Indian Reservation Road Bridge Program

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 661

[FHWA Docket No. FHWA-98-4743]

RIN 2125-AE57

Indian Reservation Road Bridge Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Interim final rule.

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SUMMARY: Section 1115 of the Transportation Equity Act for the 21st

Century establishes a nationwide priority program for improving

deficient Indian reservation road (IRR) bridges and reserves $13

million of IRR funds per year to replace and rehabilitate bridges that

are in poor condition. The FHWA, Federal Lands Highway (FLH), and the

Bureau of Indian Affairs, Division of Transportation (BIADOT), intend

to implement the IRR bridge program (IRRBP) to promptly address the

deficient IRR bridges. Toward that end, the FLH and the BIADOT, in

consultation with Indian tribal governments (ITG)s and other public

commenters, have developed interim project selection/fund allocation

procedures for uniform application of the legislation. In this

document, the FHWA is announcing interim project selection/fund

allocation procedures for the IRRBP.

DATES: This rule is effective on July 19, 1999.

ADDRESSES: Your signed, written comments must refer to the docket

number appearing at the top of this document and you must submit your

comments to the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400

Seventh Street, SW., Washington, DC 20590-0001. All comments will be

available for examination at the above address between 9 a.m. and 5

p.m., e.t., Monday through Friday, except Federal holidays. Those

desiring notification of receipt of comments must include a self-

addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Wade F. Casey, Federal Lands

Highway, HFPD-9, (202) 366-9486; or Ms. Grace Reidy, Office of Chief

Counsel, HCC-32, (202) 366-6226; Federal Highway Administration, 400

Seventh Street SW., Washington, DC 20590. Office hours are from 7:45

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

holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

Internet users can access all comments received by the U.S. DOT

Dockets, Room PL-401, by using the universal resource locator (URL):

http://dms.dot.gov. 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 be downloaded by using a

modem and suitable communications software from the Government Printing

Office's Electronic Bulletin Board Service at (202) 512-1661. Internet

users may reach the Federal Register's home page at: http://

www.nara.gov/fedreg and the Government Printing Office's database at:

http://www.access.gpo.gov/nara.

Background

Section 1115 of TEA-21, amended title 23, U.S.C., to require the

Secretary to establish a nationwide priority program for improving

deficient IRR bridges. Of the amounts authorized to be appropriated for

IRRs for each fiscal year beginning with FY1998 and continuing through

FY2003, section 1115 requires the Secretary, in cooperation with the

Secretary of the Interior, to reserve not less than $13 million for

projects to replace, rehabilitate, seismically retrofit, paint, apply

calcium magnesium acetate to, apply sodium acetate/formate or other

environmentally acceptable, minimally corrosive anti-icing and de-icing

compositions, or install scour countermeasures for deficient IRR

bridges, including multiple-pipe culverts.

The statute provides that, to be eligible to receive funding under

the Nationwide Priority Bridge Program, a bridge must: (i) Have an

opening of 20 feet or more; (ii) be on an IRR; (iii) be unsafe because

of structural deficiencies, physical deterioration, or functional

obsolescence; and (iv) be recorded in the national bridge inventory

(NBI) administered by the Secretary under 23 U.S.C. 144(b). The statute

further provides that the funds to carry out IRR bridge projects shall

be made available only on approval of plans, specifications, and

estimates (PS&E) by the Secretary.

In order to implement the IRRBP established in section 1115 of the

Transportation Equity Act for the 21st Century (TEA-21), Pub. L. 105-

178, 112 Stat. 107, codified at 23 U.S.C. 202(d)(4)(A), and in order to

promptly address the deficient IRR bridges, the FHWA and the BIADOT, in

consultation with Indian tribal governments (ITG)s and other interested

parties, have developed project selection/fund allocation procedures

which will be incorporated in the Code of Federal Regulations (CFR) as

an interim final rule.

Comments Received on the IRRBP

The FHWA solicited comments through informal meetings with tribal

representatives in early December, 1998. A two page summary requesting

comment on interim guidance was provided to the tribal representatives

and also sent out to tribes not in attendance at those meetings. The

two page summary was forwarded via the tribal local technical

assistance program centers and the BIA area offices to Indian tribal

governments( ITG)s. Following this, the FHWA published a notice in the

Federal Register on February 12, 1999, requesting comments on the

project selection/fund allocation procedures being considered for the

IRRBP. The notice provided for a 30-day public comment period ending

March 15, 1999. Comments were received from five ITGs, seven Bureau of

Indian Affairs (BIA) offices, one county, and one State Department of

Transportation. The FHWA considered all comments

[[Page 38566]]

received in developing project selection/fund allocation procedures

that are set forth in this notice as interim final rules for the IRRBP.

While FHWA is issuing these interim final rules to make funds

available as soon as possible this fiscal year, we welcome any comments

on them. As discussed subsequently in the ``RULEMAKING ANALYSES''

portion of this preamble, there exists good cause in this instance for

adopting interim final rules to ensure that funds may be readily

dispersed under the IRRBP. We emphasize that the rule adopted here will

be ``interim'' in nature. Prior to issuance of the final rule, the FHWA

will invite and actively consider comments introduced concerning this

action and will assess how the IRRBP is working, including the fund

allocation process based on experience with these rules. As the FHWA

gathers more experience and feedback with the project selection/fund

allocation process under the interim final rules, the FHWA will revisit

the funding allocation process and propose appropriate changes as

necessary to insure the operational effectiveness of the IRRBP. The

FHWA intends to fully utilize IRRBP funds and to continually monitor

the performance of the program to insure that all IRRBP funds are fully

utilized. The funding allocation procedures will be influenced by our

experience under these interim final rules.

Comments introduced in response to general issues concerning the

IRRBP raised in the prior notice are addressed in the Section-by-

Section Analysis, that follows.

Section-by-Section Analysis

1. What is the Total Funding Available for the IRR Bridge Program?

(Sec. 661.15)

The majority of commenters made no remark on this issue. Three

commenters indicated that they mostly agree, generally agree or that no

comment was necessary.

FHWA Position: Total funding available for the IRR Bridge Program

remains unchanged from that set forth in the prior notice since funding

is that specifically prescribed by statute. The statute provides a

total program funding of not less than $13 million for each fiscal

year.

2. When Will These Funds Become Available? (Sec. 661.17)

The majority of commenters made no remark on this issue. Two

commenters indicated that they mostly agree or generally agree.

FHWA Position: The statute states that these funds become available

on October 1 of each fiscal year.

