Federal Register, Volume 64 Issue 137 (Monday, July 19, 1999)

[Federal Register Volume 64, Number 137 (Monday, July 19, 1999)]
[Rules and Regulations]
[Pages 38565-38575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18308]

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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)

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