[Federal Register Volume 69, Number 39 (Friday, February 27, 2004)]
[Rules and Regulations]
[Pages 9490-9502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4055]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 973

[FHWA Docket No. FHWA-99-4968]
FHWA RIN 2125-AE53


Federal Lands Highway Program; Management Systems Pertaining to 
the Bureau of Indian Affairs and the Indian Reservation Roads Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule provides for the development and 
implementation of pavement, bridge, safety, and congestion management 
systems for transportation facilities providing access to Indian lands 
and funded under the Federal Lands Highway Program (FLHP) as required 
by the Transportation Equity Act for the 21st Century (TEA-21). The 
roads funded under the FLHP include Park Roads and Parkways, Forest 
Highways, Refuge Roads, Indian Reservation Roads, and Public Lands 
Highways. These management systems will provide a strategic approach to 
transportation planning, program development, and project selection.

EFFECTIVE DATE: March 29, 2004.

FOR FURTHER INFORMATION CONTACT: Mr. Bob Bini, Federal Lands Highway, 
HFPD-2, (202) 366-6799, FHWA, 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. For legal questions, Ms. 
Vivian Philbin, HFL-16, (303) 716-2122, FHWA, 555 Zang Street, 
Lakewood, CO 80228. Office hours are from 7:45 a.m. to 4:15 p.m., m.t., 
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This final rule, the ANPRM, the NPRM, and all comments received by 
the U.S. Docket Facility, Room PL-401, may be viewed through the Docket 
Management System (DMS) at http://dms.dot.gov. The DMS is available 24 
hours each day, 365 days each year. Electronic submission and retrieval 
help and guidelines are available under the help section of this Web 
site.
    An electronic copy of this document may be downloaded by 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 reach the Office of the Federal Register's 
home page at: http://www.archives.gov and the Government Printing 
Office's Web site at: http://www.access.gpo.gov/nara.

Background

    Section 1115(d) of the TEA-21 (Pub. L. 105-178, 112 Stat. 107, 156 
(1998)) amended 23 U.S.C. 204 to require the Secretary of 
Transportation and the Secretary of each appropriate Federal land 
management agency, to the extent appropriate, to develop by rule 
safety, bridge, pavement, and congestion management systems for roads 
funded under the FLHP. The roads funded under the FLHP include, but are 
not limited to, Park Roads and Parkways, Forest Highways, Refuge Roads, 
Indian Reservation Roads, and Public Lands Highways. The Secretary of 
Transportation delegated to the FHWA the authority to serve as the lead 
agency within the U.S. Department of Transportation (USDOT) to 
administer the FLHP (see 49 CFR 1.48 (b)(29)). This rulemaking action 
addresses the management systems for the Bureau of Indian Affairs (BIA) 
and the Indian Reservation Roads (IRR) program. Separate final rules on 
management systems have also been developed for the National Park 
Service (NPS) and the Park Roads and Parkways program, the Fish and 
Wildlife Service (FWS) and the

[[Page 9491]]

Refuge Roads program, and the Forest Service (FS) and the Forest 
Highway program. The other three related final rules are published 
elsewhere in today's Federal Register.
    On September 1, 1999, the FHWA issued an advance notice of proposed 
rulemaking (ANPRM) to solicit public comments concerning development of 
this proposed rule pertaining to the BIA and the IRR program (64 FR 
47746). The ANPRM requested comments on the feasibility of developing a 
rule to meet both the transportation planning and management systems 
requirements of the TEA-21. A management system is a process for 
collecting, organizing, and analyzing data to provide a strategic 
approach to transportation planning, program development, and project 
selection. Subsequently, the FHWA decided to issue a separate 
rulemaking document for the management systems. Additionally, 
transportation planning is also being addressed under U.S. Department 
of the Interior rulemaking for the IRR program, and a notice of 
proposed rulemaking (NPRM) was published on August 7, 2002 (67 FR 
51328).
    On January 8, 2003 (68 FR 1105), the FHWA issued a NPRM seeking 
comments on the proposal to develop and implement management systems. 
These comments are summarized in the ``Summary of Comments'' section. 
Based on the comments received to the docket and during the 
consultation with the Indian Tribal Governments (ITGs), the FHWA 
developed this final rule to provide for the development and 
implementation of pavement, bridge, safety, and congestion management 
systems for transportation facilities providing access to Indian lands 
and funded under the FLHP. There are instances where reference is made 
to transportation planning because the management systems serve as a 
guide to planning activities, however, this final rule only implements 
the development of management systems.
    During the rulemaking process, the FHWA considered other elements 
for their relationship to the management systems. Among these was the 
need for an environmental management system (EMS). The FHWA is 
supporting and participating in the development of the American 
Association of State Highway and Transportation Officials' Center for 
Environmental Excellence in which EMSs, as they relate to 
transportation, are a major component. This is consistent with the 
FHWA's priority on environmental stewardship and streamlining. In 
addition, the FHWA continues to demonstrate environmental stewardship 
by promoting the use of EMSs in the construction, operation, and 
maintenance of transportation facilities. As implementation plans are 
developed for the management systems, the FHWA will promote 
coordination of the transportation management systems with individual 
agency plans to implement an EMS. At a minimum, this would provide an 
opportunity to link existing environmental data to the transportation 
management systems using a common geographic information system. The 
FHWA decided not to address EMS as part of this rulemaking action, but 
recognizing the importance of EMS initiatives, the FHWA believes that 
EMSs are most appropriately pursued as part of sound business planning 
of each individual agency.

Summary of Comments

    The FHWA received fifteen comments to the docket. Of these, ten 
were from ITGs, tribal councils or tribal associations, including the 
Asa'carsarmiut Tribe, the Assiniboine and Sioux Tribes of the Ft. Peck 
Reservation (the Ft. Peck Tribes), the Cherokee Nation of Oklahoma, the 
Chickasaw Nation of Oklahoma, the Confederated Tribes of the Colville 
Reservation (the Colville Tribes), the Craig Community Association and 
Organized Village of Kasaan, Kawerak, Inc., the Standing Rock Sioux 
Tribe, the United South and Eastern Tribes (the USET), and the Washoe 
Tribe of Nevada and California (the Washoe Tribe). Three State 
Departments of Transportation (State DOTs) submitted comments 
individually, including California (Caltrans), Washington (WSDOT), and 
Wyoming (WYDOT). A coalition of five State DOTs, including the State 
DOTs from Idaho, Montana, North Dakota, South Dakota and Wyoming (the 
State DOT coalition) submitted a collective comment. The remaining 
comment was from the Great Plains Regional Office of the U.S. 
Department of the Interior, Bureau of Indian Affairs.

Consultation/Participation

    Comments: Five commenters, including Caltrans, the Colville Tribes, 
the Fort Peck Tribes, Kawerak, Inc., and the Standing Rock Sioux Tribe 
recommended providing additional opportunities for tribal consultation 
before the rulemaking was finalized, as detailed below.
    Caltrans suggested the tribal consultation component of the 
rulemaking process was weak, due to the fact that all of the 
consultation meetings were held outside of California.
    The Colville Tribes, the Fort Peck Tribes, and the Standing Rock 
Sioux Tribe proposed that the management systems for the Indian 
Reservation Roads (IRR) program should be considered only after full 
government-to-government consultation.
    Kawerak, Inc., a regional non-profit organization providing 
services to 20 Alaska Native Villages in the Bering Strait region, 
suggested that the rule be issued as an interim final rule to permit 
review and revision through consultation with ITGs and any future IRR 
Program coordinating committee (a committee recommended to be 
established in the proposed IRR program NPRM, developed pursuant to 23 
U.S.C. 202 (d), that provides input and recommendations to the BIA and 
the FHWA.)
    Response: The FHWA hosted seven public information and consultation 
meetings with numerous representatives of ITGs throughout the country. 
The purpose of these sessions was to explain the FHWA's intent in 
developing this rule and to seek input and feedback. These meetings 
also provided the FHWA an opportunity to highlight the importance of 
public comment, and describe how to submit comments to the docket.
    All of these meetings were announced in the Federal Register and 
were held in Albuquerque, NM; Fairbanks, AK; Fort Snelling, MN 
(Minneapolis, MN area); Nashville, TN; Portland, OR; Las Vegas, NV; and 
Tulsa, OK. The Las Vegas meeting was held in conjunction with a 
previously scheduled meeting of the Indian Reservation Roads Program 
Negotiated Rulemaking Committee.\1\ Tribal representatives from 74 
federally recognized ITGs, tribal councils, or tribal associations 
attended these seven public information and consultation meetings, and 
provided suggestions and comments. Additionally, the FHWA made a 
presentation in February 2003 at the Northern Plains Tribal 
Transportation Planning meeting in Billings, Montana. Tribal 
representatives from 13 reservations, three of which have two or more 
tribes, Bureau of Indian Affairs staff, tribal