3. When Does an Eligible Project Receive Funding? (Sec. 661.19)

The majority of commenters made no remark on this issue. Two

commenters indicated that they mostly agree or generally agree.

FHWA Position: The statute provides that these funds are provided

after the Secretary of Transportation approves a completed PS&E.

4. How Long Will These Funds be Available? (Sec. 661.21)

The majority of commenters made no remark on this issue. Three

commenters indicated that they mostly agree, generally agree or that no

comment was necessary.

FHWA Position: The statute provides that the funds for each fiscal

year are available for the year authorized plus three years (a total of

four years).

5. What Can These IRR Bridge Funds be Used for? (Sec. 661.23)

The majority of commenters made no remark on this issue. Three

commenters indicated that they mostly agree, generally agree or that no

comment was necessary.

FHWA Position: The statute provides that these funds can be used to

replace, rehabilitate, seismically retrofit, paint, apply calcium

magnesium acetate to, apply sodium acetate/formate or other

environmentally acceptable, minimally corrosive anti-icing and deicing

compositions, or install scour countermeasures for deficient IRR

bridges, including multiple pipe culverts.

6. Which Bridges are Eligible? (Sec. 661.25)

The majority of commenters made no remark on this issue. Five

commenters indicated that they mostly agree, generally agree, agree or

that no comment was necessary regarding including the provision that if

a bridge has been rehabilitated or replaced in the last 10 years, its

eligibility would be limited to seismic retrofit or installation of

scour countermeasures.

FHWA Position: We modified our position announced in the prior

notice that any bridges constructed within the last ten years be

excluded from the program. This position is consistent with FHWA

policy. It reads as follows. The statute provides that to be eligible

to receive funding, a bridge must: (i) have an opening of 20 feet or

more; (ii) be on an IRR; (iii) be unsafe because of structural

deficiencies, physical deterioration or functional obsolescence; and

(iv) be recorded in the NBI maintained by the FHWA. In view of the

limited availability of funds, and under 23 U.S.C. 204(a), recognition

of the need for all Federal roads to be treated under uniform policies

that apply to Federal-aid highways, if a bridge has been constructed,

rehabilitated or replaced in the last 10 years, its eligibility would

be limited to seismic retrofit or installation of scour

countermeasures.

7. When is a Bridge Eligible for Replacement? (Sec. 661.27)

The majority of commenters made no remark on this issue. Four

commenters indicated that they generally agree or agree with the

eligibility requirements for bridge replacement.

FHWA Position: As discussed in the previous notice, given that 23

U.S.C. 204(a) recognizes the need for all Federal roads to be treated

under uniform policies that apply to Federal-aid highways, to be

eligible for replacement, the bridge must be considered deficient for

reasons of structural deficiency or functional obsolescence. The bridge

also must have a sufficiency rating of less than 50 to be eligible for

replacement.

The BIA Navajo Area Office felt that the procedures should include

a provision for replacement of deficient bridges which otherwise would

be only eligible for rehabilitation, in cases where a section of

roadway is reconstructed to meet current roadway standards.

FHWA Response: The proposed procedures allow for a deficient

bridge, which is eligible for rehabilitation, to be replaced if the

total life cycle costs for rehabilitation exceed the replacement costs.

Hence, when a bridge is eligible for replacement it would be upgraded

to meet current standards.

Another commenter, the Eastern Band of Cherokee Indians, wanted a

definition for functional obsolescence.

FHWA Response: A functional obsolete bridge is one 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. We will include this definition in the rules at

Sec. 661.5.

8. When is a Bridge Eligible for Rehabilitation? (Sec. 661.29)

The majority of commenters generally agree with the eligibility

requirements for bridge rehabilitation.

FHWA Position: As discussed in the prior notice, for reasons

corresponding

[[Page 38567]]

to those addressed in item 7 concerning replacement eligibility, to be

eligible for rehabilitation, a bridge must be considered deficient for

reasons of structural deficiency or functional obsolescence. Also, a

bridge must have a sufficiency rating of less than or equal to 80 to be

eligible for rehabilitation. A bridge would be eligible for replacement

if the total life cycle cost for bridge rehabilitation exceeds the

costs to replace.

The BIA Phoenix Area Office commented that the IRRBP should only

address bridges with sufficiency ratings (SR) under 50 at this time.

FHWA Response: The IRRBP was established to reduce the number of

deficient IRR bridges. In addition to bridges with SR less than 50, the

IRRBP would include IRR bridges having a sufficiency rating of 80 or

less and having a status of either structurally deficient (SD) or

functionally obsolete (FO), assuming that the bridge meets the other

eligibility requirements of the IRRBP.

9. How Does Ownership Impact Project Selection? (Sec. 661.31)

The majority of commenters made no remark on this issue.

FHWA Position: As discussed in the prior notice, since the Federal

government has both a trust responsibility and owns the BIA bridges on

Indian reservations, primary consideration would be given to funding

construction projects for deficient BIA owned IRR bridges. We emphasize

that consideration could also be given to the funding of construction

projects for the deficient non-BIA, IRR bridges.

On this question four commenters wanted to see all IRRBP funds

going toward BIA owned IRR bridges.

FHWA Response: The IRRBP was established to reduce the number of

deficient IRR bridges, not just BIA owned IRR bridges.

The Eastern Band of Cherokee Indians commented that ownership

should not be an issue.

FHWA Response: ITGs do provide input as to what bridges are to be

chosen for rehabilitation or replacement following eligibility

requirements for the IRRBP, regardless of who owns the bridge. However,

ownership is an issue since the State and counties have ownership and

primary responsibility for their bridges. Therefore, a smaller

percentage of available funds has been set aside for non-BIA IRR

bridges, since States and counties have access to Federal-aid and other

funding to replace and rehabilitate their bridges and because 23 U.S.C.

204(c) requires that IRR funds be supplemental to and not in lieu of

other funds apportioned to the State. For these reasons, the IRRBP

should not fully fund non-BIA owned IRR bridges.

10. Do IRRBP Projects Have to be on a Transportation Improvement

Program (TIP)? (Sec. 661.33)

The majority of commenters made no remark on this issue. Three

commenters indicated that they agree with the discussion in our prior

notice.

FHWA Position: As discussed in the prior notice, yes, all IRRBP

projects have to be listed on an approved TIP. Under 23 U.S.C. 204(j),

IRR bridges must appear on the BIA's IRRBP TIP and be forwarded to the

State.

