[Federal Register Volume 72, Number 107 (Tuesday, June 5, 2007)]
[Proposed Rules]
[Pages 31013-31021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9869]


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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: Notice of proposed rulemaking (NPRM); request for comments.

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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 changes to the Indian Reservation Road 
Bridge Program (IRRBP). It amends the existing IRRBP by establishing 
new policies and provisions. 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. In accordance with these changes, the FHWA, with input 
and recommendations from the Bureau of Indian Affairs (BIA) and the 
Indian Reservation Roads Coordinating Committee (IRRCC), is proposing 
funding distribution procedures for BIA owned and non-BIA owned IRR 
bridge projects. The proposed changes allow funding for preliminary 
engineering (PE), construction engineering (CE), and construction for 
the replacement or rehabilitation of structurally deficient or 
functionally obsolete IRR bridges.

DATES: Comments must be received on or before August 6, 2007. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590, or submit electronically at http://dms.dot.gov/submit or fax comments to (202) 493-2251.
    Alternatively, comments may be submitted to the Federal eRulemaking 
portal at http://www.regulations.gov. All comments should include the 
docket number that appears in the heading of this document. All 
comments received will be available for examination and copying at the 
above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed, stamped postcard or you may 
print the acknowledgment page that appears after submitting comments 
electronically. Anyone is able to search the electronic form of all 
comments in any of our dockets by the name of the individual submitting 
the comment (or signing the comment, if submitted on behalf of an 
association, business, or labor union). You may review DOT's complete 
Privacy Act Statement in the Federal Register published on April 11, 
2000 (Volume 65, Number 70, Pages 19477-78) or you may visit http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Sparrow, Federal Lands 
Highway, (202) 366-9483; or Ms. Vivian Philbin, Federal Lands Highway 
Counsel, (720) 963-3445; Federal Highway Administration, 400 Seventh 
Street, SW., Washington, DC 20590-0001. Office hours are from 7:45 a.m. 
to

[[Page 31014]]

4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    You may submit or retrieve comments online through the Document 
Management System (DMS) at: http://dms.dot.gov/submit. It is available 
24 hours each day, 365 days each year. Please follow the instructions 
online for more information and help.
    An electronic copy of this document may also be downloaded by 
accessing the Office of the Federal Register's home page at: http://www.archives.gov and the Government Printing Office's Web page at: 
http://www.access.gpo.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. 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 in section 
1119 of SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144).
    Section 1119 of 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, CE, and construction to replace or rehabilitate 
structurally deficient or functionally obsolete IRR bridges. Pursuant 
to these new statutory requirements, the FHWA developed proposed 
amendments to the existing IRRBP regulation. These amendments were 
distributed to the IRRCC for its review and comment prior to this 
publication. 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 a primary and alternate Tribal representative from each of 
the 12 BIA Regions, along with 2 non-voting Federal representatives 
(one each from BIA and FHWA). The proposed changes were discussed at 
several IRRCC meetings and in detail with the IRRCC Funding Workgroup.
    The following information highlights the major issues in the 
discussion at several IRRCC meetings:
    1. First Come, First Serve Basis--This is the present funding 
methodology of the IRRBP. The IRRCC's position is that this method only 
works if there are sufficient funds. The IRRCC recommends using the 
scoring matrix method similar to the IRR High Priority Project (HPP) 
program in prioritizing the applications for bridge funding as an 
alternate method. Although the IRRCC believes this method would provide 
IRRBP funds to the project that has been rated as having the greatest 
need, the FHWA believes that its current practice has worked well in 
equitably addressing bridge rehabilitation and replacement projects in 
the past.
    2. PE and Construction Costs--The IRRCC recommends that the set-
aside for PE funds should be up to 15 percent of the annual IRRBP 
allocation. It further recommends that the cost contribution for BIA 
owned and non-BIA owned IRR bridges should be up to $150,000 for each 
project. The FHWA agrees with this recommendation, and proposes to make 
these changes.
    For construction, the IRRCC recommends that the funding ceiling for 
non-BIA owned bridge projects should be retained at $1,500,000 per 
project to meet the rising cost of construction. After reviewing the 
regulations and the past history and project size of non-BIA owned 
bridge projects funded under this program, the FHWA proposes to limit 
the funding for those construction projects to $1,000,000 in order to 
maximize the number of bridge projects funded.
    3. The use of IRR Construction Funds on IRRBP Projects--The IRRCC 
requests a clear explanation as to how a Tribe may reimburse its IRR 
construction funds if said funds are used to finance IRRBP projects in 
advance of receipt of IRRBP funds. This has been included in the 
proposed changes to the regulation.
    4. Removal of historic bridges--The FHWA proposes to clarify that 
existing IRR bridges replaced under the IRRBP must be taken completely 
out of service and removed from the IRR inventory. This is done so that 
in the future only the new bridge will be eligible for IRRBP fund 
consideration. However, the IRRCC requests and the FHWA agrees to 
propose to allow a Tribe the ability to request a special exemption, 
from BIADOT, regarding the ``removal from service'' requirement if the 
bridge is considered historic.