[[Page 9492]]

consultants and staff from the Montana State DOT attended this meeting.
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    \1\ The Committee was authorized by Congress in 23 U.S.C. 202 
(d), and formed to conduct negotiated rulemaking (5 U.S.C. 565) for 
the purposes of recommending program policy, uniform and consistent 
rules, and a funding formula for the Department of Interior in 
implementing the IRR program. These proposed regulations will be 
prepared and issued by the Secretary of the Interior with the active 
participation of the designated tribal representatives as well as 
the designated Federal representatives, three of which were from the 
USDOT.
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    It was determined most practical that the method of consultation 
for this rulemaking was through the nationwide or regional 
informational sessions and attempts to coordinate these sessions with 
other tribal transportation meetings. Therefore, the FHWA determined 
that sufficient consultation with ITGs and representatives has occurred 
in the development of this final rule. In developing this final rule, 
the FHWA has carefully reviewed and analyzed the comments provided from 
ITGs, as well as the concerns raised at the seven public information 
and consultation meetings. The comments have directly resulted in 
several changes to the rule that are discussed in the Section-by-
Section analysis. In that regard, the FHWA believes the rule adequately 
addresses the concerns of the ITGs, and in particular, provides 
additional opportunities for tribal consultation in the implementation 
of the rule.

Relationship to the Negotiated Rulemaking

    Comment: Five ITGs or tribal associations, including the Cherokee 
Nation of Oklahoma, the Chickasaw Nation of Oklahoma, the Colville 
Tribes, the Fort Peck Tribes and the Standing Rock Sioux Tribe 
submitted comments regarding the relationship of this rule to the 
proposed rulemaking action by the Department of the Interior (DOI) to 
establish policy and procedures governing the IRR program, and to 
establish a funding formula.\2\
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    \2\ Section 1115(b) of TEA-21 requires the Secretary of the 
Interior to establish a negotiated rulemaking committee to make 
recommendations to the Secretary of the Interior on establishing 
these regulations. On August 7, 2002 (67 FR 51328), the BIA issued 
an NPRM proposing to establish policy, procedures and a funding 
formula governing the IRR program. As of the date of issuance of 
this final rule, the BIA has not yet issued a final rule for the IRR 
Program.
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    The Cherokee Nation of Oklahoma commented that earlier requests (at 
the ANPRM and NPRM phases) to have this rule included in the 
development of the DOI's IRR program rule were ignored, and reiterated 
the point that this rule should not be developed without tribal 
consultation and participation.
    The Chickasaw Nation of Oklahoma identified the importance of 
having the DOI's final rule for the IRR program, based on the 
recommendation of the Negotiated Rulemaking Committee, in place prior 
to development of the management systems under this rule. This point 
was emphasized because the management systems will be dependent on the 
BIA's IRR inventory, which will be a key product of the DOI's rule.
    Further, the Colville Tribes, the Fort Peck Tribes and the Standing 
Rock Sioux Tribe were concerned about possible inconsistencies between 
the two rules, because the DOI's proposed rule contains a provision 
permitting Indian tribes to develop management systems.
    Response: Section 1115(b) of the TEA-21 requires the Secretary of 
the Interior, not the Secretary of Transportation, to issue regulations 
governing the IRR program, and establish a funding formula. The TEA-21 
further required that the IRR regulation be established using a 
negotiated rulemaking committee. In contrast, this rulemaking is 
required by section 1115(d) of the TEA-21, and is a separate rulemaking 
requirement not tied to the negotiated rulemaking committee's efforts 
to recommend regulations governing the IRR Program, and to establish 
the funding formula for that program. The FHWA understands the 
relationship between specific products of the IRR program such as the 
BIA's IRR inventory and the management systems required by this final 
rule, and agrees that the implementation plan for the BIA/IRR 
management systems must adequately define the relationship between the 
data from the BIA's IRR inventory and the management systems.
    The FHWA concurs with the importance of continued consultation with 
ITGs, and this rule includes a process for developing the 
implementation plans for the management systems that specifically calls 
for tribal consultation in developing details of each of the mandated 
nationwide management systems. This process will provide opportunity 
for further tribal consultation related to such issues as overall 
goals, policies, agency responsibilities, an implementation schedule, 
possible data sources, including the need to accommodate State and 
local data, and costs.

Self-Determination

    Comment: The Colville Tribes, the Fort Peck Tribes, and the 
Standing Rock Sioux Tribe commented that the NPRM ``deprives Indian 
tribes the ability and flexibility to craft the IRR Program and 
tribally-driven management systems unique to the needs and limited 
resources of each tribe.'' In a related issue they expressed concern 
over the lack of ability to determine whether a mandate to include data 
provided by State and local governments would benefit the tribal 
program.
    Response: This final rule on management systems will govern how the 
management systems will be implemented. The rule does not mandate 
management systems for ITGs, recognizing the limited resources that are 
available to ITGs for their transportation programs. The responsibility 
for the nationwide management systems lies with the BIA. In the 
interest of overall compatibility and functionality, this rule triggers 
compliance for tribes only if an ITG specifically decides to implement 
management systems. In that context, an ITG retains the ability and 
flexibility to tailor the management systems to its needs and 
resources, once having made the specific commitment to implement 
management systems. Further, Sec.  973.204(e) has been changed to 
provide for the BIA, in consultation with the tribes, or the tribes 
under a self-determination contract or self-governance agreement, to 
make the determination on including data provided by States and local 
governments in the management systems. The FHWA encourages those States 
and local governments having implemented management systems meeting the 
requirements of 23 U.S.C. 303, that include information on State, 
county or local IRRs, to share the management systems information with 
the BIA and ITGs. State and local governments not having management 
systems are also encouraged to share existing information with the BIA 
and ITGs.

Implementation--Process and Coordination Issues

    Comment: Nine comments were received concerning procedural and 
coordination issues in the implementation of the management systems, 
including comments from Caltrans, the Cherokee Nation of Oklahoma, the 
Chickasaw Nation of Oklahoma, the Colville Tribes, the Fort Peck 
Tribes, the Standing Rock Sioux Tribe, the State DOT coalition, the 
USET, and the WYDOT. The comments, detailed below, identify issues such 
as the relationship of the management systems to other applicable 
statutes and regulations; expected results; coordination with States, 
regional and local governments, and tribes; compatibility and 
communication among systems; use of the systems; and the impact on 
tribal decisionmaking.
    Caltrans expressed a need for coordination of the data required for 
the management systems with data requirements that may result from the 
DOI's rule for the IRR program, as well

[[Page 9493]]