11. What Percent of the Contract Authority in any Fiscal Year is

Available for Use on BIA Owned Bridges and non-BIA Owned IRR Bridges?

(Sec. 661.35)

The majority of the commenters wanted to see 100 percent of the

IRRBP funds going toward BIA owned IRR bridges.

FHWA Response: The statute established this program for deficient

IRR bridges and did not simply prescribe the IRRBP funds for sole use

on BIA owned IRR bridges.

The Eastern Band of Cherokee Indians commented that there should be

no distinction in ownership. Another commenter, Isabella County in

Michigan, felt that non-BIA IRR bridges serve Tribal communities and to

limit the annual funding for these bridges would be a disservice to the

Tribal community.

FHWA Response: While the Federal government has both a trust

responsibility and ownership of the BIA bridges on Indian reservations,

States and counties also have a responsibility and themselves own other

IRR bridges. Therefore, the IRRBP which is funded exclusively by the

Federal government, should not bear the full burden of rehabilitation

and replacement costs associated with non-BIA owned IRR bridges.

Ownership is relevant in determining the percentage of funding for non-

BIA IRR bridges and is an issue since the States and counties have

ownership and primary responsibility for their bridges.

The Saginaw Chippewa Indian Tribe of Michigan stated that the

eastern tribes were being penalized.

FHWA Response: Under the former ``not less than 1 percent'' Highway

Bridge Replacement and Rehabilitation Program (HBRRP), funding was

State specific and the bulk of funding was provided for the tribes east

of the Mississippi River. The IRRBP is correcting an inequity that the

HBRRP created. Under the IRRBP, funding is not State specific, but can

be used in any State. The only tribes that are penalized are ones which

fail to submit PS&E packages for IRRBP funding.

The Cherokee Nation commented that the Oklahoma tribes are not

treated fairly under the proposed procedures.

FHWA Response: While the 80-20 split is designed to provide the

bulk of the funding for BIA bridges, it also takes into account the

need to fund non-BIA owned IRR bridges. The $2.6 million provided each

fiscal year (1998-2003) will enable the elimination of numerous

deficient non-BIA owned IRR bridges in Oklahoma or any other State

regardless of geographic location to the extent ITGs are willing to

participate. Presently there is $5.2 million available for non-BIA

owned IRR bridges under the 80-20 split approach (representing FY 1998

and FY 1999 available funds).

We modified our position announced in the prior notice to provide

carryover funding for non-BIA owned IRR bridges from one fiscal year to

the next, to provide a uniform carryover policy for both BIA and non-

BIA owned IRR bridges. It reads as follows. Up to 80 percent ($10.4

million) of funding in any fiscal year would be available for use on

BIA owned IRR bridges. This would leave 20 percent ($2.6 million) of

funding in any fiscal year that would be available for use on non-BIA

owned IRR bridges. A smaller percentage of available funds has been set

aside for non-BIA IRR bridges, since States and counties have access to

Federal-aid and other funding to 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.

12. What Percent of a Specific Project's Construction Costs is Covered

Under This Program? (Sec. 661.37)

The majority of commenters had no remark on this issue.

FHWA position: As discussed in our prior notice, the following

funding provisions apply in administration of the IRRBP: (i) 100

percent funding would be provided for a BIA owned IRR bridge; (ii) up

to 80 percent of the funding would be provided for a State, county, or

locally owned non-BIA IRR bridge; (iii) States, counties, local and

tribal governments would be required to provide at least 20 percent of

the funds for non-BIA IRR bridges; (iv) the funding ceiling for any

single non-BIA

[[Page 38568]]

IRR bridge project would be $1.5 million.

Addressing this question, four commenters wanted to see 100 percent

of funding going towards BIA owned IRR bridges.

FHWA Response: We recognize the need to include non-BIA owned IRR

bridges in this program since the statute does not exclude them.

The Pueblo of Zuni commented that they wanted to see the 80 percent

for non-BIA owned IRR bridges changed to 75 percent.

FHWA Response: The 80-20 split is consistent with other FHWA

programs and we believe that this allocation of funds is reasonable.

Another commenter, the BIA Great Lakes Agency, recommended changing

the funding ceiling for any single non-BIA IRR bridge project from $1.5

million to $500,000.

FHWA Response: There is presently $5.2 million available in FY 1998

and 1999 funds for non-BIA owned IRR bridges. The FHWA believes the

$1.5 million is a reasonable limit.

13. When are IRR Bridge Projects Eligible for Funding? (Sec. 661.39)

Six commenters had no remark on this issue.

FHWA position: We have modified our position announced in the prior

notice by deleting ``control schedule'' and replacing with ``IRRBP

TIP'' in order to reduce some of the documentation requirements. It

reads as follows. The statute provides that IRR funds to carry out

IRRBP projects shall be made available only on approval of the PS&E by

the Secretary. Approval consists of having completed and approved

bridge design, specifications and estimates. The project must be ready

for construction, right of way must have been acquired, and the project

must be awarded within 120 calendar days of funding. A copy of the FHWA

or BIADOT PS&E approval letter, certification checklist and IRRBP TIP

must be forwarded by the area office to the BIADOT/FLH for review and

acceptance. Submittal of an incomplete application package would form

the basis for project disapproval and the BIA area office would have to

revise and resubmit the package.

Three commenters, the BIA Navajo Area Office, the Navajo Nation and

the BIA Aberdeen Area Office were concerned with the 120 calendar day

award period.

FHWA Response: If the BIA Area office cannot award a contract

within 120 days, those funds should be made available to ones that can.

The BIA Area offices in partnership with ITGs, all need to be pro-

active in awarding bridge construction contracts once they receive

approval and funding. It is important that obligation limitation in a

given fiscal year be fully utilized so as not to impact regular IRR

program obligation limitation in the next fiscal year.

The BIA Billings Area Office stated that there is no requirement in

some area certification acceptance plans for FHWA approval.

FHWA Response: Based on the current BIA/FHWA Stewardship plan,

there are no BIA Area offices with second level approval authority for

IRR bridge projects.

The Confederated Salish and Kootenai Tribes of the Flathead Nation,

wanted to know what funding can be used for project development.

FHWA Response: Regular IRR program funds can be used for project

development. The IRRBP funds can only be used for construction and

construction engineering (CE) and may not be used for project

development. We will address this comment in Sec. 661.13 of the rules.

The New York State DOT seemed concerned that somehow the FHWA would

override State, local or ITG selection of projects. The ITG should be

involved in selection of candidate bridge projects.

