[Federal Register Volume 88, Number 63 (Monday, April 3, 2023)]
[Proposed Rules]
[Pages 19571-19578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06490]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 88, No. 63 / Monday, April 3, 2023 / Proposed 
Rules  

[[Page 19571]]



DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 661

[FHWA Docket No. FHWA-2019-0039]
RIN 2125-AF91


Tribal Transportation Facility Bridge Program

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: This proposed rule would update the existing Tribal 
Transportation Program Bridge Program, formerly known as the Indian 
Reservation Road (IRR) Bridge Program, by renaming it the Tribal 
Transportation Facility Bridge Program (TTFBP) to comply with the 
changes made in the Moving Ahead for Progress in the 21st Century Act 
(MAP-21), carried on through the Fixing America's Surface 
Transportation (FAST) Act, and the recent changes made by the 
Bipartisan Infrastructure Law (BIL), enacted as the Infrastructure 
Investment and Jobs Act (IIJA). It would also remove references to 
terms such as structurally deficient, functionally obsolete, and 
sufficiency rating. These updates would align the TTFBP terminology for 
bridge conditions with the terminology used for State departments of 
transportation (State DOT) in the Federal-aid highway program. This 
change would establish a consistent terminology for classifying and 
referring to bridge conditions.

DATES: Comments must be received on or before June 2, 2023. Late-filed 
comments will be considered to the extent practicable.
    Consistent with Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments, the FHWA will hold four 
public information, education, and consultation meetings during the 
public comment period to explain the rule, answer questions, and take 
oral testimony. While a court reporter will document these meetings, 
attendees are encouraged to submit written public comments. Three 
meetings will be held in or near Indian country at the locations listed 
below and a fourth meeting will be held virtually. Additional 
information on the meetings may be found at https://highways.dot.gov/federal-lands/programs-tribal/bridge. FHWA will hold meetings on the 
following dates and locations:
    1. April 4th, 2023, 2-3 p.m. EST, Virtual Listening Session by 
Webinar, https://highways.dot.gov/federal-lands/programs-tribal/webinars; Telephone: +1 551 285 1373; Meeting ID: 161 207 5615; 
Passcode: 042703.
    2. April 20th, 2023, 9-11 a.m. MDT, Department of the Interior 
University, National Indian Programs Training Center, Albuquerque, NM.
    3. May 17th, 2023, 9-11 a.m. CST, Great Northern Jerome Hill 
Theater, St. Paul, MN.
    4. May 18th, 2023, 2-4 p.m. PDT, Northwest Region Transportation 
Symposium, Northern Quest Resort and Casino, Airway Heights, WA.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit them by only one of the following means:
     Federal eRulemaking Portal: Go to www.regulations.gov and 
follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor 
Room W12-140, Washington, DC 20590;
     Hand Delivery: West Building Ground Floor, Room W12-140, 
1200 New Jersey Ave. SE, Washington, DC 20590, between 9 a.m. 5 p.m., 
e.t., Monday through Friday, except Federal holidays. The telephone 
number is (202) 366-9329;
     Instructions: You must include the agency name and docket 
number or the Regulatory Identification Number (RIN) for the rulemaking 
at the beginning of your comments. All comments received will be posted 
without change to www.regulations.gov, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: Mr. Russell Garcia, P.E., Federal 
Lands Highway/Office of Tribal Transportation, [email protected], 
(703) 404-6223, or Michelle Andotra, Office of the Chief Counsel, 
[email protected], (404) 562-3679, Federal Highway 
Administration, 60 Forsyth Street SW, Suite 8M5, Atlanta, GA 30303.

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing

    This document and all comments received may be viewed online 
through the Federal eRulemaking portal at www.regulations.gov using the 
docket number listed above. Electronic retrieval help and guidelines 
are available on the website. It is available 24 hours each day, 365 
days each year. An electronic copy of this document may also be 
downloaded by accessing the Office of the Federal Register's website 
at: www.federalregister.gov and the Government Publishing Office's 
website at: www.GovInfo.gov.

Background

Legal Authority

    This regulatory action is necessary to update 23 CFR part 661 to 
reflect the changes made to the program since the last regulatory 
update in 2008. These changes are largely nomenclature changes to the 
existing regulation that FHWA has been implementing under 23 U.S.C. 
202(d), and do not substantively change the TTFBP. Importantly, this 
proposed rule would align the TTFBP terminology for bridge conditions 
with the terminology used in the Federal-aid highway program for State 
DOTs. This change would establish a consistent terminology for 
classifying and referring to bridge conditions. In addition, this 
proposed rule would update the name of the program to TTFBP in every 
place where it formally appeared. Other proposed non-substantive 
changes to each section are outlined in the section-by-section 
discussion below.
    Section-by-Section Discussion of the Proposed Amendments--(This 
discussion references the existing regulation, including prior 
nomenclature).

Sec.  661.3 Who must comply with this regulation?

    The regulation applies to all Tribal Transportation Facility (TTF) 
bridges. FHWA proposes to delete the structurally deficient and 
functionally obsolete language to align the TTFBP

[[Page 19572]]

terminology for bridge conditions with the terminology used for State 
DOTs in the Federal-aid highway program. The remaining terminology used 
in this section is consistent with 23 CFR part 490, subpart D, National 
Performance Management Measures for Assessing Bridge Condition. Thus, 
this change would establish a consistent terminology for classifying 
and referring to bridge conditions. Also, FHWA proposes to delete the 
term ``Public Authorities'' and replace it with the term ``Tribes and 
Tribal Consortiums,'' as the eligible applicants under this program and 
covered by this regulation.

Sec.  661.5 What definitions apply to this regulation?