as transportation planning requirements under 23 U.S.C. 134 and 135.
    The Cherokee Nation of Oklahoma expressed concern about how these 
systems will be used. They view management system information as one of 
many planning factors to be considered, rather than solely a means for 
justifying future projects.
    The Chickasaw Nation of Oklahoma commented about the important need 
for an effective communication process among tribes, cities, counties 
and States.
    The Colville Tribes, the Fort Peck Tribes, and the Standing Rock 
Sioux Tribe reiterated the need for coordination with the DOI's rule 
for the IRR program for both transportation planning and management 
systems.
    The State DOT coalition urged efficient implementation of the 
management systems as a means of controlling costs, minimizing the 
burden on States, and avoiding adverse effects on funding or other 
resources available for State programs. To help control costs, the 
State DOT coalition recommended the rule be revised to exclude State 
roads from the management systems. The State DOT coalition also 
suggested providing the Federal land management agencies the 
flexibility to pool resources to implement the management systems, and 
to set up systems compatible with existing State systems, whenever 
appropriate. For the State DOT coalition, an important component of 
strengthening the cooperative relationships with ITGs includes 
providing States access to accident data, within the limits of properly 
defined confidentiality parameters.
    The USET expressed the need for a clear understanding of the 
products that will result from the system. In addition, it noted a 
difficulty in coordinating implementation plans among numerous tribes, 
and expressed concern for tribal officials being able to coordinate on 
an equal footing with State and local governments.
    WYDOT emphasized the need for State DOTs to maintain sovereignty 
over roads under State DOT ownership, and advised caution that the use 
of management systems not alter decision-making processes for State 
roads.
    Response: Section 973.204 of this final rule, entitled ``Management 
systems requirements,'' includes a requirement for the BIA and the 
FHWA, in consultation with the Tribes, to develop an implementation 
plan for each of the nationwide management systems. These 
implementation plans will provide an opportunity for consultation and 
collaboration in the development of each of the nationwide management 
systems. The plans will include, but are not limited to: Overall goals 
and policies concerning the nationwide management systems, each 
agency's responsibilities for developing and implementing the 
nationwide management systems, an implementation schedule, data 
sources, including the need to accommodate State and local data, and 
cost estimate.
    In the public informational meetings, the FHWA emphasized that the 
required implementation plans for the nationwide management systems 
will address the types of issues raised by the commenters regarding 
coordination among agencies and the implementation process. 
Establishing goals and objectives for the nationwide management systems 
through a collaborative process provides a means to assure the data 
requirements are adequately coordinated with the DOI's proposed IRR 
program rule, and the transportation planning requirements of 23 U.S.C. 
134 and 135 for Metropolitan and Statewide planning. This process will 
provide an opportunity to use the data needs and outputs of the 
management systems to best meet the combined needs and responsibilities 
of the BIA, FHWA, ITGs, States, and regional and local agencies. As 
highlighted by the comments, implementing some aspects of the 
management systems will require cooperation among entities that may not 
have previously worked together to provide information. The guidelines 
and expectations for this cooperative effort will be an important 
component of the implementation plans.
    Implementation plans will also provide an opportunity to clarify 
other issues of responsibility. Nothing in the rule is intended to 
affect current responsibility for facilities covered by the management 
systems. The plans are intended to develop effective means of 
collecting and using information to improve decisionmaking for the IRR 
program, and to promote data sharing. Inclusion of State and local 
roads in the management systems does not assume that the BIA or ITGs 
would duplicate the data collection effort already undertaken by a 
State or local government. Rather, the emphasis is on the importance of 
cooperation and coordination in sharing data. While the FHWA has 
acknowledged part of the data collection burden may be a State 
responsibility, minimizing that burden is the BIA's responsibility in 
its role of establishing and maintaining the nationwide management 
systems. States and tribes will have the opportunity to help determine 
how the information is collected and used during the development of the 
implementation plans. One important component of the management systems 
will be compatibility with existing State systems, as a means to 
minimize any additional data collection burden or duplication of 
effort.
    Management systems are a tool for improving the efficiency and 
effectiveness of the IRR program. The FHWA agrees with the Cherokee 
Nation of Oklahoma that the output of the management systems is one of 
many factors to be considered by tribal officials in making 
transportation decisions. This goal is set forth in Sec.  973.204(k), 
which states, in part: ``The management systems shall be operated so 
investment decisions based on management system outputs * * * can be 
utilized throughout the planning process.'' Overcoming longstanding, 
difficult problems, such as developing a data sharing protocol for 
confidential accident data, is an example of a significant process 
issue to be addressed in the implementation plans.

Implementation--Management System Structure and Data Standards

    Comment: The FHWA received five comments regarding management 
system elements from the Cherokee Nation of Oklahoma, the Chickasaw 
Nation of Oklahoma, Kawerak, Inc., the State DOT coalition, and the 
USET covering the structure of the management systems, software and 
data standards, the relationship to existing data collection 
activities, and the extent of management system coverage of various 
transportation system components.
    The Cherokee Nation of Oklahoma expressed concern about 
compatibility with other management systems and the level of data 
necessary to adequately serve the needs of the BIA and the tribes. This 
was similar to the State DOT coalition statement that data collection 
costs for the management systems would take resources away from 
projects.
    The Chickasaw Nation of Oklahoma questioned whether current data 
collection for the IRR inventory was duplicative of information that 
would be collected for the pavement, bridge and safety management 
systems, and indicated that data would need to be collected annually. 
The Chickasaw Nation of Oklahoma also stressed the need for common 
safety management system requirements among State, tribal and local 
DOTs, including geo-referencing requirements for accurate spatial 
correlation of information.
    Kawerak, Inc., made a similar comment in stating the need to

[[Page 9494]]

coordinate the pavement management system database with the IRR 
inventory.
    The USET expressed concern that no software had been identified as 
a standard.
    The State DOT coalition indicated that unpaved roads might not 
warrant inclusion in the management system due to the undue cost in 
acquiring and maintaining data for that portion of the system.
    Response: The FHWA agrees there are a number of elements that must 
be evaluated as the management systems are implemented. Section 973.204 
of the final rule establishes the context for evaluating these elements 
by providing the BIA with the latitude to tailor the nationwide 
management systems to meet the agency's goals, policies and needs using 
professional engineering and planning judgment to determine the 
required nature and extent of systems coverage consistent with the 
intent and requirements of this rule. By definition, the pavement 
management system (PMS) is intended to provide coverage for all paved 
roads in the IRR inventory since its purpose specifically refers to 
effective strategies for the reconstruction, rehabilitation and 
preventive maintenance of pavements. The BIA may choose to include all 
roads in the IRR inventory in the PMS for future planning purposes, but 
this rule does not require it. For clarification, the FHWA has added 
reference to the applicability of Sec.  973.208 to only federally and 
tribally owned, paved IRRs.
    Compatibility with other management systems, the level of data 
necessary to effectively support the BIA's objectives for the 
management systems, the frequency of data collection, the relationship 
to other transportation system data already being collected, and the 
selection of computer software, if any, to manage the data are all 
legitimate issues to be addressed by the BIA and the FHWA, in 
consultation with the tribes, as the implementation plans are 
developed. Rather than collect all data annually, Sec.  973.204(f) of 
the final rule provides for the BIA, in consultation with the tribes, 
to select a process for operating and maintaining the databases needed 
to support the management systems. The key is that the information be 
collected periodically on a regularly recurring cycle, but not 
necessarily annually.

Funding

    Comment: Next to comments requesting substantive changes to the 
proposed rule, funding for implementation of the management systems 
generated the greatest number of comments from the States and tribal 
governments. Twelve comments were received regarding funding, including 
comments from the Asa'carsarmiut Tribe, Caltrans, the Cherokee Nation 
of Oklahoma, the Chickasaw Nation of Oklahoma, the Colville Tribes, the 
Craig Community Association and Organized Village of Kasaan, the Fort 
Peck Tribes, Kawerak, Inc., the Standing Rock Sioux Tribe, the USET, 
the Washoe Tribes, and the WYDOT. The comments generally focused on 
three issues, namely, the inadequacy of current IRR program funds; 
additional financial burden on the States; and, the need for a 
dedicated source of funds for the management systems, as detailed 
below.
    Caltrans and WYDOT commented on the potential additional financial 
burden on the States since the current level of IRR funding was not 
adequate to meet all of the competing needs for program funding.
    Seven ITGs or tribal associations, including the Asa'carsarmiut 
Tribe, the Colville Tribes, the Craig Community Association and 
Organized Village of Kasaan, the Fort Peck Tribes, Kawerak Inc., the 
Standing Rock Sioux Tribe, and the Washoe Tribes commented that the IRR 
two percent planning and construction funds are currently inadequate to 
support an additional activity.
    In addition, the Cherokee Nation of Oklahoma, Kawerak, Inc., and 
the USET, commented about the need for a dedicated source of funds for 
the management systems.
    On a separate issue, the Chickasaw Nation of Oklahoma expressed 
concern for the costs to the BIA associated with conducting life-cycle 
cost analysis.
    Response: No dedicated source of funds exists for implementation of 
the management systems. Title 23, United States Code, section 204(a) 
requires the FLMAs, including the BIA, to develop and implement 
nationwide management systems. The source of funds identified for this 
activity is IRR program funds, which includes program management costs. 
Since specific management systems for the tribes are optional, 
development and implementation of tribal management systems are an 
appropriate use of the IRR two percent planning and construction funds.

Additional Comments

    Comments: The Cherokee Nation of Oklahoma, the Craig Community 
Association and Organized Village of Kasaan, and the USET offered 
comments in support of the management systems citing the need for 
information on regional transportation conditions, their value as a 
planning and programming tool, and the value to ITGs for improving 
their transportation systems.
    In addition, the WSDOT supported management systems as a good 
business practice and offered technical assistance for their 
development.
    Response: The FHWA supports efforts by WSDOT to provide technical 
assistance in the development of the management systems, and encourages 
all State DOTs to provide technical assistance, if requested. In 
addition, the FHWA appreciates identification by the Cherokee Nation of 
Oklahoma, the Craig Community Association and Organized Village of 
Kasaan, and the USET of the value of the management systems in 
supporting their transportation planning programs, and tribal 
transportation decisionmaking.

Section-by-Section Analysis

    Comments and responses have been provided for those sections for 
which specific suggestions for change were received. Seven commenters, 
including the Chickasaw Nation of Oklahoma, the Colville Tribes, the 
Craig Community Association and Organized Village of Kasaan, Kawerak, 
Inc., the Fort Peck Tribes, the Great Plains Regional Office of the 
Bureau of Indian Affairs, and the Standing Rock Sioux Tribe suggested 
changes to specific sections of the rule. The FHWA has evaluated the 
suggested changes and has included several changes to improve the 
flexibility of the BIA and ITGs to develop and implement management 
systems, and add opportunities for consultation.