FHWA Response: We are not establishing the priority of which IRR

bridges should be chosen but will provide a list of bridges which are

in fact deficient. We do however, have approval authority via review of

the application packages being submitted.

The BIA Aberdeen Area Office, was concerned with insufficient

staffing levels at the FHWA Division Offices.

FHWA Response: Because of the concern for the ability of an FHWA

Division Office to review a PS&E package in a timely manner, the

term ``FHWA Division Office'' will be replaced with ``FHWA or

BIADOT'' in Sec. 661.39 of the rules.

14. What Does a Complete Application Package Consist of? (Sec. 661.41)

Six commenters had no remark on this issue. The BIA Navajo Area

Office stated that the FHWA was requiring too much documentation.

FHWA Response: We have modified our position announced in the prior

notice by deleting ``control schedule'' and replacing it with ``IRRBP

TIP'' in order to reduce some of the documentation requirements. Aside

from this, in order for the 12 BIA area offices to operate consistently

and fairly with each other, we believe that it is a reasonable

requirement for sufficient documentation to be supplied with each

application, to ensure that the PS&E package is complete and the

project is ready for construction.

FHWA Position: The FHWA has also included a requirement that non-

BIA IRR bridge projects be supported with a tribal resolution. The FHWA

is including this requirement to insure that public authorities confer

with the ITGs on the issue of replacement and rehabilitation of

deficient non-BIA owned IRR bridges if and when public authorities

apply for IRRBP funding. This will be included in Sec. 661.31,

Sec. 661.39 and Sec. 661.41 of the rules.

The BIA Aberdeen Area Office was concerned with insufficient

staffing levels at the FHWA Division Offices which may not be

sufficient enough to review PS&Es.

FHWA Response: The term ``Division Office'' is deleted and ``or

BIADOT'' is added. In cases where the divisions are not sufficiently

staffed to review PS&Es, the review can be accomplished by the BIADOT

or the FHWA Federal Lands Highway Division offices. This is delineated

in the FHWA/BIADOT Stewardship plan of July 1996. Based on the

preceding discussions, the response to this question is as follows:

Therefore, a complete application package would consist of the

following: the FHWA or BIADOT PS&E approval letter, certification

checklist and IRRBP TIP. In addition to the preceding items, for non-

BIA IRR bridges, the application package must also include a tribal

resolution supporting the project.

15. How are the FY 1998 Projects To Be Treated? (Sec. 661.43)

The majority of commenters had no remark on this issue. Two

commenters agreed with the discussion in our prior notice.

FHWA Position: As discussed in our prior notice, in order not to

penalize any BIA area office which completed PS&E packages in FY 1998

that were not funded because the project selection/fund allocation

procedures for distribution of funds for FY 1998 were not in place, the

funds for approved projects would be made available to the BIA area

offices on receipt and acceptance of their application packages.

Two commenters, the BIA Navajo Area Office and Navajo Nation, were

concerned regarding bridge projects where the award for the

construction contract occurred in FY 1998 using regular IRR program

funds. These commenters wanted reimbursement from the IRRBP funds.

FHWA Response: This issue has been addressed in a FHWA policy

letter

[[Page 38569]]

dated February 19, 1999, to allow for reimbursement on a case-by-case

basis within one year of award.

The BIA Aberdeen Area Office expressed concern with obtaining

``accurate detour length.''

FHWA Response: Detour length is national bridge inventory (NBI)

item number 19, which is included with each bridge file. This item

should be checked along with other condition data by the bridge

inspectors performing the biennial inspections for the BIA and by the

BIADOT which performs oversight quality assurance/quality control

checks of the inspection data.

16. How is a List of Deficient Bridges To Be Generated? (Sec. 661.45)

The majority of commenters had no remark on this issue.

FHWA position: As discussed in our prior notice, in consultation

with the BIA, a list of deficient BIA IRR bridges would 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 would 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)

would be developed and would include, at a minimum, the following: (i)

Sufficiency rating; (ii) status (structurally deficient or functionally

obsolete); (iii) average daily traffic (NBI item 29); (iv) detour

length (NBI item 19); and (v) truck average daily traffic (NBI item

109). These lists would be provided by the FHWA to the BIADOT for

publication and notification of affected BIA area offices, ITGs, and

State and local governments.

The BIA area offices in consultation with Indian tribal

governments, 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

high 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.

The New York State DOT was concerned that the decision of which

bridge will be programmed for the IRRBP would be accomplished at the

local level.

FHWA Response: There is nothing in the current language to preclude

this. BIA area offices in consultation with ITGs must be involved in

selection of candidate bridge projects since, as users of the facility,

they are most familiar with local needs, and safety implications, as

well as other factors related to priorization. The master list based on

the national bridge inventory (NBI) would identify bridges which are

deficient; however, prioritization would be made at the local level. We

are not establishing the priority--merely providing a list of IRR

bridges which are deficient.

Three commenters, the Navajo Nation, BIA Billings Area Office and

BIA Fort Belknap Agency, thought only one list would be necessary,

i.e., one for BIA owned IRR bridges.

FHWA Response: In order to include non-BIA owned IRR bridges two

lists will need to be developed.

17. In the Event of Project Cost Overruns, How Would They be Funded?

(Sec. 661.47)

Seven commenters had no remark and four agreed with the FHWA on

this issue. The New York State DOT wanted the States to retain any

``cost savings.''

FHWA Response: The IRRBP funds are reimbursable and project

specific. As such they are to be returned to the BIADOT/FLH in cases

where ``under runs'' or ``savings'' occur.

The BIA Phoenix Area Office wanted to see specific language to

clarify the process for handling overruns and further argued that under

runs also should be considered.

FHWA Response: The question of under runs is addressed in item

number 21. We have provided the following additional language to the

rules: The BIA area road engineer (ARE) would request additional

funding for a specific bridge project and submit a request with

appropriate justification along with an explanation as to why this

additional funding is necessary.

Based on the preceding discussion, the response to the question of

cost overrun treatment is as follows: Because of the critical nature of

this program, BIA area road engineer approved costs in excess of the

project estimate could be funded out of this program depending on the

availability of funds and subject to BIADOT/FLH project approval

procedures. The AREs would request additional IRRBP funding for a

specific bridge project and submit a request with appropriate

justification along with an explanation as to why this additional IRRBP

funding is necessary. Likewise, project cost over runs may be funded

out of regular IRR program funds.