    FHWA proposes to delete the following definitions: functionally 
obsolete, Indian Reservation Road (IRR), IRR bridge, life cycle cost 
analysis, Public Authority, structurally deficient, structure inventory 
and appraisal sheet, and sufficiency rating because these terms are no 
longer used in this regulation. Also, FHWA proposes to add the 
definitions of National Bridge Inventory (NBI), National Tribal 
Transportation Facility Inventory (NTTFI), operating rating, 
rehabilitation, replacement, Tribal Transportation Facility (TTF), and 
TTF bridge because this regulation uses these terms as qualifiers for 
projects.

Sec.  661.9 What is the total funding available for the IRRBP?

    FHWA proposes to replace the specific funding amounts with a more 
generalized statement due to the complex nature of the funding for the 
TTFBP. The TTFBP website, www.highways.dot.gov/federal-lands/programs-tribal/bridge will provide additional information as the funds are made 
available.

Sec.  661.15 What are the eligible activities for IRRBP funds?

    To provide a consistent means of classifying and referring to 
bridge conditions between the TTFBP and 23 CFR part 490, subpart D, 
FHWA proposes to delete the phrases ``structurally deficient'' and 
``functionally obsolete'' and substitute ``are in poor condition, have 
low load capacity, or need highway geometric improvements'' to align 
the TTFBP terminology for bridge conditions with the terminology used 
for State DOTs in the Federal-aid highway program. The remaining 
terminology used in this section is consistent with 23 CFR part 490, 
subpart D. Thus, this change would establish a terminology for 
classifying and referring to bridge conditions. Also, FHWA proposes to 
incorporate the eligibility requirements of 23 U.S.C. 202(d), as 
amended by BIL.

Sec.  661.17 What are the criteria for bridge eligibility?

    This section would delete the requirement for bridges to ``be 
located on an IRR that is included in the IRR Inventory'' to be 
consistent with the new Tribal Transportation Program (TTP) terminology 
used with 25 CFR part 170. To provide a consistent means of classifying 
and referring to bridge conditions, FHWA also proposes to delete the 
``structurally deficient'' and ``functionally obsolete'' criterion and 
substitute a condition criterion that the bridge ``be classified as in 
poor condition.'' This would align the TTFBP terminology for bridge 
conditions with the terminology used for State DOTs in the Federal-aid 
highway program. The remaining terminology in this section is 
consistent with 23 CFR part 490, subpart D. Thus, this change would 
establish a consistent terminology for classifying and referring to 
bridge conditions. FHWA also proposes to add the ``low load capacity'' 
and ``need highway geometric improvements'' criteria, which would apply 
to bridges that are ``classified in poor condition, have a low load 
capacity, or need highway geometric improvements,'' in lieu of the 
``structurally deficient or functionally obsolete'' classification set 
forth in paragraph 23 CFR 661.17(a)(3) of the existing regulations. 
FHWA also proposes to clarify the new criteria for bridge eligibility 
for new bridge construction. While the BIL adds eligibility for new 
bridge construction at 23 U.S.C. 202(d)(2)(A), the amendments at 23 
U.S.C. 202(d)(1) and (3) also require bridges to be classified in poor 
condition, have a low load capacity, or needing geometric improvements. 
Since new bridges do not have a condition classification, a load 
capacity, or a need for geometric improvements, FHWA proposes to 
clarify that projects for new bridge construction do not need to meet 
this criterion. Further, FHWA proposes to delete paragraph (b) in the 
existing section, as the 10-year rule for bridge replacement or 
rehabilitation is now obsolete in the Federal-aid highway program.

Sec.  661.19 When is a bridge eligible for replacement?

    The funding eligibility criteria set forth in 23 U.S.C. 202(d)(3), 
requires that a bridge: (A) have an opening of not less than 20 feet; 
(B) be classified as a tribal transportation facility; and (C) be 
structurally deficient or functionally obsolete. For consistency with 
the terminology used in 23 CFR part 490, subpart D, FHWA proposes to 
interpret the eligibility requirements for replacement under 23 U.S.C. 
202(d)(3)(C) to mean that a bridge must be in poor condition, have low 
load capacity, or need highway geometric improvements. The proposed 
regulatory text reflects this interpretation. The ``poor condition'' 
classification would be consistent with 23 CFR part 490, subpart D. The 
new ``low load capacity'' and ``need highway geometric improvements'' 
criteria would align with the ``functionally obsolete'' classification 
in the existing regulations.

Sec.  661.21 When is a bridge eligible for rehabilitation?

    The eligibility criteria in 23 U.S.C. 202(d)(3) provide, as set 
forth above, that bridges must be either structurally deficient or 
functionally obsolete to be eligible to receive funding. However, for 
consistency with the terminology used in 23 CFR part 490 subpart D, 
FHWA proposes to interpret the eligibility requirements for 
rehabilitation under 23 U.S.C. 202(d)(3)(C) to mean that a bridge must 
be in poor or fair condition, have low load capacity, or need highway 
geometric improvements. FHWA proposes regulatory text consistent with 
this interpretation. The poor or fair condition criterion is a 
classification consistent with 23 CFR part 490, subpart D. The new 
``low load capacity'' and ``need highway geometric improvements'' 
criteria would align with the ``functionally obsolete'' classification 
in the existing regulations.