Subpart A

Section 973.104 Definitions

    Comment: The Colville Tribes, the Fort Peck Tribes, and the 
Standing Rock Sioux Tribe recommended the addition of definitions for 
the words ``Indian tribe'' and ``Intelligent Transportation Systems 
(ITS).''
    Response: The FHWA agrees with the need to add these two 
definitions, and the final rule has been modified to reflect these two 
terms.

Subpart B

Section 973.202 Applicability

    Comment: Kawerak, Inc., recommended inserting ``Federal Highway 
Administration and* * *'' prior to ``the Bureau of Indian Affairs.'' 
Kawerak, Inc. indicated that the tribes, in general, are not content 
with the BIA administration of the IRR Program, and desire more 
involvement by the FHWA.
    Response: The BIA and the FHWA jointly administer the IRR program 
and, as such, the FHWA has a very active

[[Page 9495]]

role in this program. While the BIA is principally responsible for 
implementing this rule, the ITGs will be actively involved in the 
development of implementation plans for the management systems that 
support tribal transportation infrastructure. The FHWA has revised the 
language in Sec.  973.202 to include applicability to the FHWA, since 
the FHWA will continue to carry out its roles of stewardship and 
oversight of the IRR program, and will participate with the BIA and the 
tribes in the development and implementation of the management systems.

Section 973.204 Management Systems Requirements

Section 973.204(a)
    Comment: The Chickasaw Nation of Oklahoma suggested the need to add 
``after consultation with the tribes'' to the end of Sec.  973.204(a).
    Response: The FHWA agrees with the principal of the comment. 
Therefore, to emphasize the need for consultation with the tribes and 
to address concerns for flexibility in developing and implementing the 
management systems, the following language has been inserted at the end 
of the paragraph, ``after considering the input from the tribes, and 
using professional engineering and planning judgment to determine the 
required nature and extent of systems coverage consistent with the 
intent and requirements of this rule.'' This phrase strengthens the 
language in the rule that requires the BIA to consult with the tribes 
throughout the process by putting emphasis on the results of the 
consultation. In addition, it emphasizes the need for engineering and 
planning judgment in making decisions about the details of the 
management systems.
    Comment: Kawerak, Inc., recommended deleting the phrase ``in 
consultation with the tribes'' from Sec.  973.204 and replacing it with 
``FHWA and the IRR Coordinating Committee.'' Further, it recommends 
that Sec. Sec.  973.204(i) and (j) be modified in a similar fashion. In 
addition, it recommends that all other references to ``in consultation 
with the tribes'' throughout the rule be replaced with the ``IRR 
Coordinating Committee.''
    Response: The FHWA disagrees with the recommended changes. 
Executive Order 13175 requires tribal consultation on policies with 
tribal implications. The language in the rule provides the broadest 
opportunity for tribal consultation. The FHWA agrees that any future 
IRR program coordinating committee could be asked to provide 
recommendations.
Section 973.204(b)
    Comment: The Chickasaw Nation of Oklahoma requested the following 
be added to Sec.  973.204(b) of the rule: ``The requirements under 
these regulations shall be suspended until such time that 25 CFR part 
170, Rules for Indian Reservation Roads are finalized.'' This requested 
change referenced the close relationship between the BIA's IRR 
inventory data, that would be governed by the proposed IRR program 
rule, and the management systems.
    Response: The FHWA recognizes the close relationship between the 
BIA's IRR inventory data and the management systems. However, the 
statutory mandate for the management systems rules is completely 
separate from the DOI's proposed IRR program rule. The FHWA agrees with 
the intent of the requested change, but does not agree it is necessary 
to change the rule language to reach the intended objective. In the 
Background section, we have referenced the need for close coordination 
in the development of the implementation plans for the management 
systems with the IRR program rule. The BIA, the FHWA and the tribes 
will all have involvement in the development of the implementation 
plans. This consultative process will provide for effective 
coordination between the two rules.
Section 973.204(c)
    Comment: For consistency with Sec.  973.204(a) and to provide the 
tribes flexibility in developing tribal management systems, the FHWA 
has determined that the following phrase should be added to the end of 
Sec.  973.204(c) ``* * * using professional engineering and planning 
judgment to determine the required nature and extent of systems 
coverage consistent with the intent and requirements of this rule.''
    Response: The FHWA has modified Sec.  973.204(c) to reflect this 
change.
Section 973.204(d)
    Comment: The Colville Tribes, the Fort Peck Tribes, and the 
Standing Rock Sioux Tribe objected to the language in Sec.  973.204(d) 
that provides for the BIA, in consultation with the tribes, to develop 
criteria for cases in which tribal management systems are not 
appropriate. In their view, this provision provides the BIA with 
``unfettered discretion'' that limits the flexibility of ITGs to tailor 
management systems to meet their individual needs. They recommend that 
this provision be deleted.
    Response: The FHWA disagrees with the need to delete this 
provision, and has retained the original language. Section 973.204(d) 
requires that the BIA consult with the tribes in developing the 
criteria for cases in which tribal management systems are not 
appropriate. This provision affords ITGs restraint from the BIA 
unilaterally making decisions that would compromise the rights or 
abilities of the tribes to tailor management systems to their needs. 
The FHWA envisions that this provision of the rule may help to preserve 
the limited resources of the tribes in cases where the limited nature 
and extent of the tribal transportation system does not justify a 
substantial investment in tribal management systems. In these cases, 
the nationwide management systems would be sufficient.
Section 973.204(i)
    Comment: The Colville Tribes, the Fort Peck Tribes, and the 
Standing Rock Sioux Tribe commented that Sec.  973.204(i) was 
inconsistent with Sec.  973.214(a) regarding tribal consultation. 
Section 973.214(a) includes a requirement for tribal consultation, and 
Sec.  973.204(i) does not, even though both sections provide the 
criteria for determining when congestion management systems need to be 
implemented.
    Response: Section 973.214(a) references tribal consultation in 
conjunction with criteria for congestion management systems for a 
specific federally or tribally owned IRR transportation system 
experiencing congestion, while Sec.  973.204(i) focuses on criteria for 
generally determining when congestion management systems are required. 
For internal consistency among paragraphs of the rule, the FHWA agrees 
with the suggested change and Sec.  973.204(i) has been modified to 
insert ``in consultation with the tribes,'' after ``The BIA and the 
FHWA * * *.''
    For additional comment and response concerning Sec.  973.204(i), 
see Sec.  973.204(a) in the section-by-section analysis.
Section 973.204(j)
    Comment: The Colville Tribes, the Fort Peck Tribes and the Standing 
Rock Sioux Tribe indicated that Sec.  973.204(j) makes no allowance for 
tribal input into the evaluation of the effectiveness of the management 
systems.
    Response: The FHWA agrees with the need to allow for tribal input 
into the evaluation of the effectiveness of the management systems and 
has modified the section by inserting ``nationwide'' before 
``management systems''; and, at the end of the paragraph adding ``to 
assist the FHWA in evaluating the efficiency and effectiveness of the

[[Page 9496]]

management systems as a component of the IRR program, and may include 
consultation with the tribes, as appropriate.''
    For additional comment and response concerning Sec.  973.204(j), 
see Sec.  973.204(a) in the section-by-section analysis.

Section 973.206 Funds for Establishment, Development, and 
Implementation of the Systems

    Comment: The Chickasaw Nation of Oklahoma recommended changing the 
word ``may'' to ``shall'' in the first sentence of this section, as 
recognition of the potential costs involved in implementing the 
management systems, and assuring that sufficient funds would be 
available.
    Response: The FHWA disagrees with the need for this change. As 
stated above, responsibility for implementing the nationwide management 
systems lies with the BIA. Development and implementation of the 
management systems is an appropriate use of IRR program funds, and this 
paragraph provides the option for the BIA to use those funds rather 
than mandating use of those funds.

Section 973.208 Indian Lands Pavement Management System (PMS)

    Comment: The Great Plains Regional Office of the Bureau of Indian 
Affairs recommended adding the words ``paved surface'' between 
``owned'' and ``IRRs'' in Sec.  973.208(a).
    Response: This recommendation reiterates a comment addressed above 
in the section entitled, ``Implementation--Management System Structure 
and Data Standards.'' By definition, the pavement management system 
(PMS) is intended to provide coverage for all paved roads in the IRR 
inventory since its purpose refers to effective strategies for the 
reconstruction, rehabilitation and preventive maintenance of pavements. 
However, to provide clarity, the FHWA has added the word paved between 
``owned'' and ``IRRs'' in Sec.  973.208(a).
    Comment: The Craig Community Association and Organized Village of 
Kasaan specifically opposed having the BIA, Branch of Roads carry out 
the requirements of Sec. Sec.  973.208, 973.210, 973.212 and 973.214.
    Response: The emphasis in this rulemaking is on the development of 
nationwide management systems. As joint administrator of the IRR 
program, the BIA is the most appropriate entity to develop, establish 
and maintain the IRR management systems.

