13. Can TTFBP funds be spent on Interstate, State Highway, and Toll 
Road TTF bridges? (Sec.  661.49)

    The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and 
Cheyenne River Sioux Tribe recommended to add ``as long as they are in 
the NTTFI and meet the criteria of 23 U.S.C. 202(f).''
    The FHWA declines to adopt the additional language for the reasons 
discussed in Sec.  661.17.

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

    The FHWA revised this section to reference the design standards to 
25 CFR part 170, subpart D, appendix B to be used for Sec.  661.53(a) 
and (b).

15. Other

    The Native Village of Ouzinkie has poor condition bridges that 
carry pedestrian and all-terrain vehicle (ATV) traffic and wants these 
bridges to be addressed, but they did not provide any proposed 
regulatory recommendations for doing so.
    The FHWA's TTFBP only funds TTF bridges that carry highway 
vehicular traffic.\1\ While pedestrian and ATV bridges are not eligible 
for funding under the TTFBP, FHWA encourages the commenter to pursue 
other potential surface transportation funding sources available for 
pedestrian and bicycle projects.\2\
---------------------------------------------------------------------------

    \1\ https://highways.dot.gov/federal-lands/programs-tribal/bridge/tribal-transportation-program-ttp-bridge-program-questions-answers-qas.
    \2\ https://www.fhwa.dot.gov/environment/bicycle_pedestrian/funding/index.cfm.
---------------------------------------------------------------------------

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Rulemaking 
Policies and Procedures

    The Office of Management and Budget (OMB) has not designated this 
rule a significant regulatory action under section 3(f) of Executive 
Order (E.O.) 12866. Accordingly, OMB has not reviewed it. This action 
complies with E.O.s 12866 and 13563 to improve regulation. It is 
anticipated that the economic impact of this rulemaking would be 
minimal and that the benefits would outweigh the costs. 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), 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 MAP-21, section 1118 of the FAST Act, and sections 11118, 
14004, and Division J of the BIL, and would not fundamentally alter the 
funding available for the replacement or rehabilitation of TTF bridges 
in poor condition. For these reasons, 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 would not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). The 
Unfunded Mandates Reform Act of 1995 (section 202(a)) requires agencies 
to prepare a written statement, which includes estimates of anticipated 
impacts, before proposing ``any rule that includes any Federal mandate 
that may result in the expenditure by State, local, and Tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any 1 year.'' The 
current threshold after adjustment for inflation is $177 million, using 
the most current (2022) Implicit Price Deflator for the Gross Domestic 
Product. In addition, the definition of ``Federal mandate'' in the 
Unfunded Mandates Reform Act excludes financial assistance of the type 
in which State, local, or Tribal governments have authority to adjust 
their participation in the program in accordance with changes made in 
the program by the Federal Government. The Federal-aid highway program 
permits this type of flexibility.

Executive Order 13132 (Federalism Assessment)

    The FHWA has analyzed this action in accordance with the principles 
and criteria contained in E.O. 13132. 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 action would not preempt any State law or State regulation or 
affect the States' ability to discharge traditional State governmental 
functions.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities apply to this program. 
Local entities should refer to the Catalog of Federal Domestic 
Assistance Program Number 20.205, Highway Planning and Construction, 
for further information.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal Agencies must obtain approval from 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.

[[Page 57082]]

National Environmental Policy Act

    The FHWA has analyzed this action for the purpose of the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and 
has determined that it will not have any significant effect on the 
quality of the environment and is categorically excluded under 23 CFR 
771.117(c)(20), which applies to the promulgation of rules, 
regulations, and directives. Categorically excluded actions meet the 
criteria for categorical exclusions under the Council on Environmental 
Quality regulations and under 23 CFR 771.117(a) and normally do not 
require any further NEPA approvals by FHWA. The FHWA does not 
anticipate any adverse environmental impacts from this rule; no unusual 
circumstances are present under 23 CFR 771.117(b).