Section-by-Section Discussion of the Proposed Amendments

    Descriptions of the regulatory changes proposed in this part are 
set forth below. All members of the public who are affected by the 
amendments to the regulation are encouraged to submit comments in 
writing. Comments from interested Tribal members are particularly 
requested. We have made several minor grammatical changes, such as 
shortening sentences for clarity, which will not change the meaning or 
intent of the regulation. These minor changes are not addressed in the 
Section-by-Section discussion.

Who must comply with this regulation? (661.3)

    The requirement for a set of plans, specifications, and estimates 
from a public authority has been moved to 661.27 for clarification 
purposes. We propose to include preliminary engineering (PE) as an 
eligible activity, as established in the section 1119(g) of SAFETEA-LU.

 What definitions apply to this regulation? (661.5)

    We propose to add the following definitions in this section:

Approach Roadway--the FHWA proposes to add this definition in order to 
clarify what is eligible in section 661.51.
Life Cycle Cost Analysis (LCCA)--the FHWA proposes to add this 
definition in order to clarify eligibility for rehabilitation in 
section 661.21.
National Bridge Inventory (NBI)--the FHWA proposes to add this 
definition in order to clarify eligibility requirements in section 
661.17.
Plans, Specifications, and Estimate (PS&E)--the FHWA proposes to add 
this definition in order to clarify what is required for a complete 
application package as set forth in section 661.27.
Preliminary Engineering--the FHWA proposes to add this definition 
because this is now an eligible activity for this program as set forth 
in section 1119(g) of SAFETEA-LU.
Structure Inventory and Appraisal (SI&A)--the FHWA proposes to add 
definition in order to clarify what is required for a complete 
application package as set forth in sections 661.25 and 661.27.

What is the IRRBP? (661.7)

    This section has been modified to delete obsolete language about 
the annual funding of the IRRBP program. Section 1119(g) of SAFETEA-LU 
changed the annual funding amount provided to this program. However, 
the FHWA proposes to delete mention of specific funding amounts in this 
section, and has instead stated the total funding available in section 
661.9.

[[Page 31015]]

What is the total funding available for the IRRBP? (661.9)

    The FHWA proposes to modify this section to reflect the most recent 
funding amounts authorized by section 1119(g) of SAFETEA-LU.

What are the eligible activities for IRRBP funds? (661.15)

    The FHWA proposes to consolidate the eligibility activities for 
IRRBP funds into one section. This section also proposes to add 
preliminary engineering and the demolition of old bridges as new 
eligible items.

What are the criteria for bridge eligibility? (661.17)

    The FHWA proposes to modify this section to eliminate physical 
deterioration as a criteria for eligibility for this program. This term 
does not appear in section 1119(g) of SAFETEA-LU and as such we are 
proposing to delete it from the regulation.

When is a bridge eligible for replacement? (661.19)

    The FHWA proposes to clarify in this section that existing IRR 
bridges replaced under the IRRBP must be taken completely out of 
service and removed from the IRR inventory. This is done so that in the 
future, only the new bridge will be eligible for IRRBP fund 
consideration. However, the IRRCC requests and the FHWA agrees to 
propose to allow a Tribe the ability to request a special exemption, 
from BIADOT, regarding the ``removal from service'' requirement if the 
bridge is considered historic.

When is a bridge eligible for rehabilitation? (661.21)

    The FHWA proposes to remove the word ``would'' from the criteria to 
clarify eligibility for bridge replacement.

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

    This section explains the priority process for both BIA and non-BIA 
owned bridges as well as the separate queues for both construction and 
preliminary engineering within both categories of bridges.