Section 973.212 Indian Lands Safety Management System (SMS)

    Comment: Kawerak, Inc. recommended deleting the words ``federally 
and tribally owned'' from Sec.  973.212(a), citing the need for the 
tribes to have a safety management system that covers all IRR roads, 
not only those that are federally or tribally owned.
    Response: The language in the final rule gives responsibility to 
the BIA for developing management systems for facilities within its 
purview, as prescribed in 23 U.S.C. 204(a). Similarly, many States have 
chosen to take responsibility for developing management systems for 
roads under their ownership. The need to provide ITGs with information 
on all IRRs reinforces the importance of coordination between the 
agencies and the States for data sharing. In addition, it points out 
the distinction between responsibility for collecting and maintaining 
the data for certain portions of the system, and sharing and using the 
data for decisionmaking. These are critical issues to be addressed in 
the development of the implementation plans, but do not require a 
change in the rule language regarding management system coverage and 
responsibility. Rather, the FHWA encourages a cooperative relationship 
among the BIA, ITGs, States, and local governments and to share the 
information they may collect.

Conclusion

    The FHWA anticipated substantial interest in this rulemaking and 
undertook a specific public information and consultation effort with 
the ITGs. As a result, the NPRM generated a significant number of 
comments from State DOTs and ITGs. These comments resulted in several 
changes to the final rule that responded directly to tribal and State 
DOT concerns, as described above. The majority of the changes respond 
to tribal concerns about consultation in the rulemaking process and 
implementation of the management systems following publication of the 
final rule, by providing additional opportunity for consultation with 
the tribes in the development, establishment and implementation of the 
management systems. In addition, the comments have helped to raise 
awareness about coordination of roles and responsibilities of all 
entities involved in the development of the implementation plans. The 
FHWA believes that the resulting changes have made improvements to the 
final rule that meet the needs of the ITGs and the State DOTs, and will 
yield enhanced cooperation and consultation in the implementation of 
the final rule.

Rulemaking Analyses and Notices

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

    The FHWA has determined that this rule is a significant regulatory 
action within the meaning of Executive Order 12866 and under the 
regulatory policies and procedures of the U.S. Department of 
Transportation because of the substantial public interest in the 
transportation facilities serving Indian lands. The Office of 
Management and Budget has reviewed this document under E.O. 12866. The 
FHWA anticipates that the economic impact of any action taken in this 
rulemaking process will be minimal. The FHWA anticipates that the rule 
will not adversely affect any sector of the economy in a material way. 
This rule will impact the BIA, however, it will not likely interfere 
with any action taken or planned by the BIA or another agency, or 
materially alter the budgetary impact of any entitlement, grants, user 
fees, or loan programs.
    The FHWA has considered the costs and benefits associated with this 
rulemaking and the information provided in response to the NPRM, and 
believes that the benefits outweigh the costs of acquiring the 
management system information. Information provided by the management 
systems will enhance transportation investment decisions for the IRR 
program and improve the overall efficiency of the IRR transportation 
system. In addition, the management system information will assist the 
FHWA in its stewardship and oversight roles. The benefits of the 
management system information will be significant in relationship to 
the costs of implementation.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this action on small 
entities. Title 23, U.S.C. requires that the FLMAs implement nationwide 
management systems for roads funded under the FLHP. The BIA, as joint 
administrator of the IRR program, has the responsibility for developing 
and implementing the management systems. The FHWA has acknowledged a 
possible role for States and Metropolitan Planning Organizations (MPOs) 
in collecting data for the management systems; however, this role is 
not anticipated to include small entities. In addition, the BIA bears

[[Page 9497]]

the burden of implementing the management systems in a manner that will 
minimize the impact on non-Federal entities, including small entities. 
Due to the limited expectation that small entities will have any role 
in implementing the management systems, the FHWA has determined that 
this action will not have a significant economic impact on a 
substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This final rule will not impose a mandate that requires further 
analysis under the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 
March 22, 1995, 109 Stat. 48). This action will not result in the 
expenditure by State, local and ITGs, in the aggregate, or by the 
private sector, of $100 million or more in any one year (2 U.S.C. 
1532). This rulemaking provides for the development and implementation 
of pavement, bridge, safety, and congestion management systems for 
transportation systems providing access to and within Indian lands. 
These roads are funded under the FLHP; therefore, this action is not 
considered an unfunded mandate.

Executive Order 13132 (Federalism)

    This rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, dated August 4, 1999. The 
FHWA has determined that this action will not have sufficient 
federalism implications to warrant the preparation of a federalism 
assessment. The FHWA has also determined that this action will 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

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. The FHWA determined 
that this rule contains a requirement for data and information to be 
collected and maintained in the four management systems that are to be 
developed. In order to streamline the process, the FHWA requested OMB 
approval for a single information collection clearance for all of the 
data in the four management systems at the time the final rule is 
published. The FHWA is sponsoring this proposed clearance on behalf of 
the BIA.
    The FHWA estimates that a total of 5,600 burden hours per year 
would be imposed on non-Federal entities to provide the required 
information for the BIA management systems. Respondents to this 
information collection include State DOTs, Metropolitan Planning 
Organizations (MPOs), Tribal governments, regional transportation 
planning agencies, and county and local governments. The BIA bears the 
burden of developing the management systems in a manner that would 
incorporate any existing data in the most efficient way and without 
additional burdens to the public. These estimates only include burdens 
on the respondents to provide information that is not usually and 
customarily collected.
    Where a substantial level of effort may be required of non-Federal 
entities to provide BIA management system information, the effort has 
been benchmarked to the number of miles of State, local or tribally 
owned roads or the number of State, local or tribally owned bridges 
within the IRR system. This approach has been applied to the pavement 
management system (PMS), the bridge management system (BMS), and the 
safety management system (SMS). For BIA implementation of the PMS, BMS, 
and SMS, the total annual burden estimate is 3,600 of the 5,600 hours 
per year. The level of burden on non-Federal entities for these 
management systems is modest since the agency will incorporate existing 
data into the system. Of these three systems, the most substantial 
burden is associated with the collection of data to implement the BMS. 
The BMS burden is estimated at 1,400 hours per year. The PMS and SMS 
burdens are estimated at 1,100 hours per year for each of these 
management systems.
    For the congestion management system (CMS), the non-Federal burden, 
if applicable, will likely fall to the MPOs, and represents the need 
for the BIA to coordinate its management system with the MPOs, for 
those limited instances when a portion of its transportation system is 
within an MPO area. This results in a total annual burden estimate of 
2000 hours for the IRR CMS.
    Comments regarding the proposed information collection were 
received from the State DOT coalition, and Caltrans. The State DOT 
coalition and Caltrans acknowledged States would be requested to 
provide information, and indicated such activities would represent a 
burden. The detailed extent of the burden would depend on the specific 
information requested and the process used to implement the management 
systems. The State DOT coalition encouraged a cooperative process using 
approaches that would avoid redundancy and duplication in implementing 
the management systems. The State DOT coalition also indicated that 
management systems should be implemented efficiently to control costs, 
by limiting the data collected to the minimum necessary to achieve IRR 
program goals.
    The FHWA anticipated some burden on States and MPOs in the burden 
estimates prepared as part of the rulemaking. The State DOT coalition 
and Caltrans did not question the need for management systems or the 
FHWA's burden estimates. The FHWA believes that the value of the 
management systems information for transportation decisionmaking 
outweighs the burden of collecting it. Information provided by the 
management systems will enhance transportation investment decisions for 
the IRR program, improve the overall efficiency of the IRR 
transportation system, and provide information to be used in the new 
IRR program funding distribution formula. In addition, it will assist 
the FHWA in its stewardship and oversight roles. The FHWA has tried to 
keep the data collection burden to the lowest level possible, while 
still providing for the necessary data. In that regard, the FHWA 
believes the burden estimates to be fair and equitable. The BIA has the 
responsibility to develop the management systems in a manner that would 
incorporate any existing data in the most efficient way, and without 
additional burden to the public.

National Environmental Policy Act

    The agency 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 
the environment. An environmental impact statement is, therefore, not 
required.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, dated 
November 6, 2000, and believes that this action will have substantial 
direct effects on one or more Indian tribes.

[[Page 9498]]

    Section 5 (b) of Executive Order 13175 states:

To the extent practicable and permitted by law, no agency shall 
promulgate any regulation that has Tribal implications, that imposes 
substantial direct compliance costs on Indian Tribal governments, 
and that is not required by statute, unless:
    (1) Funds necessary to pay the direct costs incurred by the 
Indian Tribal government or the Tribe in complying with the 
regulation are provided by the Federal Government; or
    (2) The agency, prior to formal promulgation of the regulation,
    (A) Consulted with Tribal officials early in the process of 
developing the proposed regulation.