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

    The eligibility criteria set forth in 23 U.S.C. 202(d)(3) provide, 
among other things, that bridges must be either structurally deficient 
or functionally obsolete to receive funding. However, consistent with 
the terminology used in 23 CFR part 490, subpart D, FHWA proposes to 
substitute the bridge sufficiency rating criterion and the bridge 
status criterion of ``structurally deficient'' and ``functionally 
obsolete'' with a condition rating of ``good,'' ``fair,'' or ``poor.'' 
FHWA proposes to use these condition ratings as the criteria for 
ranking and prioritizing the bridge projects in the queue for funding, 
together with the existing criteria set forth in 23 CFR 661.23(b)(3)-
(6).
    In the proposed paragraph (a), FHWA refers to ``non-BIA/non-
tribally owned'' instead of ``non-BIA owned.'' In the proposed 
paragraph (b)(2), FHWA replaces the existing criteria language with 
``Low load capacity bridges based

[[Page 19573]]

on Operating Rating.'' In paragraphs (b)(5) and (b)(6), FHWA proposes 
to change the criteria based on an annual average so that they would 
refer to annual average daily traffic and annual truck daily traffic, 
respectively. These changes are consistent with the National Bridge 
Inventory (NBI). Also, FHWA proposes to define the criteria for rating 
a bridge as being in poor, fair, and good condition, consistent with 23 
CFR part 490, subpart D. These criteria are proposed to be included in 
a new paragraph (d).

Sec.  661.25 What does a complete application package for Preliminary 
Engineering consist of and how does the project receive funding?

    FHWA proposes to reorganize this provision. Proposed paragraph (a) 
would list the elements of a complete application package for 
preliminary engineering (PE) in numbered subparagraphs (a)(1)-(6), 
including two proposed changes. In subparagraph (a)(5), FHWA proposes 
to replace the existing Structure Inventory and Appraisal (SI&A) 
requirement with a requirement for National Bridge Inventory (NBI) 
data, which shows the condition rating of the bridge. In subparagraph 
(a)(6), FHWA proposes to add a requirement for an acknowledgment by the 
Tribe of the project specific funding requirements and that any excess 
funds would be returned to FHWA for further distribution. This 
statement is consistent with the existing and proposed 23 CFR 661.41.
    Proposed paragraph (b) would be unchanged except that it would 
refer to ``non-BIA/non-tribally owned TTF bridges'' instead of ``non-
BIA IRR bridges.'' FHWA proposes to split the two statements in 
existing paragraph (c) to clarify in proposed paragraphs (c) and (d) 
that both items are necessary for a complete application. Lastly, FHWA 
proposes to redesignate existing paragraph (d) as paragraph (e) and to 
replace the reference to ``an FHWA/Tribal agreement'' with a reference 
to ``a TTP Program Agreement between FHWA and a Tribal Government or 
Consortium.''

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

    FHWA proposes to reorganize this provision. Proposed paragraph (a) 
would list the elements of a complete application package for 
construction in numbered subparagraphs, including the following 
proposed changes. In subparagraph (a)(3), FHWA proposes to replace the 
existing SI&A sheet requirement with a requirement for NBI data. FHWA 
proposes to relocate to subparagraph (a)(5) the provision that all 
environmental and archeological clearances and complete grants of 
public rights-of-way must be acquired prior to submittal of the 
construction application package. FHWA also proposes to add 
subparagraph (a)(6), which would require that a complete application 
package for construction include an acknowledgment by the Tribe of the 
project specific funding requirements and that any excess funds will be 
returned to FHWA for further distribution. This statement is consistent 
with the existing and proposed 23 CFR 661.41.
    In addition, FHWA proposes to move the additional application 
package requirements from existing paragraph (a) to a new paragraph (b) 
and refer to ``non-BIA/non-tribally owned TTF bridges'' instead of 
``non-BIA IRR bridges.'' FHWA proposes to split the two statements in 
existing paragraph (b) into proposed paragraphs (c) and (d) to clarify 
that both items are necessary for a complete application. In proposed 
paragraph (d), FHWA refers to ``TTF bridge projects'' instead of 
``IRRBP projects.'' Finally, FHWA proposes to move existing paragraph 
(c) to a new paragraph (e) and replace the reference to ``an FHWA/
Tribal agreement'' with a reference to ``Tribes, under a TTP Program 
Agreement between FHWA and a Tribal Government or Consortium, or the 
Secretary of the Interior upon availability of program funding at 
FHWA.''

Sec.  661.29 How does ownership impact project selection?

    FHWA proposes to refer ``non-BIA/non-tribally owned TTF bridges'' 
instead of ``non-BIA owned IRR bridges.'' Also, FHWA proposes to modify 
the first sentence of the section to remove language regarding ``trust 
responsibilities,'' as this section pertains to priority of project 
selection.

Sec.  661.31 Do IRRBP projects have to be listed on an approved IRR 
TIP?

    FHWA proposes to refer to ``FHWA TTP TIP'' instead of ``TTP TIP.'' 
Also, FHWA proposes to add a statement that TTF bridge projects 
included in the TTP TIP that are not fiscally constrained may still be 
included as a list of projects dependent upon the availability of 
additional resources also known as an ``illustrative list.''

Sec.  661.35 What percentage of IRRBP funding is available for use on 
BIA and Tribally owned IRR bridges, and non-BIA owned IRR bridges?

    FHWA proposes to refer ``non-BIA/non-tribally owned TTF bridges'' 
instead of ``non-BIA owned IRR bridges.''

Sec.  661.37 What are the funding limitations on individual IRRBP 
projects?

    FHWA is considering an adjustment to the funding limits for PE in 
paragraph (a) and for PE and construction in paragraph (b). The 
existing funding limits established by the 2008 final rule have not 
kept pace with increased costs in the last 15 years and adjustment may 
be necessary to allow increased flexibility. FHWA specifically requests 
comments on whether these amounts should be adjusted, the extent of any 
needed adjustment, and the experience of stakeholders in navigating 
these funding limitations. Data justifying commenter recommendations is 
specifically requested.

