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Tribal Transportation Facility Bridge Program Publication: Federal Register Agency: Federal Highway Administration Byline: Shailen P. Bhatt Date: 12 July 2024 Subjects: American Government  , Roads & Highways
Topic: Interstate Highway System, United States Numbered Highways |
[Federal Register Volume 89, Number 134 (Friday, July 12, 2024)]
[Rules and Regulations]
[Pages 57078-57085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14933]
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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: Final rule.
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SUMMARY: This final rule amends 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 also removes
references to terms such as structurally deficient, functionally
obsolete, and sufficiency rating. These updates aligned the TTFBP
terminology for bridge conditions with the terminology used for State
departments of
[[Page 57079]]
transportation (State DOT) in the Federal-aid highway program. This
change established consistent terminology for classifying and referring
to bridge conditions.
DATES: This final rule is effective August 12, 2024.
FOR FURTHER INFORMATION CONTACT: Mr. Russell Garcia, P.E., Federal
Lands Highway/Office of Tribal Transportation, Russell.Garcia@dot.gov,
(703) 404-6223, or Silvio Morales, Office of the Chief Counsel,
Silvio.Morales@dot.gov, (202) 366-1345, Federal Highway Administration,
1200 New Jersey Avenue SE, Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document, the notice of proposed rulemaking (NPRM), 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 U.S.
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 (73 FR 15664, Mar. 25, 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 rule aligns the TTFBP terminology for
bridge conditions with the terminology used in the Federal-aid highway
program for State DOTs. This change establishes a consistent
terminology for classifying and referring to bridge conditions.
Discussion of Comments Received to the Notice of Proposed Rulemaking
The FHWA published its NPRM on April 04, 2023, at 88 FR 19571,
requesting comments to the proposed amendments. In response to the
NPRM, FHWA received comments from the Intertribal Transportation
Association (ITA), 1 Tribal consultant, 1 anonymous commenter, and from
12 Tribes: the Cheyenne River Sioux Tribe, Oglala Sioux Tribe, Omaha
Tribe, Chickasaw Nation, Forest County Potawatomi Community, Ho Chunk
Nation, Pueblo of Jemez, Nez Perce Tribe, Standing Rock Sioux Tribe,
Spirit Lake Tribe, Trinidad Rancheria, and the Spirit Lake Tribe. The
FHWA considered each of the comments in adopting this final rule.
Most of the comments received addressed several common issues.
These issues are addressed and discussed under the appropriate section
below. The remaining sections did not receive comments and will be
adopted as proposed.
Section-by-Section Discussion
(This discussion references the existing regulation, including
prior nomenclature).
1. Who must comply with this regulation? (Sec. 661.3)
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe recommended deleting ``and Tribal
Consortiums'' from this section.
The FHWA adopted this recommendation throughout the regulation
because the primary applicant is the Tribe.
2. What are the eligible activities for TTFBP funds? (Sec. 661.15)
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe recommended including the installation of
scour countermeasures in this section.
While scour countermeasures have always been an eligible activity
for TTFBP funds, FHWA adopts the recommendation to add an explicit
reference to the installation of scour countermeasures in this section
for clarity. Also, FHWA added safety inspection of in-service bridges
as part of eligible planning activities and clarified the inspection of
new or replacement Tribal Transportation Facility (TTF) bridges is for
construction inspection activity.
3. What are the criteria for bridge eligibility? (Sec. 661.17)
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe recommended in Sec. 661.17(a)(2) to add the
requirement that the Tribal transportation facility be in the National
Tribal Transportation Facility Inventory (NTTFI).
The FHWA does not believe the additional language is necessary
because it is covered by the Tribal transportation facility definition
in this regulation.
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe also recommended that Sec. 661.17(b)(1)
should allow design of a new bridge to begin without the bridge being
in the NTTFI, although they did not request changes to the proposed
regulatory text. They recommended that as long as the bridge project is
on a Tribal Transportation Improvement Plan (TTIP) and is approved by
the Tribal Council, it can be added to the NTTFI during design, and the
bridge must be classified as a Tribal transportation facility in the
NTTFI to be eligible for construction.