    The Executive Order states similar requirements for any regulation 
that has tribal implications and preempts tribal law.
    As stated previously, this rulemaking is statutorily required under 
section 1115(d) of the TEA-21. While there are no specific additional 
dedicated funds for implementing this regulation, funds already 
available under the IRR program can be used for the development, 
establishment, and implementation of the management systems. The FHWA 
used a series of public information and consultation meetings 
(described in the section entitled, ``Summary of Comments'') and tribal 
transportation meetings to consult and coordinate with ITGs on this 
rulemaking, since its inception. At these meetings, the FHWA advised 
the tribes of the ANPRM and the NRPM, and encouraged them to submit 
comments and suggestions to the docket.

Tribal Summary Impact Statement

    On January 8, 2003 (68 FR 1105), the FHWA published the NPRM, to 
solicit public comments concerning development of this proposed rule. 
Among the comments the FHWA received are the comments from ten ITGs, 
intertribal councils or tribal associations. These comments are 
summarized in the section entitled ``Summary of Comments.'' Specific 
comments may be obtained by reviewing the materials in the docket at 
http://dms.dot.gov.
    Pursuant to Executive Order 13175, during the development process 
for this final rule, the FHWA participated in a number of public 
information and consultation sessions with numerous representatives of 
ITGs throughout the country. The purpose of these sessions was to 
provide an overview of the rulemaking process and explain the FHWA's 
purpose and intent in developing the rule. These discussions were 
scheduled meetings with time and location published in the Federal 
Register on January 30, 2003 (68 FR 4744). In addition, the FHWA made a 
presentation at the February 2003 Tribal Transportation Planning 
meeting in Billings, Montana.
    Tribal comments and concerns raised at these meetings reflected the 
comments to the docket. They included lack of a dedicated source of 
funding, the relationship of the rulemaking to the DOI's negotiated 
rulemaking for the IRR program, lack of implementation details, 
concerns over cooperation and data sharing, the need to avoid 
duplication, and the functionality of nationwide management systems for 
use at the BIA regional or tribal level. These comments are addressed 
below.
    Under this rule, responsibility for implementation of the 
nationwide management systems lies with the BIA, as the joint 
administrator of the IRR program. The rule also provides for the BIA to 
use IRR program funds to develop, maintain and operate the nationwide 
management systems. Tribal governments are not required to collect 
information or implement management systems, but have the option to do 
so. The development, maintenance and operation of management systems 
are an appropriate use of the IRR two percent planning and construction 
funds if an ITG has made the decision to implement tribal management 
systems.
    Implementation of the nationwide management systems is mandated by 
the TEA-21 for the FLMAs, including the BIA, by the TEA-21. This 
requirement is completely separate and unrelated to the negotiated 
rulemaking required by section 202(d) of title 23, U.S.C., for the 
development of policy, procedures and a funding distribution formula 
for the IRR program. The FHWA has proceeded with this rule to satisfy 
the specific requirement of the TEA-21 for the development and 
implementation of management systems for transportation facilities 
funded under the FLHP.
    Section 973.204(b) provides for the BIA and FHWA, in consultation 
with the Tribes, to develop implementation plans for each of the 
nationwide management systems. The implementation plans will include 
specific details regarding implementation of the nationwide management 
systems such as, but not limited to, overall goals and policies 
governing the management systems, each agency's responsibilities for 
developing and implementing the nationwide management systems, the 
implementation schedule, proposed data sources, and a cost estimate for 
implementing and operating the management systems. Development of the 
implementation plans will also provide an opportunity to address 
ongoing cooperation and data sharing, and ways to avoid duplication 
with other FLMAs, States and MPOs. Additionally, as the implementation 
plans are developed, goals, policies and strategies can be formulated 
to assure that the nationwide management systems have the required 
levels of functionality for use at both the BIA and tribal levels.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in section 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 final rule is not economically significant and does not 
concern an environmental risk to health and safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This final rule will not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13211 (Energy Effects)

    The FHWA has analyzed this action under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a significant 
energy action under that order because, although this action is 
considered to be a significant regulatory action under Executive Order 
12866, it is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

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.

[[Page 9499]]

List of Subjects in 23 CFR Part 973

    Bridges, Congestion management, Grant program--transportation, 
Highways and roads, Indian Reservation roads, Management systems, 
Pavement management, Public lands, Safety management, Transportation.

0
For reasons set forth in the preamble, the Federal Highway 
Administration amends chapter I of title 23, Code of Federal 
Regulations, as set forth below.

    Issued on: February 18, 2004.
Mary E. Peters,
Federal Highway Administrator.


0
1. Add a new part 973 to subchapter L to read as follows:

PART 973--MANAGEMENT SYSTEMS PERTAINING TO THE BUREAU OF INDIAN 
AFFAIRS AND THE INDIAN RESERVATION ROADS PROGRAM

Subpart A--Definitions
Sec.
973.100 Purpose.
973.102 Applicability.
973.104 Definitions.

Subpart B--Bureau of Indian Affairs Management Systems

973.200 Purpose.
973.202 Applicability.
973.204 Management systems requirements.
973.206 Funds for establishment, development and implementation of 
the systems.
973.208 Indian lands pavement management system (PMS).
973.210 Indian lands bridge management system (BMS).
973.212 Indian lands safety management system (SMS).
973.214 Indian lands congestion management system (CMS).

    Authority: 23 U.S.C. 204, 315, 42 U.S.C. 7410 et seq.; 49 CFR 
1.48.

Subpart A--Definitions


Sec.  973.100  Purpose.

    The purpose of this subpart is to provide definitions for terms 
used in this part.


Sec.  973.102  Applicability.

    The definitions in this subpart are applicable to this part, except 
as otherwise provided.


Sec.  973.104  Definitions.

    Alternative transportation systems means modes of transportation 
other than private vehicles, including methods to improve system 
performance such as transportation demand management, congestion 
management, and intelligent transportation systems. These mechanisms 
help reduce the use of private vehicles and thus improve overall 
efficiency of transportation systems and facilities.
    Elements means the components of a bridge important from a 
structural, user, or cost standpoint. Examples are decks, joints, 
bearings, girders, abutments, and piers.
    Federal Lands Highway program (FLHP) means a federally funded 
program established in 23 U.S.C. 204 to address transportation needs of 
Federal and Indian lands.
    Indian lands bridge management system (BMS) means a systematic 
process used by the Bureau of Indian Affairs (BIA) or Indian Tribal 
Governments (ITGs) for analyzing bridge data to make forecasts and 
recommendations, and provides the means by which bridge maintenance, 
rehabilitation, and replacement programs and policies may be 
efficiently considered.
    Indian lands congestion management system (CMS) means a systematic 
process used by the BIA or ITGs for managing congestion that provides 
information on transportation system performance and alternative 
strategies for alleviating congestion and enhancing the mobility of 
persons and goods to levels that meet Federal, State and local needs.
    Indian lands pavement management system (PMS) means a systematic 
process used by the BIA or ITGs that provides information for use in 
implementing cost-effective pavement reconstruction, rehabilitation, 
and preventive maintenance programs and policies, and that results in 
pavement designed to accommodate current and forecasted traffic in a 
safe, durable, and cost-effective manner.
    Indian lands safety management system (SMS) means a systematic 
process used by the BIA or ITGs with the goal of reducing the number 
and severity of traffic accidents by ensuring that all opportunities to 
improve roadway safety are identified, considered, implemented and 
evaluated, as appropriate, during all phases of highway planning, 
design, construction, operation and maintenance by providing 
information for selecting and implementing effective highway safety 
strategies and projects.
    Indian reservation road (IRR) means a public road that is located 
within or provides access to an Indian reservation or Indian trust land 
or restricted Indian land that is not subject to fee title alienation 
without the approval of the Federal government, or Indian and Alaska 
Native villages, groups, or communities in which Indians and 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 Roads (IRR) program means a part of the FLHP 
established in 23 U.S.C. 204 to address the transportation needs of 
federally recognized ITGs.
    Indian Reservation Roads transportation improvement program 
(IRRTIP) means a multi-year, financially constrained list by year, 
State, and tribe of IRR-funded projects selected by ITGs that are 
programmed for construction in the next 3 to 5 years.
    Indian Reservation Roads transportation plan means a document 
setting out a tribe's long-range transportation priorities and needs. 
The IRR transportation plan, which can be developed by either the tribe 
or the BIA on behalf of that tribe, is developed through the IRR 
transportation planning process pursuant to 23 U.S.C. 204 and 25 CFR 
part 170.
    Indian Tribal Government (ITG) means a duly formed governing body 
of an Indian or Alaska Native Tribe, Band, Nation, Pueblo, Village, or 
Community that the Secretary of the Interior acknowledges to exist as 
an Indian tribe pursuant to the Federally Recognized Indian Tribe List 
Act of 1994, 25 U.S.C. 479a.
    Indian tribe (tribe) means any Indian tribe, nation, band, pueblo, 
rancheria, colony, or community, including any Alaska Native Village, 
or regional or village corporation as defined or established under the 
Alaska Native Claims Settlement Act which is federally recognized by 
the U.S. government for special programs and services provided by the 
Secretary of the Interior to Indians because of their status as 
Indians.
    Intelligent transportation system (ITS) means electronics, 
communications, or information processing used singly or in combination 
to improve the efficiency and safety of a surface transportation 
system.
    Life-cycle cost analysis means an evaluation of costs incurred over 
the life of a project allowing a comparative analysis between or among 
various alternatives. Life-cycle cost analysis promotes consideration 
of total cost, to include maintenance and operation expenditures. 
Comprehensive life-cycle cost analysis includes all economic variables 
essential to the evaluation: Safety costs associated with maintenance 
and rehabilitation projects, agency capital cost, and life-cycle 
maintenance costs.
    Operations means those activities associated with managing, 
controlling, and regulating highway traffic.