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

    FHWA proposes to add ``from the Highway Trust Fund'' as the funds 
described in this section subject to August Redistribution for any 
unobligated funds.

Sec.  661.47 Can bridge maintenance be performed with IRRBP funds?

    The existing regulation cites a number of maintenance activities as 
examples of ineligible uses of IRRBP funds. FHWA proposes to add the 
modifier ``routine'' to bridge maintenance repairs on this list of 
ineligible uses of TTFBP funds.

Sec.  661.49 Can IRR Bridge Program funds be spent on Interstate, State 
Highway, and Toll Road IRR bridges?

    FHWA proposes to add County, City, and Township TTF bridges as 
eligible for funding under the TTFBP if those bridges are eligible 
Tribal transportation facilities.

Sec.  661.53 What standards should be used for bridge design?

    In paragraph (a), FHWA proposes to add ``New'' for the design 
standards to be used for new bridges.

Sec.  661.55 How are BIA and Tribal owned IRR bridges inspected?

    FHWA proposes to add ``in-service'' to refer the inspection to in-
service TTF bridges. Also, FHWA proposes to change the section 
references to the BIA regulations codified at 25 CFR part 170

[[Page 19574]]

pertaining to in-service TTF bridge inspections, because the sections 
referenced in our existing regulations no longer exist and have been 
renumbered. The outdated section references FHWA proposes to remove are 
25 CFR 170.504-170.507. The new section references FHWA proposes to 
include are 25 CFR 170.513-170.514. See BIA, Tribal Transportation 
Program Final Rule, 81 FR 78456 (Nov. 7, 2016). This is an 
administrative update and not a change to the requirements to bridge 
inspections.

Sec.  661.57 How is a list of deficient bridges to be generated?

    FHWA proposes to delete this section because it is not relevant to 
the purpose of this regulation as stated in Sec.  661.1, to prescribe 
policies for project selection and fund allocation procedures for 
administering the TTFBP.

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

    FHWA proposes to reference 25 CFR 170.114(a)(1) which generally 
sets forth health and safety restrictions. Also, because of the 
elimination of Sec.  661.57 of the existing regulation, FHWA proposes 
to change this section number from Sec.  661.59 to Sec.  661.57.

Rulemaking Analyses and Notices

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

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Rulemaking 
Policies and Procedures

    The Office of Management and Budget (OMB) has not designated this 
rule a significant regulatory action under section 3(f) of Executive 
Order (E.O.) 12866. Accordingly, OMB has not reviewed it. This action 
complies with E.O.s 12866 and 13563 to improve regulation. It is 
anticipated that the economic impact of this rulemaking would be 
minimal and that the benefits would outweigh the costs. The proposed 
changes are largely administrative and are expected to provide 
clarification of the existing regulations, including by removing 
outdated references. While it is not possible to quantify potential 
costs and benefits, FHWA expects that by making the terminology used in 
the TTFBP regulations consistent with that used in the Federal-aid 
highway program, the proposed changes will reduce confusion and 
facilitate implementation of the TTFBP. The proposed changes would not 
adversely affect, in a material way, any sector of the economy. In 
addition, these changes would not interfere with any action taken or 
planned by another agency and would not materially alter the budgetary 
impact of any entitlements, grants, user fees, or loan programs. 
Consequently, a full regulatory evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), FHWA has evaluated the effects of this proposed 
action on small entities and has determined that the proposed action 
would not have a significant economic impact on a substantial number of 
small entities. This proposed action would amend the existing 
regulations pursuant to Section 1119 of MAP-21, Section 1118 of the 
FAST Act, and Sections 11118, 14004, and Division J of the BIL, and 
would not fundamentally alter the funding available for the replacement 
or rehabilitation of TTF bridges in poor condition. For these reasons, 
FHWA certifies that this action would not have a significant economic 
impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This proposed rule would not result in the expenditure by State, local, 
and Tribal governments, in the aggregate, or by the private sector, of 
$155 million or more in any one year (2 U.S.C. 1532). In addition, the 
definition of ``Federal mandate'' in the Unfunded Mandates Reform Act 
excludes financial assistance of the type in which State, local, or 
Tribal governments have authority to adjust their participation in the 
program in accordance with changes made in the program by the Federal 
Government. The Federal-aid highway program permits this type of 
flexibility. Further, in compliance with the Unfunded Mandates Reform 
Act of 1995, FHWA will evaluate any regulatory action that might be 
proposed in subsequent stages of the proceeding to assess the effects 
on State, local, Tribal governments, and the private sector.

Executive Order 13132 (Federalism Assessment)

    FHWA has analyzed this NPRM in accordance with the principles and 
criteria contained in E.O. 13132. FHWA has determined that this action 
would not have sufficient federalism implications to warrant the 
preparation of a federalism assessment. FHWA has also determined that 
this action would not preempt any State law or State regulation or 
affect the States' ability to discharge traditional State governmental 
functions.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities apply to this program. 
Local entities should refer to the Catalog of Federal Domestic 
Assistance Program Number 20.205, Highway Planning and Construction, 
for further information.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal Agencies must obtain approval from OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. FHWA has determined that this action does not contain 
collection of information requirements for the purposes of the PRA.

National Environmental Policy Act

    FHWA has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.), 
and has determined that this action would not have a significant effect 
on the quality of the environment and qualifies for the categorical 
exclusion at 23 CFR 771.117(c)(20).