The FHWA agrees with this position and notes that nothing in Sec.
661.17(b)(1) would prohibit this interpretation. The FHWA does believe,
however, that the new bridge to be designed and constructed must be
within a route that is identified in the NTTFI. With respect to newly
funded bridges still in the design stage, Tribes should start the
process of recording the bridge in the NTTFI and not wait after it is
built.
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe also recommended that culverts be added to
the new proposed regulations as eligible projects.
The FHWA declines to adopt this proposal but notes that replacing
an existing culvert with a culvert that meets the definition of a TTF
bridge could be funded under the TTFBP as a new bridge.
Finally, FHWA has also removed references in Sec. 661.17(a)(1) and
(b)(2) to the length of the bridge opening and has replaced them with a
reference to the definition of TTF bridge to increase clarity.
4. When is a bridge eligible for replacement? (Sec. 661.19)
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe asked if any leftover TTFBP funds at the end
of the fiscal year could be used to fund bridges in fair condition.
The FHWA regulation does allow for fair condition bridges needing
geometric improvements to be eligible for funding as long as they meet
the criteria for bridge eligibility in Sec. 661.17.
5. How will a bridge project be programmed for funding once eligibility
has been determined? (Sec. 661.23)
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe recommended that Bureau of Indian Affairs
(BIA) owned bridges be a priority for funding and that new
[[Page 57080]]
bridges rank third in the ranking criteria after poor condition
bridges.
The FHWA recognizes the Tribes' interest in maximizing TTFBP funds
for BIA and Tribal TTF bridges and adopted this recommendation. Up to
80 percent of the funding made available for Preliminary Engineering
(PE) and construction in any fiscal year is eligible for use on BIA and
Tribally owned TTF bridges. The FHWA also adopted the recommendation
that new bridge construction be added to the ranking criteria for
funding. However, FHWA believes that it is most appropriate to add it
as the fourth ranking criteria so as to prioritize projects addressing
safety.
The FHWA has made three additional changes to the final rule text
to increase clarity. First, we replaced the phrase ``All projects will
be programmed for funding'' with the phrase ``All projects will be
ranked and prioritized for funding.'' The new language provides
consistency with the language in Sec. 661.23(b) and better describes
the implementation of the program. Second, we replaced the phrase ``low
load capacity bridges based on Operating Rating'' with the phrase
``operating rating for bridges in poor condition with lower operating
rating having precedence over higher operating rating''. The new
language provides clarity to use the operating rating as a ranking
criterion for poor condition bridges with the same condition rating.
Finally, we removed the numerical item numbers from the condition
rating item names in Sec. 661.23(d)(1). This change will reduce
confusion as FHWA transitions from the Recording and Coding Guide for
the Structure Inventory and Appraisal of the Nation's Bridges to the
Specifications for the National Bridge Inventory.
6. What does a complete application package for Preliminary Engineering
consist of and how does the project receive funding? (Sec. 661.25)
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe recommended that county- and State-owned
bridges' local match for the TTFBP be at 80 percent, and that the TTFBP
can only be the 20 percent local match to other funding. The Tribes
stated that county and State projects shall only be eligible for
funding given that they meet the requirements of 23 U.S.C. 202(f) and
that the obligation of Tribal Transportation Program (TTP) funds for a
project is supplementary to and not in lieu of the obligation of a fair
and equitable share of funds apportioned to the State.
The FHWA recognizes the Tribes' interest in maximizing TTFBP funds
for BIA and Tribal TTF bridges. Up to 80 percent of the funding made
available for PE and construction in any fiscal year is eligible for
use on BIA and Tribally owned TTF bridges. The remaining funding in any
fiscal year is made available for PE and construction for use on non-
BIA/non-Tribally owned TTF bridges. However, FHWA has removed the
minimum 20 percent local funding match requirement for non-BIA/non-
Tribally owned TTF bridges because Tribal bridge set aside funds from
the Bridge Formula Program (BFP) to carry out 23 U.S.C. 202(d) is 100
percent for all eligible TTF bridges. The statute controls the BFP
Tribal bridge set aside funds.