[[Page 9500]]

    Secretary means the Secretary of Transportation.
    Serviceability means the degree to which a bridge provides 
satisfactory service from the point of view of its users.
    State means any one of the fifty States, the District of Columbia, 
or Puerto Rico.
    Transportation facilities means roads, streets, bridges, parking 
areas, transit vehicles, and other related transportation 
infrastructure.

Subpart B--Bureau of Indian Affairs Management Systems


Sec.  973.200  Purpose.

    The purpose of this subpart is to implement 23 U.S.C. 204 which 
requires the Secretary and the Secretary of each appropriate Federal 
land management agency to the extent appropriate, to develop by rule 
safety, bridge, pavement, and congestion management systems for roads 
funded under the FLHP.


Sec.  973.202  Applicability.

    The provisions in this subpart are applicable to the Bureau of 
Indian Affairs (BIA), the Federal Highway Administration (FHWA), and 
the Indian Tribal Governments (ITGs) that are responsible for 
satisfying these requirements for management systems pursuant to 23 
U.S.C. 204.


Sec.  973.204  Management systems requirements.

    (a) The BIA, in consultation with the tribes, shall develop, 
establish and implement nationwide pavement, bridge, and safety 
management systems for federally and tribally owned IRRs. The BIA may 
tailor the nationwide management systems to meet the agency's goals, 
policies, and needs, after considering the input from the tribes, and 
using professional engineering and planning judgment to determine the 
required nature and extent of systems coverage consistent with the 
intent and requirements of this rule.
    (b) The BIA and the FHWA, in consultation with the tribes, shall 
develop an implementation plan for each of the nationwide management 
systems. These plans will include, but are not limited to, the 
following: Overall goals and policies concerning the nationwide 
management systems, each agency's responsibilities for developing and 
implementing the nationwide management systems, implementation 
schedule, data sources, including the need to accommodate State and 
local data, and cost estimate.
    (c) Indian tribes may develop, establish, and implement tribal 
management systems under a self-determination contract or self-
governance annual funding agreement. The tribe may tailor the 
management systems to meet its goals, policies, and needs, using 
professional engineering and planning judgment to determine the 
required nature and extent of systems coverage consistent with the 
intent and requirements of this rule.
    (d) The BIA, in consultation with the tribes, shall develop 
criteria for cases in which tribal management systems are not 
appropriate.
    (e) The BIA, in consultation with the tribes, or the tribes under a 
self-determination contract or self-governance annual funding 
agreement, may incorporate data provided by States and local 
governments into the nationwide or tribal management systems, as 
appropriate, for State and locally owned IRRs.
    (f) The BIA, in consultation with the tribes, shall develop and 
implement procedures for the development, establishment, implementation 
and operation of nationwide management systems. If a tribe develops 
tribal management systems, the tribe shall develop and implement 
procedures for the development, establishment, implementation and 
operation of tribal management systems. The procedures shall include:
    (1) A description of each management system;
    (2) A process to operate and maintain the management systems and 
their associated databases;
    (3) A process for data collection, processing, analysis and 
updating for each management system;
    (4) A process for ensuring the results of the management systems 
are considered in the development of IRR transportation plans and 
transportation improvement programs and in making project selection 
decisions under 23 U.S.C. 204; and
    (5) A process for the analysis and coordination of all management 
systems outputs to systematically operate, maintain, and upgrade 
existing transportation assets cost-effectively;
    (g) All management systems shall use databases with a common or 
coordinated reference system that can be used to geolocate all database 
information.
    (h) Existing data sources may be used by the BIA and the tribes to 
the maximum extent possible to meet the management system requirements.
    (i) A nationwide congestion management system is not required. The 
BIA and the FHWA, in consultation with the tribes, shall develop 
criteria for determining when congestion management systems are 
required for BIA or tribal transportation facilities providing access 
to and within the Indian reservations. Either the tribes or the BIA, in 
consultation with the tribes, shall develop, establish and implement 
congestion management systems for the transportation facilities that 
meet the criteria.
    (j) The BIA shall develop an appropriate means to evaluate the 
effectiveness of the nationwide management systems in enhancing 
transportation investment decisions and improving the overall 
efficiency of the affected transportation systems and facilities. This 
evaluation is to be conducted periodically, preferably as part of the 
BIA planning process to assist the FHWA in evaluating the efficiency 
and effectiveness of the management systems as a component of the IRR 
program, and may include consultation with the tribes, as appropriate.
    (k) The management systems shall be operated so investment 
decisions based on management system outputs can be accomplished at the 
BIA region and tribal level and can be utilized throughout the 
transportation planning process.


Sec.  973.206  Funds for establishment, development, and implementation 
of the systems.

    The IRR program management funds may be used to accomplish 
nationwide management system activities. For tribal management system 
activities, the IRR two percent tribal transportation planning or 
construction funds may be used. (Refer to 23 U.S.C. 204(b) and 204(j)). 
These funds are to be administered in accordance with the procedures 
and requirements applicable to the funds.


Sec.  973.208  Indian lands pavement management system (PMS).

    In addition to the requirements provided in Sec.  973.204, the PMS 
must meet the following requirements:
    (a) The BIA shall have PMS coverage for all federally and tribally 
owned, paved IRRs included in the IRR inventory.
    (b) Where a tribe collects data for the tribe's PMS, the tribe 
shall provide the data to the BIA to be used in the nationwide PMS.
    (c) The nationwide and tribal PMSs may be based on the concepts 
described in the AASHTO's ``Pavement Management Guide.'' \1\
---------------------------------------------------------------------------

    \1\ ``Pavement Management Guide,'' AASHTO, 2001, is available 
for inspection as prescribed at 49 CFR part 7. It is also available 
from the American Association of State Highway and Transportation 
Officials (AASHTO), Publication Order Dept., P.O. Box 96716, 
Washington, DC 20090-6716 or online at http://www.transportation.org/publications/bookstore.nsf.

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[[Page 9501]]

    (d) The nationwide and tribal PMSs may be utilized at various 
levels of technical complexity depending on the nature of the pavement 
network. These different levels may depend on mileage, functional 
classes, volumes, loading, usage, surface type, or other criteria the 
BIA and ITGs deem appropriate.
    (e) A PMS shall be designed to fit the BIA's or tribes' goals, 
policies, criteria, and needs using the following components, at a 
minimum, as a basic framework for a PMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the PMS. The minimum PMS database shall include:
    (i) An inventory of the physical pavement features including the 
number of lanes, length, width, surface type, functional 
classification, and shoulder information;
    (ii) A history of project dates and types of construction, 
reconstruction, rehabilitation, and preventive maintenance. If some of 
the inventory or historic data is difficult to establish, it may be 
collected when preservation or reconstruction work is performed;
    (iii) A condition survey that includes ride, distress, rutting, and 
surface friction (as appropriate);
    (iv) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (v) Data for estimating the costs of actions.
    (2) A system for applying network level analytical procedures that 
are capable of analyzing data for all federally and tribally owned IRR 
in the inventory or any subset. The minimum analyses shall include:
    (i) A pavement condition analysis that includes ride, distress, 
rutting, and surface friction (as appropriate);
    (ii) A pavement performance analysis that includes present and 
predicted performance and an estimate of the remaining service life 
(performance and remaining service life to be developed with time); and
    (iii) An investment analysis that:
    (A) Identifies alternative strategies to improve pavement 
conditions;
    (B) Estimates costs of any pavement improvement strategy;
    (C) Determines maintenance, repair, and rehabilitation strategies 
for pavements using life cycle cost analysis or a comparable procedure;
    (D) Performs short and long term budget forecasting; and
    (E) Recommends optimal allocation of limited funds by developing a 
prioritized list of candidate projects over a predefined planning 
horizon (both short and long term).
    (f) For any roads in the inventory or subset thereof, PMS reporting 
requirements shall include, but are not limited to, percentage of roads 
in good, fair, and poor condition.