Executive Order 13175 (Tribal Consultation)

    This NPRM is largely technical and non-substantive. However, FHWA 
and BIA met with approximately 80 federally recognized Tribes at the 
National Transportation in Indian Country Conference (NTICC) in Big 
Sky, Montana, on September 18, 2019, and at the BIA Providers 
Conference in Anchorage, Alaska, on December 4,

[[Page 19575]]

2019, to advise and receive input on this proposed rule in the TTFBP 
regulations.
    As an update to the NPRM to include the BIL revisions, several 
appropriate meetings and consultations with the Tribal Governments were 
held again in 2022 about the TTFBP and the NPRM. The following meetings 
with the Tribes were held:
    1. Inter Tribal Council of Arizona Virtual Meeting, March 10, 2022.
    2. BIA Alaska Provider's Conference Virtual Meeting, April 6, 2022.
    3. Tribal Transportation Program Coordinating Committee (TTPCC) 
Meeting in Albuquerque, New Mexico, May 17, 2022.
    4. Intertribal Transportation Association (ITA) Virtual Meeting, 
June 29, 2022.
    5. United South and Eastern Tribes Virtual Meeting, July 19, 2022.
    6. TTPCC Meeting in Lewiston, Idaho, August 9, 2022.
    7. NTICC Meeting in Louisville, Kentucky, August 25, 2022.
    8. BIA Alaska Provider's Conference in Anchorage, Alaska, November 
30, 2022.
    9. ITA Meeting in Las Vegas, Nevada, December 7, 2022.
    FHWA and BIA will continue to discuss the proposed rule with the 
Tribal Governments and the TTPCC. The TTPCC is the committee 
established by Federal regulations at 25 CFR 170.135 to provide input 
and recommendations on the TTP to FHWA and BIA. It helps to develop the 
TTP policies and procedures, and also supplements Government-to-
Government consultation by coordinating and obtaining input from 
Tribes, BIA, and FHWA. The TTPCC consists of 2 representatives from 
each of the 12 BIA regions, along with 2 non-voting Federal 
representatives (one each from BIA and FHWA).
    Consistent with Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments, the FHWA will hold four 
public information, education, and consultation meetings during the 
public comment period to explain the rule, answer questions, and take 
oral testimony. While a court reporter will document these meetings, 
attendees are encouraged to submit written public comments. Three 
meetings will be held in or near Indian country at the locations listed 
below and a fourth meeting will be held virtually. Additional 
information on the meetings may be found at https://highways.dot.gov/federal-lands/programs-tribal/bridge. FHWA will hold meetings on the 
following dates and locations:
    1. April 4th, 2023, 2-3 p.m. EST, Virtual Listening Session by 
Webinar, https://highways.dot.gov/federal-lands/programs-tribal/webinars; Telephone: +1 551 285 1373; Meeting ID: 161 207 5615; 
Passcode: 042703.
    2. April 20th, 2023, 9-11 a.m. MDT, Department of the Interior 
University, National Indian Programs Training Center, Albuquerque, NM.
    3. May 17th, 2023, 9 -11 a.m. CST, Great Northern Jerome Hill 
Theater, St. Paul, MN.
    4. May 18th, 2023, 2- 4 p.m. PDT, Northwest Region Transportation 
Symposium, Northern Quest Resort and Casino, Airway Heights, WA.
    FHWA will fully consider Tribal views in the development of the 
final rule in this matter.

Executive Order 12898 (Environmental Justice)

    E.O. 12898 requires that each Federal Agency make achieving 
environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations. FHWA has 
determined that this proposed rule does not raise any environmental 
justice issues.

Regulation Identification Number

    An 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 spring and fall of each year. 
The RIN contained in the heading of this document can be used to cross 
reference this action with the Unified Agenda.

List of Subjects in 23 CFR Part 661

    Bridges, Highways and roads, Indians.

    Issued under authority delegated in 49 CFR 1.81, 1.84, and 1.85 on:

Andrew Rogers,
Deputy Administrator, Federal Highway Administration.

    In consideration of the foregoing, FHWA proposes to revise part 661 
of title 23, Code of Federal Regulations to read as follows:

PART 661--TRIBAL TRANSPORTATION FACILITY BRIDGE PROGRAM (TTFBP)

Sec.
661.1 What is the purpose of this regulation?
661.3 Who must comply with this regulation?
661.5 What definitions apply to this regulation?
661.7 What is the TTFBP?
661.9 What is the total funding available for the TTFBP?
661.11 When do TTFBP funds become available?
661.13 How long are these funds available?
661.15 What are the eligible activities for TTFBP funds?
661.17 What are the criteria for bridge eligibility?
661.19 When is a bridge eligible for replacement?
661.21 When is a bridge eligible for rehabilitation?
661.23 How will a bridge project be programmed for funding once 
eligibility has been determined?
661.25 What does a complete application package for PE consist of 
and how does the project receive funding?
661.27 What does a complete application package for construction 
consist of and how does the project receive funding?
661.29 How does ownership impact project selection?
661.31 Do TTF bridge projects have to be listed on an approved TTP 
TIP?
661.33 What percentage of TTFBP funding is available for PE and 
construction?
661.35 What percentage of TTFBP funding is available for use on BIA 
and tribally owned TTF bridges, and for non-BIA/non-tribally owned 
TTF bridges?
661.37 What are the funding limitations on an individual TTF bridge 
project?
661.39 How are project cost overruns funded?
661.41 After a bridge project has been completed (either PE or 
construction) what happens with the excess or surplus funding?
661.43 Can other sources of funds be used to finance a queued 
project in advance of receipt of TTFBP funds?
661.45 What happens when TTFBP funds cannot be obligated by the end 
of the fiscal year?
661.47 Can routine bridge maintenance be performed with TTFBP funds?
661.49 Can TTFBP funds be spent on Interstate, State Highway, 
County, City, Township, and Toll Road TTF bridges?
661.51 Can TTFBP funds be used for the approach roadway to a bridge?
661.53 What standards should be used for bridge design?
661.55 How are BIA and Tribal owned in-service TTF bridges 
inspected?
661.57 What should be done with a BIA and Tribal bridge in poor 
condition if the Indian Tribe does not support the project?