18. Could Regular IRR Funds be Used to Fund a Bridge Project?

(Sec. 661.49)

Seven commenters had no comment and two agreed with the FHWA

position set forth in the prior notice.

FHWA Position: Regular IRR construction funds can be used to fund a

bridge project with the concurrence of the FHWA, BIADOT and the ARE.

The BIA Billings Area Office expressed concern that the IRR funds

would be provided for non-BIA owned IRR bridges. The same commenter

noted the desire to strike, ``Note, IRR funds may not be used to match

state HBRRP funds.''

FHWA Response: In response to this comment, the ITG may elect to

use their IRR funds for non-BIA IRR bridges. Title IX of Pub. L. 105-

206, sec. 1115(f)(3), changed the ability to use IRR funds to match

State HBRRP funds. The use of the HBRRP funds is outside the scope of

this document.

The BIA Aberdeen Area Office wanted to know why the concurrence of

the FHWA and the BIADOT is needed to use IRR program funds to fund a

bridge construction project?

FHWA Response: The BIADOT and the FHWA have approval authority for

all IRR projects which appear on a TIP, therefore concurrence is a

requirement.

19. Could Bridge Maintenance Be Performed With These Funds?

(Sec. 661.51)

Eight commenters have no comment and three agree with the FHWA

position stated in the prior notice.

FHWA Position: As discussed in our prior notice, the response to

this question is as follows. No, bridge maintenance type repairs would

not be within the scope of funding, e.g., guard rail replacement, deck

timber repair, delineators replacement, etc. There are maintenance

funds available through annual Department of the Interior

appropriations for use on BIA owned bridges. These Department of the

Interior bridge maintenance funds would be the appropriate funding

source for bridge maintenance.

20. Once Eligibility of a Bridge Project has Been Determined, how Will

the Project be Funded/Programmed? (Sec. 661.9)

Several alternatives were set forth in the prior notice and we

considered them fully in our review. For ease of

[[Page 38570]]

reference, the alternatives are presented in tabular form at the end of

this topic.

For BIA owned IRR bridges, the Pueblo of Zuni, BIA Aberdeen Area

Office and BIA Great Lakes Agency generally preferred alternative 1;

the Eastern Band of Cherokee Indians preferred alternative 1 along with

a modified alternative 4; the New York State DOT preferred alternative

2; the Cherokee Nation preferred a combination of alternatives 2, 3 and

5 coupled with an Indian population factor; the Navajo Nation and the

BIA Navajo Area Office preferred alternative 3; the BIA Billings Area

Office and BIA Fort Belknap Agency preferred alternative 4; and the

Confederated Salish and Kootenai Tribes of the Flathead Nation

preferred alternative 5. The BIA Phoenix Area Office wanted to see a

triage approach involving funding of the ``worst first''.

Most commenters did not want to see funding for non-BIA owned IRR

bridges. Four commenters, the Cherokee Nation, Eastern Band of Cherokee

Indians, Saginaw Chippewa Indian Tribe of Michigan and Isabella County,

desire funding for non-BIA owned IRR bridges.

FHWA Response: The purpose of the IRRBP is to optimize the number

of IRR bridges rehabilitated or replaced with the intent of eliminating

as many deficient IRR bridges as possible during the TEA-21 period of

authorization. Alternative 4 provides a first in and first out approach

to fund these projects and, as such, would meet the program objective.

Alternative 5, priorization of projects, would be used in cases where

application packages arrive at the same time and the procedure outlines

a method to settle any issues if such a situation were to occur.

Alternative 4 is believed to maximize the number of IRR bridges

participating in the IRRBP in a given fiscal year. Funding for the

IRRBP should be fully utilized in a given fiscal year to eliminate

deficient IRR bridges which pose a potential safety problem for the

Tribes and motoring public; to maximize the number of bridges

participating in the IRRBP; and to reduce the impact of obligation

limitation deductions on the IRR program from one fiscal year to the

next by fully obligating available IRRBP funding. We realize that this

whole program hinges on ITGs using their regular IRR program funds for

development of PS&E packages regardless of the approach being used.

For non-BIA IRR bridges, the procedures using 20 percent of the

IRRBP funds should parallel the same procedures adopted for the BIA

owned IRR bridges.

While alternative 1, deficient bridge deck area percentage,

provides allocation of funds to be set aside for at a specific BIA Area

Office, it has the potential to tie bridge program funds up among the

12 BIA area offices for an unknown period of time. There is the

likelihood of some BIA Area Offices not having PS&E packages in order

to use up all of the available funding under this alternative. This

being the case, it would impact the other BIA Area Offices regarding

the amount of regular IRR funds available in the following fiscal year.

Alternative 1 is not likely to maximize the rehabilitation and

replacement of deficient IRR bridges. Alternative 2, deficient bridge

deck area percentage--State specific, follows along the same line as

alternative 1, but would be State specific.

Alternative 3, percentage of deficient bridges, does not reflect a

true measure for programming bridges since it is based on numbers of

deficient bridges. A small bridge will have the same value as a larger,

more costly bridge. The costs will not be proportional and therefore

not maximize the use of the IRRBP funding.

Alternatives 1, 2 and 3 essentially have similar limitations

imposed on the bridge program as the previous ``not less than 1

percent'' HBRRP which many people complained about. Congress eliminated

the ``not less than 1 percent'' HBRRP with the TEA-21 Restoration Act.

The basis of the complaints had to do with inequities in funding with

more going toward bridges east of the Mississippi River when a greater

number of deficient IRR bridges are actually to the west of the

Mississippi River. In some cases the HBRRP funding was not being fully

utilized.

We believe that after determination of bridge project eligibility,

funding and/or programming should consist of a combination of

alternatives 4 and 5. Based on the preceding discussion, the response

to the question of how projects will be funded/programmed is as

follows: Funding and/or programming of construction projects for BIA

owned IRR bridges would be based on the order of receipt of a complete

application package, i.e., eligibility requirements met, PS&E package

is complete, etc. All application packages would be placed in a queue

upon submission to the BIADOT and date stamped. This submission queue

would form the basis for prioritization during any fiscal year. After

the queue for the FY is filled up, that is, the obligation limitation

is used up, a queue for the following FY would be established.

In those cases where application packages have arrived at the same

time, application packages would be ranked and prioritized based on:

(i) Bridge sufficiency rating; (ii) bridge status with structurally

deficient having precedence over functionally obsolete; (iii) bridges

on school bus routes; (iv) detour length; (v) ADT; and (vi) truck ADT.

Funding and approval would be based on this priority ranking.