Executive Order 13175 (Tribal Consultation)

    Prior to the publication of the NPRM, several appropriate meetings 
and consultations with the Tribal governments were held in 2022 about 
the TTFBP and the NPRM. The following meetings with the Tribes were 
held:
    1. Inter Tribal Council of Arizona (ITCA) Virtual Meeting, March 
10, 2022.
    2. Bureau of Indian Affairs (BIA) Alaska Provider's Conference 
Virtual Meeting, April 6, 2022.
    3. Tribal Transportation Program Coordinating Committee (TTPCC) 
Meeting in Albuquerque, New Mexico, May 17, 2022.
    4. Intertribal Transportation Association (ITA) Virtual Meeting, 
June 29, 2022.
    5. United South and Eastern Tribes (USET) Virtual Meeting, July 19, 
2022.
    6. TTPCC Meeting in Lewiston, Idaho, August 9, 2022.
    7. National Transportation in Indian Country Conference (NTICC) 
Meeting in Louisville, Kentucky, August 25, 2022.
    8. BIA Alaska Provider's Conference in Anchorage, Alaska, November 
30, 2022.
    9. ITA Meeting in Las Vegas, Nevada, December 7, 2022.
    Consistent with E.O. 13175, Consultation and Coordination with 
Indian Tribal governments, FHWA held four more Tribal consultation 
meetings during the public comment period. A listening session was held 
virtually on April 4, 2023. Three in-person meetings were held at three 
different locations: on April 20, 2023, at the Department of the 
Interior, National Indian Programs Training Center, Albuquerque, NM; on 
May 17, 2023, at the Great Northern Jerome Hill Theater, St. Paul, MN; 
and on May 18, 2023, at the Northwest Region Transportation Symposium, 
Northern Quest Resort and Casino, Airway Heights, WA. The comments 
submitted by Tribes through the docket and provided by Tribes at the 
consultation meetings noted above were considered during the 
development of this rulemaking.

Executive Order 12898 (Environmental Justice)

    The E.O. 12898 requires that each Federal Agency make achieving 
environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations. The FHWA has 
determined that this rule does not raise any environmental justice 
issues.

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 spring and fall of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

Rulemaking Summary, 5 U.S.C. 553(b)(4)

    As required by 5 U.S.C. 553(b)(4), a summary of this rule can be 
found in the Abstract section of the Department's Unified Agenda entry 
for this rulemaking at [https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2125-AF91].

List of Subjects in 23 CFR Part 661

    Bridges, Highways and roads, Indians.

    Issued under authority delegated in 49 CFR 1.81, 1.84, and 1.85.
Shailen P. Bhatt,
Administrator, Federal Highway Administration.

0
In consideration of the foregoing, FHWA revises 23 CFR part 661 as 
follows:

PART 661--TRIBAL TRANSPORTATION FACILITY BRIDGE PROGRAM (TTFBP)

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 TTFBP?
661.9 What is the total funding available for the TTFBP?
661.11 When do TTFBP funds become available?
661.13 How long are these funds available?
661.15 What are the eligible activities for TTFBP 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?
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 TTF bridge projects have to be listed on an approved TTP 
TIP?
661.33 What percentage of TTFBP funding is available for PE and 
construction?
661.35 What percentage of TTFBP funding is available for use on BIA 
and Tribally owned TTF bridges, and for non-BIA/non-Tribally owned 
TTF bridges?
661.37 What are the funding limitations on an individual TTF bridge 
project?
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 TTFBP funds?
661.45 What happens when TTFBP funds cannot be obligated by the end 
of the fiscal year?
661.47 Can routine bridge maintenance be performed with TTFBP funds?
661.49 Can TTFBP funds be spent on Interstate, State Highway, 
County, City, Township, and Toll Road TTF bridges?
661.51 Can TTFBP 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 in-service TTF bridges 
inspected?
661.57 What should be done with a BIA and Tribal bridge in poor 
condition if the Indian Tribe does not support the project?

    Authority: 23 U.S.C. 120(j) and (k), 202, and 315; 49 CFR 1.81, 
1.84, 1.85; 23 CFR part 490, subpart D.


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 Tribal 
Transportation Facility Bridge Program (TTFBP).