    Authority:  23 U.S.C. 120(j) and (k), 202, and 315; 49 CFR 1.81, 
1.84, 1.85, 23 CFR 490 Subpart D.


Sec.  661.1  What is the purpose of this regulation?

    The purpose of this regulation is to prescribe policies for project 
selection and fund allocation procedures for administering the TTFBP.

[[Page 19576]]

Sec.  661.3  Who must comply with this regulation?

    Tribes and Tribal Consortiums must comply with this regulation in 
applying for TTFBP funds for planning, design, engineering, pre-
construction, construction, and inspection of new or replacement TTF 
bridges classified as in poor condition, having low load capacity, or 
needing geometric improvements.


Sec.  661.5  What definitions apply to this regulation?

    The following definitions apply to this regulation:
    Approach roadway means the portion of the highway immediately 
adjacent to the bridge that affects the geometrics of the bridge, 
including the horizontal and vertical curves and grades required to 
connect the existing highway alignment to the new bridge alignment 
using accepted engineering practices and ensuring that all safety 
standards are met.
    Construction engineering (CE) is the supervision, inspection, and 
other activities required to ensure the project construction meets the 
project's approved acceptance specifications, including but not limited 
to: additional survey staking functions considered necessary for 
effective control of the construction operations; testing materials 
incorporated into construction; checking shop drawings; and 
measurements needed for the preparation of pay estimates.
    National Bridge Inventory (NBI) means an FHWA database containing 
bridge information and inspection data for all highway bridges on 
public roads, on and off Federal-aid highways, including tribally owned 
and federally owned bridges, that are subject to the National Bridge 
Inspection Standards.
    National Tribal Transportation Facility Inventory (NTTFI) means at 
a minimum, transportation facilities that are eligible for assistance 
under the TTP as defined in 25 CFR 170.5.
    Operating Rating means the maximum permissible live load to which 
the structure may be subjected for the load configuration used in the 
load rating. Allowing unlimited numbers of vehicles to use the bridge 
at operating level may shorten the life of the bridge.
    Plans, specifications and estimates (PS&E) means construction 
drawings, compilation of provisions, and construction project cost 
estimates for the performance of the prescribed scope of work.
    Preliminary engineering (PE) means planning, survey, design, 
engineering, and preconstruction activities (including archaeological, 
environmental, and right-of-way activities) related to a specific 
bridge project.
    Public road means any road or street under the jurisdiction of and 
maintained by a public authority and open to public travel.
    Rehabilitation means major work required to restore the structural 
integrity of a bridge, as well as work necessary to correct major 
safety defects. FHWA Bridge Preservation Guide, Spring 2018 Edition.
    Replacement means total replacement of an existing bridge with a 
new facility constructed in the same general traffic corridor. FHWA 
Bridge Preservation Guide, Spring 2018 Edition.
    Tribal Transportation Facility (TTF) means a public highway, road, 
bridge, trail, transit system, or other approved facility that is 
located on or provides access to Tribal land and appears on the NTTFI.
    TTF bridge means a structure located on the NTTFI, including 
supports, erected over a depression or an obstruction, such as water, a 
highway, or a railway, and having a track or passageway for carrying 
traffic or other moving loads, and having an opening measured along the 
center of the roadway of more than 20 feet between undercopings of 
abutments or spring lines of arches, or extreme ends of the openings 
for multiple boxes; it may also include multiple pipes, where the clear 
distance between openings is less than half of the smaller contiguous 
opening.


Sec.  661.7  What is the TTFBP?

    The TTFBP, as established under 23 U.S.C. 202(d), is a nationwide 
priority program for improving TTF bridges classified as in poor 
condition, having low load capacity, or needing geometric improvements.


Sec.  661.9  What is the total funding available for the TTFBP?

    The funding source and amount is specified by law, which is subject 
to change. Due to the complex nature of the funding for the TTFBP, 
please refer to the applicable statute and applicable FHWA guidance, 
which can be found on the FHWA's TTFBP website.


Sec.  661.11  When do TTFBP funds become available?

    TTFBP funds are authorized at the start of each fiscal year but are 
subject to Office of Management and Budget apportionment before they 
become available to FHWA for further distribution.


Sec.  661.13  How long are these funds available?

    TTFBP funds for each fiscal year are available for obligation for 
the year authorized plus 3 years (a total of 4 years).


Sec.  661.15  What are the eligible activities for TTFBP funds?

    TTFBP funds can be used: (a) to carry out any planning, design, 
engineering, preconstruction, construction, and inspection of new or 
replacement TTF bridges;
    (b) to replace, rehabilitate, seismically retrofit, paint, apply 
calcium magnesium acetate, sodium acetate/formate, or other 
environmentally acceptable, minimally corrosive anti-icing and deicing 
composition; or
    (c) to implement any countermeasure for TTF bridges classified as 
in poor condition, having a low load capacity, or needing geometric 
improvements, including multiple-pipe culverts; or
    (d) to demolish the old bridge if a bridge is replaced under the 
TTFBP.


Sec.  661.17  What are the criteria for bridge eligibility?

    (a) For bridge replacement or rehabilitation, TTF bridges are 
required to meet the following:
    (1) have an opening of 20 feet or more;
    (2) be classified as a Tribal transportation facility;
    (3) be classified as in poor condition, have low load capacity, or 
need highway geometric improvements;
    (4) be recorded in the NBI maintained by FHWA.
    (b) For new bridge construction, TTF bridges are required to meet 
the following:
    (1) be classified as a Tribal transportation facility;
    (2) be a public bridge with opening of 20 feet or more, and 
recorded in the NBI after project completion.