Alternatives for the IRR Bridge Program

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

Deficient IRR Bridges

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

Alt No. BIA Alt No. Non-BIA

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

Bridge funds to be allocated to

the BIA Area Offices:

Based on bridge deck area for 1 Calculation made of the 1 Calculation made of the

deficient bridges. deficient bridges within deficient bridges within

any BIA Area Office any BIA Area Office along

along with percent of with percent of deficient

deficient bridge deck bridge deck areas. That

areas. That percent of percent of the fund is

the fund is then made then made available to

available to each Area each Area Office. Funds

Office. Funds distributed to Areas and

distributed to Areas and can be spent against

can be spent against bridge projects regardless

bridge projects of State. If no, non-BIA

regardless of State. bridge projects are

identified in any FY,

those funds would be made

available for BIA owned

bridges

[[Page 38571]]

Based on bridge deck area for 2 Calculation made of the 1 Intentionally left blank

deficient bridges but State deficient bridges within

specific. any BIA Area Office

along with percent of

deficient bridge deck

areas. That percent of

the fund is then made

available to each Area

Office. Funds

distributed to Areas and

can be spent only

against bridge projects

in the specific state on

which the deficient

bridge funds were

generated (similar to

the not less than 1

percent HBRRP).

Based on number of deficient 3 Calculation made of the Intentionally left blank

bridges. number of deficient

bridges within a given

BIA Area Office. Based

on the number of

deficient bridges, a

percent of the fund is

then made available to

each Area Office. Funds

distributed to Areas and

can be spent against

bridge projects

regardless of State.

Based on order of receipt of 4 Bridges are placed in a 2 Bridges are placed in a

the PS&E package (first in queue based on the order queue based on the order

first out). of receipt of a complete of receipt of a complete

PS&E package. Funds are PS&E package. Funds are

made available to the made available to the BIA

BIA Area Office based on Area Office based on the

the order of submission. order of submission. If

no, non-BIA bridge

projects are identified in

any FY, those funds would

be made available for BIA

owned bridges

Based on ranking of received 5 Bridges are prioritized 3 Submitted complete PS&E

PS&E Packages. and ranked based on SR, packages are ranked and

status, school bus prioritized by sufficiency

route, detour length, rating, etc. Funds are

ADT, and truck ADT. made available to the Area

Funds are allocated to Office based on the

the BIA Area Office priority ranking. If no,

based on the ranking. non-BIA bridge projects

are identified in any FY,

those funds would be made

available for BIA owned

bridges

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

21. Under Alternative Procedures Presented Above, After a Bridge

Project Has Been Completed, What Happens With the Excess or Surplus

Contract Authority? (Sec. 661.11)

The majority of commenters had no comment on this issue.

Three commenters, the BIA Navajo Area Office, the Navajo Nation and

the BIA Great Lakes Agency, wanted to see excess funds reserved for use

on another bridge project involving that BIA Area office. The BIA

Billings Area Office and the BIA Fort Belknap Agency, wanted to see

excess funds being sent back to BIADOT/FHWA for use on additional

approved IRR bridge projects. The New York State DOT, wanted the funds

to be reserved for use within the State.

FHWA Response: Since the funding is project specific, once a bridge

construction project has been completed under this program, any excess

or surplus funding would be returned to BIADOT/FHWA. These surplus

funds would be for use on additional approved deficient IRR bridge

projects. This is based on the need for maximizing the numbers of

bridges to be either replaced or rehabilitated in a nationwide program.

Since this is a cost reimbursable program, there are no savings and

cost underruns shall be returned to BIADOT/FHWA.

Rulemaking Analyses and Notices

The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,

allows agencies engaged in rulemaking to dispense with prior notice and

opportunity for comment when the agency for good cause finds that such

procedures are impracticable, unnecessary, or contrary to public

interest. For the reasons set forth below, the FHWA has determined that

prior notice to the public on this action is unnessary and contrary to

the public interest.

The FHWA has determined that prior notice and opportunity for

comment are unnecessary because comments regarding the project

selection/fund allocation procedures proposed for the IRRBP were

solicited in a February 12, 1999, Federal Register notice along with

informal meetings on this subject that were held at various locations

during December 1998. We have reviewed all comments received in

response to the published notice and those introduced at the public

meetings and have incorporated changes to the original document where

necessary.

The criticality of having in place the project selection/fund

allocation procedures for the IRRBP cannot be over emphasized since

there are deficient IRR bridges which are both on and off reservation

which require remedy to safety, functional and structural deficiencies.

These deficient IRR bridges pose a safety threat to residents of the

Indian reservation as well as the motoring public.

The agency has currently identified 163 deficient BIA owned IRR

bridges where IRRBP funds can be used to alleviate the safety

deficiencies identified in bridge inspection reports and subsequent

data submitted to the NBI. Likewise, there are approximately 940 non-

BIA owned IRR bridges which are also deficient. While the IRRBP may not

be able to replace or rehabilitate all bridges which are deficient, it

attempts to correct ones which have a dire need; these are ones that

have been chosen for participation in the IRRBP by the Indian tribal

governments.

By proceeding with implementation of the program procedures

prescribed herein, the FHWA plans to fully utilize IRRBP funding by

eliminating deficient IRR bridges which pose a potential safety problem

for the Tribes and motoring public; maximizing the number of bridges

participating in the IRRBP; and reducing the impact of obligation

limitation deductions on the IRR program from one fiscal year to the

next.

[[Page 38572]]

The IRRBP funds were available in the fourth quarter of FY 1998;

however, the project selection/fund allocation procedures were not in

place at that time to allow the FHWA to legally release these funds. We

have essentially lost use of these funds for one year (FY1998) of the

four year funding provided in TEA-21. Unless these procedures are put

in place very soon, we also may not be able to provide the IRRBP funds

to the BIA with enough time to obligate against the bridge projects

which are waiting to be funded in the current fiscal year (FY1999).

In summary: (1) The regulations are necessary to put in place the

project selection/fund allocation procedures for the IRRBP immediately;

(2) the IRRBP is vitally important to alleviate deficient IRR bridges,

bridges which are crucial to the well being of Native Americans living

both on and off reservations, as well as the motoring public using

these bridges; (3) IRR bridges play an important role in support of the

transportation infrastructure on reservations; and (4) the regulations

govern a program designed to alleviate safety, structural and

functional deficiencies for IRR bridges of which there is a immediate

and critical need.