[[Page 57083]]

Sec.  661.3  Who must comply with this regulation?

    Tribes must comply with this regulation in applying for TTFBP funds 
for planning, design, engineering, pre-construction, construction, and 
inspection of new or replacement Tribal Transportation Facility (TTF) 
bridges classified as in poor condition, having low load capacity, or 
needing geometric improvements.


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.
    National Bridge Inventory (NBI) means an FHWA database containing 
bridge information and inspection data for all structures defined as 
highway bridges located on all public roads, on and off Federal-aid 
highways, including Tribally owned and federally owned bridges, private 
bridges that are connected to a public road on both ends of the bridge, 
temporary bridges, and bridges under construction with portions open to 
traffic, that are subject to the National Bridge Inspection Standards.
    National Tribal Transportation Facility Inventory (NTTFI) means at 
a minimum, transportation facilities that are eligible for assistance 
under the TTP as defined in 25 CFR 170.5.
    Operating rating means the maximum permissible live load to which 
the structure may be subjected for the load configuration used in the 
load rating. Allowing unlimited numbers of vehicles to use the bridge 
at operating level may shorten the life of the bridge.
    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 road means any road or street under the jurisdiction of and 
maintained by a public authority and open to public travel.
    Rehabilitation means major work required to restore the structural 
integrity of a bridge, as well as work necessary to correct major 
safety defects. FHWA Bridge Preservation Guide, Spring 2018 Edition.
    Replacement means total replacement of an existing bridge with a 
new facility constructed in the same general traffic corridor. FHWA 
Bridge Preservation Guide, Spring 2018 Edition.
    Tribal Transportation Facility (TTF) means a public highway, road, 
bridge, trail, transit system, or other approved facility that is 
located on or provides access to Tribal land and appears on the NTTFI.
    TTF bridge means a structure located on the NTTFI, 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.


Sec.  661.7  What is the TTFBP?

    The TTFBP, as established under 23 U.S.C. 202(d), is a nationwide 
priority program for improving TTF bridges classified as in poor 
condition, having low load capacity, or needing geometric improvements.


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

    The funding source and amount is specified by law, which is subject 
to change. Due to the complex nature of the funding for the TTFBP, 
please refer to the applicable statute and applicable FHWA guidance, 
which can be found on the FHWA's TTFBP website.


Sec.  661.11  When do TTFBP funds become available?

    TTFBP 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?

    TTFBP funds for each fiscal year are available for obligation for 
the year authorized plus 3 years (a total of 4 years).


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

    TTFBP funds can be used:
    (a) To carry out any planning (including safety inspection of in-
service bridges), design, engineering, preconstruction, construction, 
and construction inspection of new or replacement TTF bridges;
    (b) To replace, rehabilitate, seismically retrofit, paint, apply 
calcium magnesium acetate, sodium acetate/formate, or other 
environmentally acceptable, minimally corrosive anti-icing and deicing 
composition;
    (c) To implement countermeasures, including scour countermeasures, 
for TTF bridges classified as scour critical or in poor condition, 
having a low load capacity, or needing geometric improvements, 
including multiple-pipe culverts; or
    (d) To demolish the old bridge if a bridge is replaced under the 
TTFBP.


Sec.  661.17  What are the criteria for bridge eligibility?

    (a) For bridge replacement or rehabilitation, TTF bridges are 
required to meet the following:
    (1) Must meet the definition of a TTF bridge;
    (2) Be classified as a Tribal transportation facility;
    (3) Be classified as in poor condition, have low load capacity, or 
need highway geometric improvements;
    (4) Be recorded in the NBI maintained by FHWA;
    (b) For new bridge construction, TTF bridges are required to meet 
the following:
    (1) Be classified as a Tribal transportation facility;
    (2) Be a public bridge that meets the definition of a TTF bridge 
and recorded in the NBI after project completion.


Sec.  661.19  When is a bridge eligible for replacement?

    To be eligible for replacement, a TTF bridge must be in poor 
condition, have low load capacity, or need highway geometric 
improvements.


Sec.  661.21  When is a bridge eligible for rehabilitation?