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

    This is a new section that we propose to include in the regulation, 
which describes the requirements for submitting a complete application 
package for PE. The complete application packages would be placed in 
the queues (BIA or non-BIA owned bridges) after receipt by FHWA. 
Incomplete application packages would be disapproved and returned for 
revision and resubmission along with a notation providing the reason 
for disapproval.
    Funding for the approved eligible projects on the queues will be 
made available to the Tribes or the Secretary of the Interior upon 
availability of program funding at FHWA.

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

    We propose to include in this section that all complete application 
packages would be placed in the queues (BIA or non-BIA owned bridges). 
All environmental and archeological clearances and complete grants of 
public rights-of-way must be acquired prior to submittal of the 
construction application package. Incomplete application packages would 
be disapproved and returned for revision and resubmission along with a 
notation providing the reason for disapproval. Funding for the approved 
eligible projects on the queues will be made available to the Tribes or 
the Secretary of the Interior upon availability of program funding at 
FHWA.

How does ownership impact project selection? (661.29)

    The FHWA proposes to maximize the use of IRRBP funds for BIA owned 
bridges. 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 
owned IRR bridges. The remaining 20 percent of IRRBP funding in any 
fiscal year will be made available for PE and construction for use on 
non-BIA owned IRR bridges. Each fiscal year the FHWA will review the 
projects awaiting funding and may shift funds between BIA owned and 
non-BIA owned bridge projects so as to maximize the number of projects 
funded and the overall effectiveness of the program.

Do IRRBP projects have to be listed on an approved IRR TIP? (661.31)

    The FHWA proposes to change the language of this section to 
properly identify which Transportation Improvement Program (TIP) is 
used for the approved bridge projects.

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

    FHWA proposes to include this section in order to identify the 
amount of funding that will be made available for the new eligible item 
of preliminary engineering. The amount recommended was developed in 
consultation with the IRRCC and represents the average costs of 
preliminary engineering on bridge projects. The remaining funding is 
made available for construction.

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

    The FHWA proposes to utilize the same funding distribution, i.e., 
up to 80 percent of the available annual funds, for BIA owned bridge 
projects with the remaining funds utilized for non-BIA owned bridges. 
After consultation with the IRRCC, FHWA is proposing that the FHWA have 
the ability to review the queue of projects awaiting funding at various 
times during the fiscal year, and shift funds between BIA owned and 
non-BIA owned bridge projects in order to maximize the number of 
projects funded.

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

    The FHWA proposes to reduce the funding ceiling for construction on 
non-BIA owned bridge projects to $1,000,000. The FHWA reviewed the 
history of the IRRBP and determined that since 1998, over 100 non-BIA 
owned bridge projects have been funded with this program. For these 
non-BIA owned bridge projects, the average project size was less than 
$600,000 and more than 75 percent were funded at a level below the 
proposed $1,000,000 threshold. In addition, other sources of funds are 
available for non-BIA owned bridge projects.
    Additionally, FHWA proposes to limit the amount of funding 
available for preliminary engineering to $150,000 per project. This 
recommendation is based on the historical size of the bridge projects 
previously funded under this program and assumes a typical PE cost of 
around 15 to 20 percent of a project's construction cost.
    The IRRCC recommends, and FHWA is proposing, a revision that allows 
a Tribe to request additional funds above the referenced thresholds by 
submitting a written justification for consideration to FHWA. The 
approval of the requests would be considered on a case-by-case basis.

How are project cost overruns funded? (661.39)

    The FHWA proposes that if a request for additional funding is 
approved by the FHWA, the request would be placed at the top of the 
appropriate queue. Because an ongoing construction project

[[Page 31016]]

would be costly to stop and then remobilize, a request to fund a 
contract modification will have a higher priority than a request for 
additional funding for a project award. Additional funds could also be 
made available from a Tribe's existing IRR Program share.

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

    The FHWA proposes to change the phrasing of this section for 
clarification purposes and to identify that 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.

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

    In this new section we propose that IRRBP funds provided to a 
project and not obligated at the end of the fiscal year must be 
returned to the FHWA. The funds will be re-allocated to BIA the 
following fiscal year and would require a justification for the failure 
to obligate in the previous year.

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

    The FHWA proposes to add this section in order to clarify that 
bridges on all types of routes that are included in the IRR Inventory 
are eligible for funding under this program.