Sec.  661.19  When is a bridge eligible for replacement?

    To be eligible for replacement, a TTF bridge must be in poor 
condition, have low load capacity, or need highway geometric 
improvements.


Sec.  661.21  When is a bridge eligible for rehabilitation?

    To be eligible for rehabilitation, a TTF bridge must be in poor or 
fair condition, have low load capacity, or need highway geometric 
improvements.


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

    (a) All projects will be programmed for funding after a completed 
application package is received and

[[Page 19577]]

accepted by FHWA. At that time, the project will be acknowledged as 
either BIA and tribally owned, or non-BIA/non-tribally owned and placed 
in either a PE or a construction queue.
    (b) All projects will be ranked and prioritized based on the 
following criteria:
    (1) bridge condition with bridges in poor condition, having 
precedence over bridges in fair condition, and bridges in fair 
condition having precedence over bridges in good condition.
    (2) low load capacity bridges based on Operating Rating;
    (3) bridges on school bus routes;
    (4) bypass detour length;
    (5) annual average daily traffic; and
    (6) annual average daily truck traffic.
    (c) Queues will carryover from fiscal year to fiscal year as made 
necessary by the amount of annual funding made available.
    (d) TTF bridges will be classified as good, fair, or poor based on 
the following criteria:
    (1) Good: When the lowest rating of the 3 NBI items for a bridge 
(Items 58--Deck, 59--Superstructure, 60--Substructure) is 7, 8, or 9, 
the bridge will be classified as good. When the rating of the NBI item 
for a culvert (Item 62-Culvert) is 7, 8, or 9, the culvert will be 
classified as good.
    (2) Fair: When the lowest rating of the three NBI items for a 
bridge is 5 or 6, the bridge will be classified as fair. When the 
rating of the NBI item for a culvert is 5 or 6, the culvert will be 
classified as fair.
    (3) Poor: When the lowest rating of the three NBI items for a 
bridge is 4, 3, 2, 1, or 0, the bridge will be classified as poor. When 
the rating of the NBI item for a culvert is 4, 3, 2, 1, or 0, the 
culvert will be classified as poor. A poor condition bridge with a 
lower condition rating will have precedence over a poor condition 
bridge with a higher condition rating.


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

    (a) A complete application package for PE consists of the 
following:
    (1) the certification checklist,
    (2) Tribal Transportation Program (TTP) transportation improvement 
program (TIP),
    (3) project scope of work,
    (4) detailed cost for PE,
    (5) NBI data, and
    (6) an acknowledgment by the Tribe of the project specific funding 
requirements and that any excess funds will be returned to FHWA for 
further distribution.
    (b) For non-BIA/non-tribally owned TTF bridges, the application 
package must also include a Tribal resolution supporting the project 
and identification of the required minimum 20 percent local funding 
match.
    (c) Incomplete application packages will be disapproved and 
returned for revision and resubmission along with an explanation 
providing the reason for disapproval.
    (d) The TTF bridge projects for PE will be placed in the queue and 
determined as eligible for funding after receipt by FHWA of a complete 
application package.
    (e) Funding for the approved eligible projects on the queues will 
be made available to the Tribes, under a TTP Program agreement between 
FHWA and a Tribal Government or Consortium or the Secretary of the 
Interior upon availability of program funding at FHWA.


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

    (a) A complete application package for construction consists of the 
following:
    (1) a copy of the approved PS&E,
    (2) the certification checklist,
    (3) NBI data,
    (4) the TTP TIP,
    (5) all environmental and archeological clearances and complete 
grants of public rights-of-way that must be acquired prior to submittal 
of the construction application package, and
    (6) an acknowledgment by the Tribe of the project specific funding 
requirements and that any excess funds will be returned to FHWA for 
further distribution.
    (b) For non-BIA/non-tribally owned TTF bridges, the application 
package must also include a copy of a letter from the bridge's owner 
approving the project and its PS&E, a Tribal resolution supporting the 
project, and identification of the required minimum 20 percent local 
funding match.
    (c) Incomplete application packages will be disapproved and 
returned for revision and resubmission along with an explanation 
providing the reason for disapproval.
    (d) The TTF bridge projects for construction will be placed in the 
queue and determined as eligible for funding after receipt by FHWA of a 
complete application package.
    (e) Funding for the approved eligible projects in the queues will 
be made available to the Tribes, under a TTP Program Agreement between 
FHWA and a Tribal Government or Consortium, or the Secretary of the 
Interior upon availability of program funding at FHWA.


Sec.  661.29  How does ownership impact project selection?

    Primary consideration will be given to eligible projects on BIA and 
tribally owned TTF bridges. A smaller percentage of available funds 
will be set aside for non-BIA/non-tribally owned TTF bridges, since 
States and counties have access to Federal-aid and other funding to 
design, replace, and rehabilitate their bridges.
    The program policy will be to maximize the number of TTF bridges 
participating in the TTFBP in a given fiscal year regardless of 
ownership.


Sec.  661.31  Do TTF bridge projects have to be listed on an approved 
TTP TIP?

    Yes. All TTF bridge projects must be listed on an approved FHWA TTP 
TIP. TTF bridge projects included in the TTP TIP that are not fiscally 
constrained may still be included as a list of projects dependent upon 
the availability of additional resources, also known as an 
``illustrative list.''


Sec.  661.33  What percentage of TTFBP funding is available for PE and 
construction?