In conclusion, any further delay in adopting the prescribed

procedures may impact safety of the motoring public in general and the

Tribes in particular using these deficient IRR bridges. Accordingly, we

believe that imposition of notice and comment procedures prior to

adoption of this rule would prove potentially detrimental to safety

and, thus, contrary to the public interest.

Nevertheless, we will invite public comment in response to the

interim final rule. Comments received will be carefully considered in

evaluating whether any change to the interim rule adopted here is

warranted.

The APA also allows agencies, upon a finding of good cause, to make

a rule effective immediately upon publication, 5 U.S.C. 553(d)(3). The

FHWA has determined that good cause exists in this instance to make

this rule effective for the following reasons: (1) The regulations are

necessary to put in place the project selection/fund allocation

procedures for the IRRBP immediately; (2) the IRRBP is vitally

important to alleviate deficient IRR bridges, bridges which are crucial

to the well being of Native Americans living both on and off

reservations, as well as the motoring public using these bridges; (3)

IRR bridges play an important role in supporting the transportation

infrastructure on reservations; and (4) the regulations govern a

program designed to alleviate safety, structural and functional

deficiencies for IRR bridges of which there is a immediate and critical

need. We emphasize that making these rules effective immediately will

ensure that IRRBP funds may be readily dispersed and, thus, will be

responsive to the goal of fully utilizing IRRBP funding in a given

fiscal year to maximize the number of bridges participating in the

program.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-

612), the FHWA has evaluated the effects of this rule on small entities

including Indian Tribal and local governments. The funding available

under the IRRBP is thought to have a beneficial economic impact on

small entities; however, the funding impact is not expected to be

significant. Accordingly, the FHWA certifies that this action will not

have a significant economic impact on a substantial number of small

entities, except in a positive manner.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Polices and Procedures

The FHWA has determined that this action is not a significant

regulatory action within the meaning of Executive Order 12866 or

significant within the meaning of Department of Transportation

regulatory policies and procedures. It is anticipated that the economic

impact of this rulemaking action will be minimal; therefore, a full

regulatory evaluation is not required. The $13 million in IRRBP funds

comprises only 6 percent of the overall IRR program funds (FY 1999) and

does not have a significant economic impact on the IRR program.

Therefore, the economic impact is considered minimal.

Unfunded Mandates Reform Act of 1995

This interim rule does not impose a Federal mandate as defined by

the unfunded mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.), that

will result in the expenditure by State, local, and tribal governments,

in the aggregate, or by the private sector, of $100 million or more in

any one year.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612 and it has been determined

this action does not have sufficient federalism implications to warrant

the preparation of a federalism assessment.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.205

Highway planning and construction. The regulations implementing

Executive Order 12372 regarding intergovernmental consultation on

Federal programs and activities apply to this program.

Paperwork Reduction Act

This action does not contain information collection requirements

for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-

3520.

National Environmental Policy Act

The agency has analyzed this action for the purposes of the

National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321

et seq.) and has determined that this action will 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

Bridges, Highways and roads, Indian reservation roads and bridges.

Issued on: July 9, 1999.

Kenneth R. Wykle,

Administrator.

In consideration of the foregoing, the FHWA is amending title 23,

Code of Federal Regulations, Chapter I, as set forth below:

1. Add part 661 to read as follows:

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 Indian Reservation Road Bridge Program (IRRBP)?

661.9 How will the bridge project be funded/programmed once

eligibility has been determined?

661.11 After a bridge project has been completed what happens with

the excess or surplus funding?

661.13 What restrictions are there on the use of the IRRBP funds?

[[Page 38573]]

661.15 What is the total funding available for the IRR Bridge

Program?

661.17 When will these funds become available?

661.19 When does an eligible project receive funding?

661.21 How long will these funds be available?

661.23 What can these IRR bridge funds be used for?

661.25 What are the criteria for bridge eligibility?

661.27 When is a bridge eligible for replacement?

661.29 When is a bridge eligible for rehabilitation?

661.31 How does ownership impact project selection?

661.33 Do IRRBP projects have to be on a transportation improvement

program (TIP)?

661.35 What percent of the funding in any fiscal year is available

for use on BIA owned IRR bridges and non-BIA owned IRR bridges?

661.37 What percent of a specific project's construction costs is

covered under this program?

661.39 When are IRR bridge projects eligible for funding?

661.41 What does a complete application package consist of?

661.43 How are the FY 1998 projects to be treated?

661.45 How is a list of deficient bridges to be generated?

661.47 In the event of project cost over runs, how would they be

funded?

661.49 Could regular IRR funds be used to fund a bridge project?

661.51 Could bridge maintenance be performed with these funds?

Authority: 23 U.S.C. 120(j) and (k), 202, and 315; 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

preparing plans, specification and estimates (PS&E) for deficient

Indian Reservation Road (IRR) bridges and make application for

construction funds for the replacement or rehabilitation of these

bridges.

Sec. 661.5 What definitions apply to this regulation?

The following definitions apply to this regulation:

Construction engineering (CE) is the supervision and inspection of

construction activities; additional 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.

Functional obsolescence (FO) is the state or process of being one

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 means a public road that is located within

or provides access to an Indian reservation or Indian trust land or

restricted Indian land which 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 Alaskan

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

Indian reservation road (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.

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.

Structural deficient (SD) bridge means a bridge that has been

restricted to light vehicles only, is closed or requires immediate

rehabilitation to remain open.

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 Indian Reservation Road Bridge Program (IRRBP)?

Section 202(d)(4) of title 23, U.S.C., establishes a nationwide

priority program for improving deficient Indian reservation road (IRR)

bridges and reserves not less than $13 million of IRR funds per year to

replace and rehabilitate bridges that are in poor condition. This

program which addresses the replacement of deficient IRR bridges is

referred to as the IRRBP.

Sec. 661.9 How will the bridge project be funded/programmed once

eligibility has been determined?

(a) Funding and/or programming of construction projects for IRR

bridges would be based on the order of receipt of a complete

application package, i.e., eligibility requirements met, PS&E package

is complete, etc. All application packages would be placed in a queue

upon submission to the BIADOT and date stamped. This submission queue

would form the basis for prioritization during any fiscal year (FY).

After the queue for the FY is filled up, that is, the IRRBP funding 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, application packages would 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. 661.11 After a bridge project has been completed what happens

with the excess or surplus funding?

Since the funding is project specific, once a bridge construction

project has been completed under this program, any excess or surplus

funding would be returned to BIADOT/FHWA for use on additional approved

deficient IRR bridge projects.