7. What does a complete application package for construction consist of
and how does the project receive funding? (Sec. 661.27)
The Nez Perce Tribe, Pueblo of Jemez, and the ITA support the
existing 20 percent match requirement for non-BIA/non-Tribal bridges.
As stated previously, FHWA has removed the minimum 20 percent local
funding match for non-BIA/non-Tribally owned TTF bridges because the
Tribal bridge set aside funds from the BFP to carry out 23 U.S.C.
202(d) is 100 percent for all eligible TTF bridges. The statute
controls the BFP Tribal bridge set aside funds.
8. How does ownership impact project selection? (Sec. 661.29)
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe strongly disagree with removing the phrase
``trust responsibilities'' from this section or any other parts of
these regulations stating that the Federal Government has a trust
responsibility to Native Americans which derives from Treaties,
Executive orders, case law, and Federal legislation.
The FHWA adopts the language as proposed. This section pertains
only to priority of project selection and does not discuss the trust
responsibility of the Federal Government.
9. What percentage of TTFBP Program funding is available for PE and
construction? (Sec. 661.33)
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe recommended to add a sentence at the end of
the paragraph indicating ``If construction funding does not use 85
percent of the funding the remaining funding may be used for PE.''
The FHWA recognizes the need for both PE and construction. At
various times during the fiscal year, FHWA will review the TTFBP
funding and may shift funds between PE and construction funds to
maximize the number of projects funded and the overall effectiveness of
the program.
10. What percentage of TTFBP funding is available for use on BIA and
Tribally owned TTF bridges, and non-BIA/non-Tribally owned TTF bridges?
(Sec. 661.35)
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe recommended funding all BIA and Tribally
owned bridges in the queue first and then BIA and Tribally owned
culverts. The Tribes recommended to use the remaining funds to cover
the non-BIA and non-Tribally owned bridges.
The FHWA recognizes the Tribes' interest in prioritizing the TTFBP
funds for BIA and Tribal TTF bridges. Up to 80 percent of the funding
made available for PE and construction in any fiscal year is eligible
for use on BIA and Tribally owned TTF bridges. The remaining funding in
any fiscal year is made available for PE and construction for use on
non-BIA/non-Tribally owned TTF bridges.
11. What are the funding limitations on individual TTFBP project?
(Sec. 661.37)
In the NPRM, FHWA was considering adjusting the funding limits for
PE in Sec. 661.37(a) and for PE and construction in Sec. 661.37(b)
because 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. The FHWA
specifically requested comments on whether these amounts should be
adjusted. Several Tribes made recommendations on the new funding
limits: the Standing Rock Sioux Tribe, Oglala Sioux Tribe, Omaha Tribe,
Cheyenne River Sioux Tribe, Chickasaw Nation, Forest County Potawatomi
Community, Nez Perce Tribe, Ho Chunk Nation, Jemez Pueblo, and Trinidad
Rancheria. In addition, comments were received from the ITA, Eastern
Region Tribes, LLC, and one anonymous comment.
While the commenters made a number of recommendations, since the
publication of the NPRM, FHWA has determined that the statutory
language addresses the issue of Federal share for funds set aside from
the BFP to carry out 23 U.S.C. 202(d). The Federal share associated
with the funds set aside from the BFP to carry out 23 U.S.C. 202(d) is
[[Page 57081]]
100 percent. Therefore, this section has been revised to eliminate the
funding limits for both PE and construction funds, as well as
eliminating the 20 percent local match requirement for non-BIA/non-
Tribally owned TTF bridges.
