[Federal Register Volume 68, Number 89 (Thursday, May 8, 2003)]
[Rules and Regulations]
[Pages 24642-24644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11295]



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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 Roads Bridge Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: The FHWA adopts as final an interim final rule that 
establishes the regulation on the Indian reservation road bridge 
program (IRRBP). The purpose of adopting the interim final rule as 
final is to establish a nationwide priority program for improving 
deficient Indian reservation road (IRR) bridges as required by the 
Transportation Equity Act for the 21st Century (TEA-21). This final 
rule also establishes the project selection and fund allocation 
procedures to ensure the uniform application of this IRRBP.

EFFECTIVE DATE(S): June 9, 2003.

FOR FURTHER INFORMATION CONTACT: Mr. Wade F. Casey, P.E., Federal Lands 
Highway (HFPD-9), (202) 366-9486, or Ms. Vivian Philbin, Office of the 
Chief Counsel (HCC-40), (303) 716-2122. Federal Highway Administration, 
400 Seventh Street, SW., Washington, DC 20590-0001. 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 using a 
computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may also reach the Office of the Federal 
Register's home page at: http://www.archives.gov and the Government 
Printing Office's Web page at: http://www.access.gpo.gov/nara.

Background

    The FHWA published an interim final rule on part 661 on July 19, 
1999, at 64 FR 38565. Interested persons were invited to submit 
comments to FHWA Docket No. FHWA-98-4743. The interim final rule 
established the nationwide priority program for improving deficient 
Indian reservation road bridges as required by section 1115 of the 
Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-
178; 112 Stat. 107; June 1998). The interim final rule also established 
the project selection and fund allocation procedures to ensure uniform 
application of the program and distribution of the funds associated 
with this program. The interim final rule has been in effect since July 
19, 1999.
    Section 1115 of TEA-21 required the Secretary of Transportation 
(hereinafter Secretary) to establish a nationwide priority program for 
improving deficient IRR bridges. This legislation also required 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. In order to immediately implement the IRRBP and 
promptly address the deficient IRR bridges, the FHWA, in conjunction 
with the Bureau of Indian Affairs (BIA) and in consultation with the 
Indian tribal governments (ITGs) and other interested parties, 
developed project selection and fund allocation procedures and issued 
an interim final rule.
    Before issuing a final rule for the IRRBP, we indicated that we 
would invite and actively consider comments introduced concerning the 
IRRBP interim final rule and that we would assess how the IRRBP is 
working, including the fund allocation process based on experience with 
these rules.

Summary of Comments

    Since publication of the interim final rule, the FHWA received 5 
comments to the docket, one from a tribal chairman, one from a tribal 
member, one from the BIA Pacific Regional Office, one from a private 
citizen and one from the TEA-21 Negotiated Rulemaking Tribal Caucus.
    The tribal chairman was concerned that the IRRBP is funded as a $13 
million set-aside from the IRR construction program; that the program 
would be a detriment to tribes in Oklahoma; that the bulk of deficient 
IRR bridges are in Oklahoma and that there is a need to place bridges 
on low water crossings.
    The individual tribal member who commented was also from Oklahoma 
and stated that the interim final rule is non-compliant with the Civil 
Rights Act; it creates two classes of Indian people, those living on 
reservations and those that do not; and limits the use of program funds 
by non-BIA owned IRR bridges that serve non-reservation tribes such as 
those in Oklahoma.
    The BIA Pacific Region was concerned that tribal bridge owners 
would not be able to provide a 20 percent funding match; that right-of-
way should be accepted in the form of a memorandum of agreement (MOA) 
or memorandum of understanding (MOU) between government agencies; that 
TEA-21 be amended to provide funding for project planning and design; 
lastly, that the 120 calendar day award period be amended to 180 
calendar days.
    The private citizen who commented was concerned about treatment of 
BIA versus non-BIA owned bridges and that all Indian tribes regardless 
of location should benefit from this bridge program, even if they 
reside off the ``Indian Reservation.''
    The tribal caucus of the TEA-21 Negotiated Rulemaking Committee 
recommended a number of changes to the interim final rule. It disagreed 
with the 20 percent fund match requirement for non-BIA owned IRR 
bridges. It also disagreed with the provision that set a $1.5 million 
limitation on IRRBP funds for non-BIA owned IRR bridges. In addition, 
it felt that for structurally deficient IRR bridges with a sufficiency 
rating of 50 or less, that the BIA should use its 6 percent 
administrative funds to design replacement bridges. It also recommended 
that the IRR Coordinating committee be consulted regarding the 
deficient bridge list.
    The FHWA has considered all of the written comments submitted and 
we are adopting this interim rule as final based on the following 
discussion:
    (a) It is approaching four years since the rules governing the 
IRRBP have been in place, and ample time has gone by to observe whether 
the rules are working. Since publication, 69 bridges have been funded 
for either replacement or rehabilitation for approximately $35.1 
million. Based on a query of bridges in the process of being designed 
\1\, 66 bridge plan, specification and estimates (PS&Es) are slated to 
be completed in FY 2003 that will require roughly $39.7 million in 
IRRBP construction funds. This is a good indication that the IRRBP 
funds have been fully used during the