Sec.  973.210  Indian lands bridge management system (BMS).

    In addition to the requirements provided in Sec.  973.204, the BMS 
must meet the following requirements:
    (a) The BIA shall have a nationwide BMS for the federally and 
tribally owned IRR bridges that are funded under the FLHP and required 
to be inventoried and inspected under 23 CFR 650, subpart C, National 
Bridge Inspection Standards (NBIS).
    (b) Where a tribe collects data for the tribe's BMS, the tribe 
shall provide the data to the BIA to be used in the nationwide BMS.
    (c) The nationwide and tribal BMSs may be based on the concepts 
described in the AASHTO's ``Guidelines for Bridge Management Systems.'' 
\2\
---------------------------------------------------------------------------

    \2\ ``Guidelines for Bridge Management Systems,'' AASHTO, 1993, 
is available for inspection as prescribed at 49 CFR part 7. It is 
also available from the American Association of State Highway and 
Transportation Officials (AASHTO), Publication Order Dept., P.O. Box 
96716, Washington, DC 20090-6716 or online at http://www.transportation.org/publications/bookstore.nsf.
---------------------------------------------------------------------------

    (d) A BMS shall be designed to fit the BIA's or tribe's goals, 
policies, criteria, and needs using the following components, as a 
minimum, as a basic framework for a BMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the BMS. The minimum BMS database shall include:
    (i) The inventory data described by the NBIS (23 CFR part 650, 
subpart C);
    (ii) Data characterizing the severity and extent of deterioration 
of bridge components;
    (iii) Data for estimating the cost of improvement actions;
    (iv) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (v) A history of conditions and actions taken on each bridge, 
excluding minor or incidental maintenance.
    (2) A systematic procedure for applying network level analytical 
procedures that are capable of analyzing data for all bridges in the 
inventory or any subset. The minimum analyses shall include:
    (i) A prediction of performance and estimate of the remaining 
service life of structural and other key elements of each bridge, both 
with and without intervening actions; and
    (ii) A recommendation for optimal allocation of limited funds by 
developing a prioritized list of candidate projects over a predefined 
planning horizon (both short and long term).
    (e) The BMS may include the capability to perform an investment 
analysis (as appropriate, considering size of structure, traffic 
volume, and structural condition). The investment analysis may include 
the ability to:
    (1) Identify alternative strategies to improve bridge condition, 
safety and serviceability;
    (2) Estimate the costs of any strategies ranging from maintenance 
of individual elements to full bridge replacement;
    (3) Determine maintenance, repair, and rehabilitation strategies 
for bridge elements using life cycle cost analysis or a comparable 
procedure; and
    (4) Perform short and long term budget forecasting.
    (f) For any bridge in the inventory or subset thereof, BMS 
reporting requirements shall include, but are not limited to, 
percentage of non-deficient bridges.


Sec.  973.212  Indian lands safety management system (SMS).

    In addition to the requirements provided in Sec.  973.204, the SMS 
must meet the following requirements:
    (a) The BIA shall have a nationwide SMS for all federally and 
tribally owned IRR and public transit facilities included in the IRR 
inventory.
    (b) Where a tribe collects data for the tribe's SMS, the tribe 
shall provide the data to the BIA to be used in the nationwide SMS.
    (c) The nationwide and tribal SMS may be based on the guidance in 
``Safety Management Systems: Good Practices for Development and 
Implementation.'' \3\
---------------------------------------------------------------------------

    \3\ ``Safety Management Systems: Good Practices for Development 
and Implementation,'' FHWA and NHTSA, May 1996, may be obtained at 
the FHWA, Office of Safety, Room 3407, 400 Seventh St., SW., 
Washington, DC 20590, or electronically at http://safety.fhwa.dot.gov/media/documents.htm. It is available for 
inspection and copying as prescribed at 49 CFR part 7.
---------------------------------------------------------------------------

    (d) The BIA and ITGs shall utilize the SMSs to ensure that safety 
is considered and implemented as appropriate in all phases of 
transportation system planning, design, construction, maintenance, and 
operations.
    (e) The nationwide and tribal SMSs may be utilized at various 
levels of

[[Page 9502]]

complexity depending on the nature of the IRR facility involved.
    (f) An SMS shall be designed to fit the BIA's or ITG's goals, 
policies, criteria, and needs using, as a minimum, the following 
components as a basic framework for an SMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the SMS. The minimum SMS database shall include:
    (i) Accident records;
    (ii) An inventory of safety hardware including signs, guardrails, 
and lighting appurtenances (including terminals); and
    (iii) Traffic information including volume and vehicle 
classification (as appropriate).
    (2) Development, establishment and implementation of procedures 
for:
    (i) Routinely maintaining and upgrading safety appurtenances 
including highway-rail crossing warning devices, signs, highway 
elements, and operational features where appropriate;
    (ii) Routinely maintaining and upgrading safety features of transit 
facilities;
    (iii) Identifying and investigating hazardous or potentially 
hazardous transportation system safety problems, roadway locations and 
features; and
    (iv) Establishing countermeasures and setting priorities to correct 
the identified hazards and potential hazards.
    (3) A process for communication, coordination, and cooperation 
among the organizations responsible for the roadway, human, and vehicle 
safety elements;
    (4) Development and implementation of public information and 
education activities on safety needs, programs, and countermeasures 
which affect safety on the BIA's and ITG's transportation systems; and
    (5) Identification of skills, resources and training needs to 
implement safety programs for highway and transit facilities and the 
development of a program to carry out necessary training.
    (g) While the SMS applies to all federally and tribally owned IRRs 
in the IRR inventory, the extent of system requirements (e.g., data 
collection, analyses, and standards) for low volume roads may be 
tailored to be consistent with the functional classification of the 
roads. However, adequate requirements should be included for each BIA 
functional classification to provide for effective inclusion of safety 
decisions in the administration of transportation by the BIA and ITGs.
    (h) For any transportation facilities in the IRR inventory or 
subset thereof, SMS reporting requirements shall include, but are not 
limited to, the following:
    (1) Accident types such as right-angle, rear-end, left turn, head-
on, sideswipe, pedestrian-related, run-off-road, fixed object, and 
parked vehicle;
    (2) Accident severity per year measured as number of accidents with 
fatalities, injuries, and property damage only; and
    (3) Accident rates measured as number of accidents (fatalities, 
injuries, and property damage only) per 100 million vehicle miles of 
travel, number of accidents (fatalities, injuries, and property damage 
only) per 1000 vehicles, or number of accidents (fatalities, injuries, 
and property damage only) per mile.


Sec.  973.214  Indian lands congestion management system (CMS).

    (a) For purposes of this section, congestion means the level at 
which transportation system performance is no longer acceptable due to 
traffic interference. The BIA and the FHWA, in consultation with the 
tribes, shall develop criteria to determine when a CMS is to be 
implemented for a specific federally or tribally owned IRR 
transportation system that is experiencing congestion. Either the tribe 
or the BIA, in consultation with the tribe, shall consider the results 
of the CMS in the development of the IRR transportation plan and the 
IRRTIP, when selecting strategies for implementation that provide the 
most efficient and effective use of existing and future transportation 
facilities to alleviate congestion and enhance mobility.
    (b) In addition to the requirements provided in Sec.  973.204, the 
CMS must meet the following requirements:
    (1) For those BIA or tribal transportation systems that require a 
CMS, consideration shall be given to strategies that reduce private 
automobile travel and improve existing transportation system 
efficiency. Approaches may include the use of alternate mode studies 
and implementation plans as components of the CMS.
    (2) A CMS will:
    (i) Identify and document measures for congestion (e.g., level of 
service);
    (ii) Identify the causes of congestion;
    (iii) Include processes for evaluating the cost and effectiveness 
of alternative strategies;
    (iv) Identify the anticipated benefits of appropriate alternative 
traditional and nontraditional congestion management strategies;
    (v) Determine methods to monitor and evaluate the performance of 
the multi-modal transportation system; and
    (vi) Appropriately consider the following example categories of 
strategies, or combinations of strategies for each area:
    (A) Transportation demand management measures;
    (B) Traffic operational improvements;
    (C) Public transportation improvements;
    (D) ITS technologies; and
    (E) Additional system capacity.

[FR Doc. 04-4055 Filed 2-26-04; 8:45 am]
BILLING CODE 4910-22-U