    To be eligible for rehabilitation, a TTF bridge must be in poor or 
fair condition,

[[Page 57084]]

have low load capacity, or need highway geometric improvements.


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

    (a) All projects will be ranked and prioritized for funding after a 
completed application package is received and accepted by FHWA. At that 
time, the project will be acknowledged as either BIA and Tribally 
owned, or non-BIA/non-Tribally 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 condition with bridges in poor condition having 
precedence over bridges in fair condition, and bridges in fair 
condition having precedence over bridges in good condition;
    (2) Operating rating for bridges in poor condition with lower 
operating rating having precedence over higher operating rating;
    (3) Bridges on school bus routes;
    (4) New bridge construction;
    (5) Bypass detour length;
    (6) Annual average daily traffic; and
    (7) Annual average daily truck traffic.
    (c) Queues will carryover from fiscal year to fiscal year as made 
necessary by the amount of annual funding made available.
    (d) TTF bridges will be classified as good, fair, or poor based on 
the following criteria:
    (1) Good: When the lowest rating of the 3 NBI items for a bridge 
(Deck Condition Rating, Superstructure Condition Rating, Substructure 
Condition Rating) is 7, 8, or 9, the bridge will be classified as good. 
When the rating of the NBI item for a culvert (Culvert Condition 
Rating) is 7, 8, or 9, the culvert will be classified as good.
    (2) Fair: When the lowest rating of the three NBI items for a 
bridge is 5 or 6, the bridge will be classified as fair. When the 
rating of the NBI item for a culvert is 5 or 6, the culvert will be 
classified as fair.
    (3) Poor: When the lowest rating of the three NBI items for a 
bridge is 4, 3, 2, 1, or 0, the bridge will be classified as poor. When 
the rating of the NBI item for a culvert is 4, 3, 2, 1, or 0, the 
culvert will be classified as poor. A poor condition bridge with a 
lower condition rating will have precedence over a poor condition 
bridge with a higher condition rating.


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:
    (1) The certification checklist;
    (2) Tribal Transportation Program (TTP) transportation improvement 
program (TIP);
    (3) Project scope of work;
    (4) Detailed cost for PE;
    (5) NBI data; and
    (6) An acknowledgment by the Tribe of the project specific funding 
requirements and that any excess funds will be returned to FHWA for 
further distribution.
    (b) For non-BIA/non-Tribally owned TTF bridges, the application 
package must also include a Tribal resolution supporting the project.
    (c) Incomplete application packages will be disapproved and 
returned for revision and resubmission along with an explanation 
providing the reason for disapproval.
    (d) The TTF bridge projects for PE will be placed in the queue and 
determined as eligible for funding after receipt by FHWA of a complete 
application package.
    (e) Funding for the approved eligible projects on the queues will 
be made available to the Tribes, under a TTP Program agreement between 
FHWA and a Tribal government, 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:
    (1) A copy of the approved PS&E;
    (2) The certification checklist;
    (3) NBI data;
    (4) The TTP TIP;
    (5) All environmental and archeological clearances and complete 
grants of public rights-of-way that must be acquired prior to submittal 
of the construction application package; and
    (6) An acknowledgment by the Tribe of the project specific funding 
requirements and that any excess funds will be returned to FHWA for 
further distribution.
    (b) For non-BIA/non-Tribally owned TTF bridges, the application 
package must also include a copy of a letter from the bridge's owner 
approving the project and its PS&E and a Tribal resolution supporting 
the project.
    (c) Incomplete application packages will be disapproved and 
returned for revision and resubmission along with an explanation 
providing the reason for disapproval.
    (d) The TTF bridge projects for construction will be placed in the 
queue and determined as eligible for funding after receipt by FHWA of a 
complete application package.
    (e) Funding for the approved eligible projects in the queues will 
be made available to the Tribes, under a TTP Program Agreement between 
FHWA and a Tribal government, or the Secretary of the Interior upon 
availability of program funding at FHWA.


Sec.  661.29  How does ownership impact project selection?