Sec. 661.13 What restrictions are there on the use of the IRRBP funds?

The IRRBP funds can only be used for construction and construction

engineering (CE) and may not be used for project development.

Sec. 661.15 What is the total funding available for the IRR Bridge

Program?

The statute provides a total program funding of not less than $13

million for each fiscal year.

[[Page 38574]]

Sec. 661.17 When will these funds become available?

These funds become available on October 1 of each fiscal year.

Sec. 661.19 When does an eligible project receive funding?

The statute provides that these funds are provided after the

Secretary of Transportation (FHWA) approves a completed PS&E.

Sec. 661.21 How long will these funds be available?

The statute provides that the funds for each fiscal year are

available for the year authorized plus three years (a total of four

years).

Sec. 661.23 What can these IRR bridge funds be used for?

The statute provides that these funds can be used to replace,

rehabilitate, seismically retrofit, paint, apply calcium magnesium

acetate to, apply sodium acetate/formate or other environmentally

acceptable, minimally corrosive anti-icing and deicing compositions, or

install scour countermeasures for deficient IRR bridges, including

multiple pipe culverts.

Sec. 661.25 What are the criteria for bridge eligibility?

(a) Bridge eligibility requires the following:

(1) Have an opening of 20 feet or more;

(2) Be on an IRR;

(3) Be unsafe because of structural deficiencies, physical

deterioration or functional obsolescence; and

(4) Be recorded in the national bridge inventory (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. 661.27 When is a bridge eligible for replacement?

To be eligible for replacement, the bridge must be considered

deficient for reasons of structural deficiency or functional

obsolescence. Also, the bridge must have a sufficiency rating of less

than 50 to be eligible for replacement.

Sec. 661.29 When is a bridge eligible for rehabilitation?

To be eligible for rehabilitation, the bridge must be considered

deficient for reasons of structural deficiency or functional

obsolescence. Also, the bridge must have a sufficiency rating of less

than or equal to 80 to be eligible for rehabilitation. A bridge would

be eligible for replacement if the total life cycle cost for bridge

rehabilitation exceeds the costs to replace.

Sec. 661.31 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

would be given to funding construction projects for deficient BIA owned

IRR bridges. We emphasize that consideration could also be given to the

funding of construction projects for the deficient non-BIA, IRR

bridges, however; these projects must be supported by a tribal

resolution.

Sec. 661.33 Do IRRBP projects have to be on a transportation

improvement program (TIP)?

Yes. All IRRBP projects have to be listed on an approved TIP. Under

23 U.S.C. 204(j), IRR bridges must appear on the BIA's IRRBP TIP and be

forwarded to the State.

Sec. 661.35 What percent of the funding in any fiscal year is

available for use on BIA owned IRR bridges and non-BIA owned IRR

bridges?

Up to 80 percent ($10.4 million) of funding in any fiscal year

would be available for use on BIA owned IRR bridges. This would leave

20 percent ($2.6 million) of funding in any fiscal year that would be

available for use on non-BIA owned IRR bridges. A smaller percentage of

available funds has been set aside for non-BIA IRR bridges, since

States and counties have access to Federal-aid and other funding to

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. 661.37 What percent of a specific project's construction costs is

covered under this program?

The following funding provisions apply in administration of the

IRRBP:

(a) 100 percent IRRBP funding would be provided for a BIA owned IRR

bridge;

(b) Up to 80 percent of the IRRBP funding would be provided for a

State, county, or locally owned non-BIA IRR bridge;

(c) States, counties, local and tribal governments would be

required to provide at least 20 percent of the funds for non-BIA owned

IRR bridges;

(d) The IRRBP funding ceiling for any single non-BIA owned IRR

bridge project would be $1.5 million.

Sec. 661.39 When are IRR bridge projects eligible for funding?

The statute provides that IRR funds to carry out IRRBP projects

shall be made available only on approval of the PS&E by the Secretary

(FHWA). Approval consists of having completed and approved bridge

design, specifications and estimates. The project must be ready for

construction, right of way must have been acquired, and the project

contract must be awarded within 120 calendar days of funding. A copy of

the FHWA or BIADOT PS&E approval letter, certification checklist and

IRRBP TIP must be forwarded by the area office to the BIADOT/FLH for

review and acceptance. For non-BIA IRR bridges, the application package

must also include a tribal resolution supporting the project. Submittal

of an incomplete application package would form the basis for project

disapproval and the BIA area office would have to revise and resubmit

the package.

Sec. 661.41 What does a complete application package consist of?

A complete application package would consist of the following: the

FHWA or BIADOT PS&E approval letter, certification checklist and IRRBP

TIP. In addition to the preceding items, for non-BIA IRR bridges, the

application package must also include a tribal resolution supporting

the project.

Sec. 661.43 How are the FY 1998 projects to be treated?

In order not to penalize any BIA area office which completed PS&E

packages in FY 1998 that were not funded because the project selection/

fund allocation procedures for distribution of funds for FY 1998 were

not in place, the funds for approved projects would be made available

to the BIA area offices on receipt and acceptance of their application

packages.

Sec. 661.45 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);

[[Page 38575]]

(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 area offices, Indian

tribal governments (ITG)s, and State and local governments.

(c) BIA area 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. 661.47 In the event of project cost over runs, how would they be

funded?

(a) Because of the critical nature of this program, BIA area road

engineer (ARE) approved costs in excess of the project estimate could

be funded out of this program depending on the availability of funds

and subject to BIADOT/FLH project approval procedures. The ARE would

request additional IRRBP funding for a specific bridge project and

submit a request with appropriate justification along with an

explanation as to why this additional IRRBP funding is necessary.

(b) In addition, project cost over runs may be funded out of

regular IRR program funds.

Sec. 661.49 Could regular IRR funds be used to fund a bridge project?

Yes. Regular IRR construction funds can be used to fund a bridge

project with the concurrence of the FHWA, BIADOT and the BIA ARE.

Sec. 661.51 Could bridge maintenance be performed with these funds?

No. Bridge maintenance repairs would not be within the scope of

funding, e.g., guard rail repair, deck repairs, repair of traffic

control devices, striping, cleaning scuppers, deck sweeping, snow and

debris removal, etc. There are maintenance funds available through

annual Department of the Interior appropriations for use on BIA owned

bridges. The Department of the Interior maintenance funds would be the

appropriate funding source for bridge maintenance.

[FR Doc. 99-18308 Filed 7-16-99; 8:45 am]

BILLING CODE 4910-22-P