Tribal Transportation Facility Bridge Program

<RULE> DEPARTMENT OF TRANSPORTATION <SUBAGY>Federal Highway Administration</SUBAGY> <CFR>23 CFR Part 661</CFR> <DEPDOC>[FHWA Docket No. FHWA-2019-0039]</DEPDOC> <RIN>RIN 2125-AF91</RIN> <SUBJECT>Tribal Transportation Facility Bridge Program</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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 transportation (State DOT) in the Federal-aid highway program. This change established consistent terminology for classifying and referring to bridge conditions. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective August 12, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Russell Garcia, P.E., Federal Lands Highway/Office of Tribal Transportation, <E T="03">Russell.Garcia@dot.gov,</E> (703) 404-6223, or Silvio Morales, Office of the Chief Counsel, <E T="03">Silvio.Morales@dot.gov,</E> (202) 366-1345, Federal Highway Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Electronic Access and Filing</HD> This document, the notice of proposed rulemaking (NPRM), and all comments received may be viewed online through the Federal eRulemaking portal at <E T="03">www.regulations.gov</E> 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: <E T="03">www.federalregister.gov</E> and the U.S. Government Publishing Office's website at: <E T="03">www.GovInfo.gov.</E> <HD SOURCE="HD1">Background</HD> <HD SOURCE="HD1">Legal Authority</HD> 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. <HD SOURCE="HD1">Discussion of Comments Received to the Notice of Proposed Rulemaking</HD> 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. <HD SOURCE="HD1">Section-by-Section Discussion</HD> (This discussion references the existing regulation, including prior nomenclature). <HD SOURCE="HD2">1. Who must comply with this regulation? (§ 661.3)</HD> 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. <HD SOURCE="HD2">2. What are the eligible activities for TTFBP funds? (§ 661.15)</HD> 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. <HD SOURCE="HD2">3. What are the criteria for bridge eligibility? (§ 661.17)</HD> The Standing Rock Sioux Tribe, Omaha Tribe, Oglala Sioux Tribe, and Cheyenne River Sioux Tribe recommended in § 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 § 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 § 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 § 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. <HD SOURCE="HD2">4. When is a bridge eligible for replacement? (§ 661.19)</HD> 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 § 661.17. <HD SOURCE="HD2">5. How will a bridge project be programmed for funding once eligibility has been determined? (§ 661.23)</HD> 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 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 § 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 § 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 f ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 52k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━