    Up to 15 percent of the funding made available in any fiscal year 
will be eligible for PE. The remaining funding in any fiscal year will 
be available for construction.


Sec.  661.35  What percentage of TTFBP funding is available for use on 
BIA and tribally owned TTF bridges, and for non-BIA/non-tribally owned 
TTF bridges?

    (a) Up to 80 percent of the available funding made available for PE 
and construction in any fiscal year will be eligible for use on BIA and 
tribally owned TTF bridges. The remaining funding in any fiscal year 
will be made available for PE and construction for use on non-BIA/non-
tribally owned TTF bridges.
    (b) At various times during the fiscal year, FHWA will review the 
projects awaiting funding and may shift funds between BIA and tribally 
owned, and non-BIA/non-tribally owned bridge projects to maximize the 
number of projects funded and the overall effectiveness of the program.


Sec.  661.37  What are the funding limitations on an individual TTF 
bridge project?

    The following funding provisions apply in administration of the 
TTFBP:
    (a) An eligible BIA/tribally owned TTF bridge is eligible for 100 
percent TTFBP funding, with a $150,000 maximum limit for PE.
    (b) An eligible non-BIA/non-tribally owned TTF bridge is eligible 
for up to 80 percent TTFBP funding, with a $150,000 maximum limit for 
PE and

[[Page 19578]]

$1,000,000 maximum limit for construction. The minimum 20 percent local 
match will need to be identified in the application package. TTP 
construction funds received by a Tribe may be used as the local match.
    (c) Requests for additional funds above the referenced thresholds 
may be submitted along with proper justification to FHWA for 
consideration. The request will be considered on a case-by-case basis. 
There is no guarantee for the approval of the request for additional 
funds.


Sec.  661.39  How are project cost overruns funded?

    (a) A request for additional TTFBP funds for cost overruns on a 
specific bridge project must be submitted to Bureau of Indian Affairs 
Division of Transportation (BIADOT) and FHWA for approval. The written 
submission must include a justification, an explanation as to why the 
overrun occurred, and the amount of additional funding required with 
supporting cost data. If approved by FHWA and BIADOT, the request will 
be placed at the top of the appropriate queue (with a contract 
modification request having a higher priority than a request for 
additional funds for a project award) and funding may be provided if 
available.
    (b) Project cost overruns may also be funded out of the Tribe's 
regular TTP construction funding.


Sec.  661.41  After a bridge project has been completed (either PE or 
construction) what happens with the excess or surplus funding?

    Since the funding is project specific, once a bridge design or 
construction project has been completed under this program, any excess 
or surplus funding is returned to FHWA for use on additional approved 
TTF bridge projects.


Sec.  661.43  Can other sources of funds be used to finance a queued 
project in advance of receipt of TTFBP funds?

    Yes. A Tribe can use other sources of funds, including TTP 
construction funds, on a project that has been approved for funding and 
placed on the queue and then be reimbursed when TTFBP funds become 
available. If TTP construction funds are used for this purpose, the 
funds must be identified on an FHWA approved TTP TIP prior to their 
expenditure.


Sec.  661.45  What happens when TTFBP funds cannot be obligated by the 
end of the fiscal year?

    The TTFBP funds from the Highway Trust Fund (HTF) provided to a 
project that cannot be obligated by the end of the fiscal year are to 
be returned to FHWA during August redistribution. The returned funds 
will be re-allocated to the BIA the following fiscal year after FHWA 
receives and accepts a formal request for the funds from BIA, which 
includes a justification for the amounts requested and the reason for 
the failure of the prior year obligation.


Sec.  661.47  Can routine bridge maintenance be performed with TTFBP 
funds?

    No. Routine bridge maintenance repairs, e.g., guard rail repair, 
repair of traffic control devices, striping, cleaning scuppers, deck 
sweeping, snow and debris removal, etc., are not eligible uses of TTFBP 
funding. The U.S. Department of the Interior's annual allocation for 
maintenance as well as TTP construction funds are eligible funding 
sources for routine bridge maintenance.


Sec.  661.49  Can TTFBP funds be spent on Interstate, State Highway, 
County, City, Township, and Toll Road TTF bridges?

    Yes. Interstate, State Highway, County, City, Township, and Toll 
Road TTF bridges are eligible for funding as described in Sec.  
661.37(b).


Sec.  661.51  Can TTFBP funds be used for the approach roadway to a 
bridge?

    Yes, costs associated with approach roadway work, as defined in 
Sec.  661.5 are eligible. Long approach fills, causeways, connecting 
roadways, interchanges, ramps, and other extensive earth structures, 
when constructed beyond an attainable touchdown point, are not eligible 
uses of TTFBP funds.


Sec.  661.53  What standards should be used for bridge design?

    (a) New and Replacement--New and replacement structure must meet 
the current geometric, construction and structural standards required 
for the types and volumes of projected traffic on the facility over its 
design life consistent with 25 CFR part 170, subpart D, Appendix B and 
23 CFR part 625.
    (b) Rehabilitation--Bridges to be rehabilitated, at a minimum, 
should conform to the standards of 23 CFR part 625, Design Standards 
for Federal-aid Highways, for the class of highway on which the bridge 
is a part.


Sec.  661.55  How are BIA and Tribally owned in-service TTF bridges 
inspected?

    The BIA and tribally owned in-service TTF bridges are inspected in 
accordance with 25 CFR 170.513-170.514.


Sec.  661.57  What should be done with a BIA and Tribal bridge in poor 
condition if the Indian Tribe does not support the project?

    The restrictions set forth in 25 CFR 170.114(a)(1) shall apply.

[FR Doc. 2023-06490 Filed 3-31-23; 8:45 am]
BILLING CODE 4910-22-P