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fiscal years (FY) available during TEA-21 (FY 1999--FY 2003) except for 
$4.9 million. The $4.9 million would be available for additional bridge 
projects in FY 2004 and provide a stop gap measure during the period 
following TEA-21's expiration at the end of FY 2003 until the 
reauthorization process is complete. Projecting ahead to FY 2004, 65 
additional bridges are planned for PS&E completion that will require 
roughly $36.5 million in IRRBP construction funds. Likewise, in FY 
2005, 24 bridges are planned for PS&E completion requiring 
approximately $9.3 million in IRRBP funds. Based on the current use of 
the IRRBP funds and the need for additional funds beyond TEA-21, the 
FHWA has determined that the interim rules are working.
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    \1\ Recall that IRRBP funds can not be used until a PS&E is 
completed. See also 23 U.S.C. 202 (d)(4)(D) and 23 CFR 661.39.
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    (b) The concern, particularly within Oklahoma, that some Indian 
tribes would not have access to the IRRBP funds during the fiscal years 
of TEA-21 is unfounded. To date, 26 percent of the IRRBP funds has been 
spent on bridges in Oklahoma. Other major beneficiaries of IRRBP funds 
include Indian tribes within New Mexico (17 percent) and Arizona (9 
percent). To date, all eligible bridge projects submitted for 
processing have been funded.
    (c) Two Indian tribes and the TEA-21 Negotiated Rulemaking Tribal 
Caucus urged that the $1.5 million limitation be eliminated for non-BIA 
owned bridges or even simply waived. The FHWA has determined that to 
remove the $1.5 million limitation would jeopardize both the IRRBP 
statute and its legislative history that envisions a national program 
to address the large number of deficient IRR bridges. This rule does 
not address Indian people in terms of Reservation status. Rather, the 
rule identifies two separate classifications of IRR bridges, namely 
those owned by the BIA and those owned by a State, county or other 
entity. Based on a recent query of the National Bridge Inventory, out 
of an inventory of approximately 4,400 IRR bridges there are roughly 
1,069 that are deficient. The average age for IRR bridges exceed 40 
years and as the IRR bridge infrastructure's becomes older the 
propensity to become deficient increases. If the $1.5 million 
limitation were removed for non-BIA owned IRR bridges, it would 
jeopardize the funding for the 66 bridges that are currently undergoing 
or completing bridge PS&E's this year and would greatly limit the 
number of deficient IRR bridges (both BIA-owned and non-BIA owned) 
which could be funded for replacement or rehabilitation in the future. 
Finally, 23 U.S.C. 204(c) requires that IRR funds be supplemental to 
and not in lieu of other funds appropriated to the States. The States 
currently have access to Surface Transportation Program funds and 
Highway Bridge Replacement and Rehabilitation funds that can be used on 
deficient non-BIA owned IRR bridges. Removal of the matching 
requirement and funding cap would contravene the statutory intent by 
allowing non-BIA owned IRR bridges to be fully funded with IRR funds.

Conclusion

    For the reasons stated above, the FHWA adopts as a final rule the 
interim final rule published on July 19, 1999, at 64 FR 38565.

Rulemaking Analyses and Notices

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

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or the 
U.S. Department of Transportation regulatory policies and procedures. 
The economic impact of this rule will be minimal. This action merely 
adopts as final the interim final rule that has been in effect since 
July 19, 1999.
    This final rule will not adversely affect, in a material way, any 
sector of the economy. In addition, this final rule will not interfere 
with any action taken or planned by another agency and will not 
materially alter the budgetary impact of any entitlements, grants, user 
fees, or loan programs as this action just continues what has been in 
effect since 1999.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the FHWA has evaluated the effects of this final 
rule on small entities including Indian tribal governments (ITGs) and 
local governments and has determined it will not have a significant 
economic impact on a substantial number of small entities. The funding 
available to ITGs under the IRRBP has a beneficial economic impact by 
contributing to replacement and or rehabilitation of deficient IRR 
bridges. These bridges are vital to the transportation infrastructure 
and economic development on Indian reservations. By replacing or 
rehabilitating deficient IRR bridges the IRRBP is key to enhancing 
transportation and the movement of goods and services in Indian 
country.

Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 
109 Stat. 48). This rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million in any one year.
    Additionally, the definition of ``Federal mandate'' in the Unfunded 
Mandates Reform Act excludes financial assistance of the type in which 
State, local, or Indian tribal governments (ITGs) have authority to 
adjust their participation in the program in accordance with changes 
made in the program by the Federal government. The IRRBP permits this 
type of flexibility to the ITGs.

Executive Order 13132 (Federalism)

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

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 a collection of information 
requirement under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520.

National Environmental Policy Act

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

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under Executive Order 13175, 
dated November 6, 2000. The FHWA has determined that participation in 
the IRRBP by the ITGs is optional, however; it is advantageous to the 
ITG to participate since the program provides bridge construction and 
construction monitoring funds for eliminating existing deficient IRR 
bridges. The ITG

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does need to expend IRR or other funds in developing PS&Es and 
prioritize the project on their transportation improvement program 
(TIP) before they can apply for the IRRBP funds.
    Based on this analysis the FHWA has determined that this action 
will not have substantial direct effects on one or more Indian tribes; 
will not impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal law. Therefore, a tribal 
summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. Although this proposal is a significant 
regulatory action under Executive Order 12866, we have determined that 
it is not a significant energy action under that order, because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects under Executive Order 13211 is not required.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

    We have analyzed this action under Executive Order 13045, 
protection of Children from Environmental Health Risks and Safety 
Risks. This action is not an economically significant rule and does not 
concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This action will not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Government Actions and Interference with Constitutionally Protected 
Property Rights.

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 23 CFR Part 661

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

    Issued on: May 1, 2003.
Mary E. Peters,
Federal Highway Administrator.

    In consideration of the foregoing, and under the authority of 23 
U.S.C. 120(j) and (k), 202, and 315; and 49 CFR 1.48, the interim final 
rule establishing 23 CFR part 661, which was published at 64 FR 38565 
on June 19, 1999, is adopted as a final rule without change.

[FR Doc. 03-11295 Filed 5-7-03; 8:45 am]
BILLING CODE 4910-22-P