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe recommended a graduated percentage of
construction cost to encompass the work needed to reach preliminary
engineering (PE) estimated cost. Based on FHWA's experience with the
prior TTP Bridge Program, FHWA adopted this recommendation as set forth
in the fee scale below:
Estimated Construction Cost:
Up to $1,000,000--Use up to 20% for PE
$1,000,000 to $5,000,000--Use up to 15%-20% for PE
$5,000,000 to $10,000,000--Use up to 10%-15% for PE
Over $10,000,000--Use up to 10% for PE
12. What happens when TTFBP funds cannot be obligated by the end of the
fiscal year? (Sec. 661.45)
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe recommended not to return the unobligated
TTFBP funds to FHWA during August Redistribution unless the Tribes are
able to participate in that program.
The FHWA notes that the only TTFBP funds subject to August
Redistribution are the funds from the Highway Trust Fund. Unobligated
TTFBP funds from the General Fund will continue to be available until
their lapsing period.
13. Can TTFBP funds be spent on Interstate, State Highway, and Toll
Road TTF bridges? (Sec. 661.49)
The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and
Cheyenne River Sioux Tribe recommended to add ``as long as they are in
the NTTFI and meet the criteria of 23 U.S.C. 202(f).''
The FHWA declines to adopt the additional language for the reasons
discussed in Sec. 661.17.
14. What standards should be used for bridge design? (Sec. 661.53)
The FHWA revised this section to reference the design standards to
25 CFR part 170, subpart D, appendix B to be used for Sec. 661.53(a)
and (b).
15. Other
The Native Village of Ouzinkie has poor condition bridges that
carry pedestrian and all-terrain vehicle (ATV) traffic and wants these
bridges to be addressed, but they did not provide any proposed
regulatory recommendations for doing so.
The FHWA's TTFBP only funds TTF bridges that carry highway
vehicular traffic.\1\ While pedestrian and ATV bridges are not eligible
for funding under the TTFBP, FHWA encourages the commenter to pursue
other potential surface transportation funding sources available for
pedestrian and bicycle projects.\2\
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\1\ https://highways.dot.gov/federal-lands/programs-tribal/bridge/tribal-transportation-program-ttp-bridge-program-questions-answers-qas.
\2\ https://www.fhwa.dot.gov/environment/bicycle_pedestrian/funding/index.cfm.
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Rulemaking Analyses and Notices
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. This rule 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 action on
small entities and has determined that this action would not have a
significant economic impact on a substantial number of small entities.
This final rule amends 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 rule would not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). The
Unfunded Mandates Reform Act of 1995 (section 202(a)) requires agencies
to prepare a written statement, which includes estimates of anticipated
impacts, before proposing ``any rule that includes any Federal mandate
that may result in the expenditure by State, local, and Tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any 1 year.'' The
current threshold after adjustment for inflation is $177 million, using
the most current (2022) Implicit Price Deflator for the Gross Domestic
Product. 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.
Executive Order 13132 (Federalism Assessment)
The FHWA has analyzed this action in accordance with the principles
and criteria contained in E.O. 13132. The FHWA has determined that this
action would not have sufficient federalism implications to warrant the
preparation of a federalism assessment. The 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. The FHWA has determined that this action does not contain
collection of information requirements for the purposes of the PRA.
[[Page 57082]]
National Environmental Policy Act
The FHWA has analyzed this action for the purpose of the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and
has determined that it will not have any significant effect on the
quality of the environment and is categorically excluded under 23 CFR
771.117(c)(20), which applies to the promulgation of rules,
regulations, and directives. Categorically excluded actions meet the
criteria for categorical exclusions under the Council on Environmental
Quality regulations and under 23 CFR 771.117(a) and normally do not
require any further NEPA approvals by FHWA. The FHWA does not
anticipate any adverse environmental impacts from this rule; no unusual
circumstances are present under 23 CFR 771.117(b).
Executive Order 13175 (Tribal Consultation)
Prior to the publication of the NPRM, several appropriate meetings
and consultations with the Tribal governments were held in 2022 about
the TTFBP and the NPRM. The following meetings with the Tribes were
held:
1. Inter Tribal Council of Arizona (ITCA) Virtual Meeting, March
10, 2022.
2. Bureau of Indian Affairs (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 (USET) Virtual Meeting, July 19,
2022.