    (a) Primary consideration will be given to eligible projects on BIA 
and Tribally owned TTF bridges. A smaller percentage of available funds 
will be set aside for non-BIA/non-Tribally owned TTF bridges, since 
States and counties have access to Federal-aid and other funding to 
design, replace, and rehabilitate their bridges.
    (b) The program policy will be to maximize the number of TTF 
bridges participating in the TTFBP in a given fiscal year regardless of 
ownership.


Sec.  661.31  Do TTF bridge projects have to be listed on an approved 
TTP TIP?

    Yes. All TTF bridge projects must be listed on an approved FHWA TTP 
TIP. TTF bridge projects included in the TTP TIP that are not fiscally 
constrained may still be included as a list of projects dependent upon 
the availability of additional resources, also known as an 
``illustrative list''.


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

    (a) Up to 15 percent of the funding made available in any fiscal 
year will be eligible for PE. The remaining funding in any fiscal year 
will be available for construction.
    (b) At various times during the fiscal year, FHWA will review the 
TTFBP funding and may shift funds between PE and construction funds to 
maximize the number of projects funded and the overall effectiveness of 
the program.


Sec.  661.35  What percentage of TTFBP funding is available for use on 
BIA and Tribally owned TTF bridges, and for non-BIA/non-Tribally owned 
TTF 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 TTF bridges. The remaining funding in any fiscal year 
will be made available for PE and construction for use on non-BIA/non-
Tribally owned TTF 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/non-Tribally owned bridge projects to maximize the 
number of

[[Page 57085]]

projects funded and the overall effectiveness of the program.


Sec.  661.37  What are the funding limitations on an individual TTF 
bridge project?

    The following funding provisions apply in administration of the 
TTFBP:
    (a) There are no funding limitations on an individual TTF bridge 
application, but the PE estimated cost will be based on the following 
fee scale:
    Estimated Construction Cost:

Up to $1,000,000--Use up to 20% for PE
$1,000,000 to $5,000,000--Use up to 15%-20% for PE
$5,000,000 to $10,000,000--Use up to 10%-15% for PE
Over $10,000,000--Use up to 10% for PE

    (b) Requests for additional funds for PE or construction 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 TTFBP funds for cost overruns on a 
specific bridge project must be submitted to Bureau of Indian Affairs 
Division of Transportation (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 and BIADOT, 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 TTP 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 
TTF bridge projects.


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

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


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

    The TTFBP funds from the Highway Trust Fund (HTF) 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 FHWA 
receives and accepts a formal request for the funds from BIA, which 
includes a justification for the amounts requested and the reason for 
the failure of the prior year obligation.


Sec.  661.47  Can routine bridge maintenance be performed with TTFBP 
funds?

    No. Routine bridge maintenance repairs, e.g., guard rail repair, 
repair of traffic control devices, striping, cleaning scuppers, deck 
sweeping, snow and debris removal, etc., are not eligible uses of TTFBP 
funding. The U.S. Department of the Interior's annual allocation for 
maintenance as well as TTP construction funds are eligible funding 
sources for routine bridge maintenance.


Sec.  661.49  Can TTFBP funds be spent on Interstate, State Highway, 
County, City, Township, and Toll Road TTF bridges?

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


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

    Yes, costs associated with approach roadway work, as defined in 
Sec.  661.5 are eligible. 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 TTFBP funds.


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

    (a) New and replacement. New and replacement structures 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.
    (b) Rehabilitation. Bridges to be rehabilitated, at a minimum, 
should conform to the standards referenced in 25 CFR part 170, subpart 
D, appendix B.


Sec.  661.55  How are BIA and Tribally owned in-service TTF bridges 
inspected?

    The BIA and Tribally owned in-service TTF bridges are inspected in 
accordance with 25 CFR 170.513 through 170.514.


Sec.  661.57  What should be done with a BIA and Tribal bridge in poor 
condition if the Indian Tribe does not support the project?

    The restrictions set forth in 25 CFR 170.114(a)(1) shall apply.

[FR Doc. 2024-14933 Filed 7-11-24; 8:45 am]
BILLING CODE 4910-22-P