Can IRRBP funds be used for the approach roadway to a bridge? (661.51)

    The FHWA proposes to include the cost associated with the approach 
roadway work to be eligible for IRRBP funds. The limit of approach 
roadway work would be limited to a nominal amount of work, sufficient 
to connect the new facility to the existing roadway or to return the 
gradeline to an attainable touchdown point in accordance with good 
design practice. Long approach fills, causeways, connecting roadways, 
interchanges, ramps, and other extensive structures, when constructed 
beyond an attainable touchdown point, would not be eligible for IRRBP 
funds.

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

    The FHWA proposes to include this new section in order to clarify 
the design standards that must be met in the design of bridges being 
funded under this program.

How are BIA and Tribal owned bridges inspected? (661.55)

    The FHWA proposes to include this new section in order to clarify 
the procedures that must be followed when formal bridge inspections are 
carried out.

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

    The FHWA proposes to include this new section in order to clarify 
the actions that should be taken when a deficient bridge is identified 
and not scheduled for improvement.

Distribution Table

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

------------------------------------------------------------------------
                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.
------------------------------------------------------------------------

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

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, the 
FHWA will also continue to file relevant information in the docket as 
it becomes available after the comment period closing date, and 
interested persons should continue to examine the docket for new 
material. A final rule may be published at any time after close of the 
comment period.

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

    The FHWA has determined preliminarily 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. These proposed changes 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

[[Page 31017]]

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 proposed 
action on small entities and has determined that the proposed action 
would not have a significant economic impact on a substantial number of 
small entities. This proposed action would amend 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 proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This proposed 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 proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, and the 
FHWA has determined preliminarily that this proposed 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 this proposed 
regulation and provide the IRRCC with the opportunity to ask questions 
and make recommendations. 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 a primary and alternate Tribal 
representative 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. This regulation reflects the 
results of the IRRCC input. All aspects of the regulation were reviewed 
by the IRRCC and the major items of discussion are listed in the 
background section of this regulation.

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. Accordingly, the 
FHWA solicits comments on this issue.

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 
proposal 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, 
eliminate 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 proposed 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 proposed rule under Executive Order 
12630, Governmental Actions and Interface with Constitutionally 
Protected Property Rights. The FHWA does not anticipate that this 
proposed 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 proposed action for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has 
determined that this proposed 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.


[[Page 31018]]


    Issued on: May 15, 2007.
J. Richard Capka,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to amend 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?
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 
owned IRR bridges and non-BIA owned IRR bridges?
661.37 What are the funding limitations on individual IRRBP 
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) bridge means a bridge that has been 
restricted to light vehicles only, is closed, or

[[Page 31019]]

requires immediate rehabilitation to remain open.
    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.


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 Indian Reservation Road that is included in 
the IRR inventory;
    (3) Be unsafe because of structural deficiencies or functional 
obsolescence; 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 have a sufficiency 
rating less than 50. If bridge replacement occurs under this program, 
it is required that the original bridge 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 have a sufficiency 
rating less than or equal to 80 and greater than 50. The work eligible 
for a bridge rehabilitation project includes the activities required to 
improve the sufficiency rating to 80 or greater. A bridge eligible for 
rehabilitation is eligible for replacement if a life cycle cost 
analysis 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 or non-BIA owned and 
placed in either a PE or construction queue, listed by date received. 
These queues form the basis for prioritization for funding. After the 
IRRBP funding for the FY is used up, a queue for the following FY would 
be established.
    (b) In those cases where application packages have arrived at the 
same time, the packages 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.


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 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

[[Page 31020]]

available to the tribes 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 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 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 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 
owned IRR bridges. The remaining 20 percent of funding in any fiscal 
year will be made available for PE and construction for use on non-BIA 
owned IRR bridges.
    (b) At various time during the fiscal year, FHWA will review the 
projects awaiting funding and may shift funds between BIA 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 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 
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 the proper justification to FHWA for 
consideration. The requests 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 IRR bridge 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 on a project that has 
been approved for funding and placed on a 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, cost 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 A and 23 CFR part 
625.
    (b) Rehabilitation--Bridges to be rehabilitated, as a minimum, 
should conform to the standards of 23 CFR 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 Tribal owned IRR bridges are inspected in accordance with 
25 CFR 170.504-507.

[[Page 31021]]

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 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 replacement of the 
bridge. For safety of the motoring public, if the tribe decides not to 
pursue the replacement of the bridge, the BIA shall work with the tribe 
to close the bridge, demolish the bridge and remove it from the IRR 
inventory in accordance with 25 CFR part 170 (170.813).

 [FR Doc. E7-9869 Filed 6-4-07; 8:45 am]
BILLING CODE 4910-22-P