6. TTPCC Meeting in Lewiston, Idaho, August 9, 2022.
7. National Transportation in Indian Country Conference (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.
Consistent with E.O. 13175, Consultation and Coordination with
Indian Tribal governments, FHWA held four more Tribal consultation
meetings during the public comment period. A listening session was held
virtually on April 4, 2023. Three in-person meetings were held at three
different locations: on April 20, 2023, at the Department of the
Interior, National Indian Programs Training Center, Albuquerque, NM; on
May 17, 2023, at the Great Northern Jerome Hill Theater, St. Paul, MN;
and on May 18, 2023, at the Northwest Region Transportation Symposium,
Northern Quest Resort and Casino, Airway Heights, WA. The comments
submitted by Tribes through the docket and provided by Tribes at the
consultation meetings noted above were considered during the
development of this rulemaking.
Executive Order 12898 (Environmental Justice)
The 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. The FHWA has
determined that this rule does not raise any environmental justice
issues.
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 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.
Rulemaking Summary, 5 U.S.C. 553(b)(4)
As required by 5 U.S.C. 553(b)(4), a summary of this rule can be
found in the Abstract section of the Department's Unified Agenda entry
for this rulemaking at [https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2125-AF91].
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.
Shailen P. Bhatt,
Administrator, Federal Highway Administration.
0
In consideration of the foregoing, FHWA revises 23 CFR part 661 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 part 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 Tribal
Transportation Facility Bridge Program (TTFBP).
[[Page 57083]]
Sec. 661.3 Who must comply with this regulation?
Tribes must comply with this regulation in applying for TTFBP funds
for planning, design, engineering, pre-construction, construction, and
inspection of new or replacement Tribal Transportation Facility (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 structures defined as
highway bridges located on all public roads, on and off Federal-aid
highways, including Tribally owned and federally owned bridges, private
bridges that are connected to a public road on both ends of the bridge,
temporary bridges, and bridges under construction with portions open to
traffic, 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 (including safety inspection of in-
service bridges), design, engineering, preconstruction, construction,
and construction 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;
(c) To implement countermeasures, including scour countermeasures,
for TTF bridges classified as scour critical or 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) Must meet the definition of a TTF bridge;
(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 that meets the definition of a TTF bridge
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,
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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 ranked and prioritized for funding after a
completed application package is received and 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) Operating rating for bridges in poor condition with lower
operating rating having precedence over higher operating rating;
(3) Bridges on school bus routes;
(4) New bridge construction;
(5) Bypass detour length;
(6) Annual average daily traffic; and
(7) 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
(Deck Condition Rating, Superstructure Condition Rating, Substructure
Condition Rating) is 7, 8, or 9, the bridge will be classified as good.
When the rating of the NBI item for a culvert (Culvert Condition
Rating) 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.
(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 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 and a Tribal resolution supporting
the project.
(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 the Secretary of the Interior upon
availability of program funding at FHWA.
Sec. 661.29 How does ownership impact project selection?
(a) 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.
(b) 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?
(a) 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.
(b) At various times during the fiscal year, FHWA will review the
TTFBP funding and may shift funds between PE and construction funds to
maximize the number of projects funded and the overall effectiveness of
the program.
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
[[Page 57085]]
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) There are no funding limitations on an individual TTF bridge
application, but the PE estimated cost will be based on the following
fee scale:
Estimated Construction Cost:
Up to $1,000,000--Use up to 20% for PE
$1,000,000 to $5,000,000--Use up to 15%-20% for PE
$5,000,000 to $10,000,000--Use up to 10%-15% for PE
Over $10,000,000--Use up to 10% for PE
(b) Requests for additional funds for PE or construction 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 structures 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.
(b) Rehabilitation. Bridges to be rehabilitated, at a minimum,
should conform to the standards referenced in 25 CFR part 170, subpart
D, appendix B.
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 through 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. 2024-14933 Filed 7-11-24; 8:45 am]
BILLING CODE 4910-22-P