[Federal Register Volume 65, Number 31 (Tuesday, February 15, 2000)]
[Rules and Regulations]
[Pages 7431-7434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3512]
[[Page 7431]]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 170
RIN 1076-AD99
Distribution of Fiscal Year 2000 Indian Reservation Roads Funds
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Temporary Rule and Request for Comments.
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SUMMARY: We are issuing a temporary rule requiring that we distribute
one-half of the Fiscal Year 2000 Indian Reservation Roads (IRR) funds
to projects on or near Indian reservations using the Relative Need
Formula adopted in 1993. We are also requesting comments on the formula
for distribution of the remaining portion of the Fiscal Year 2000
funds. After consideration of comments, we will issue a final rule for
distribution of the remaining portion of the Fiscal Year 2000 IRR
funds.
DATES: This temporary rule is effective on February 15, 2000. Comments
on the formula for distribution of the remaining portion of the Fiscal
Year 2000 IRR funds must be postmarked by March 16, 2000.
ADDRESSES: You may send comments on the formula for distribution of the
remaining portion of the Fiscal Year 2000 IRR funds to: LeRoy Gishi,
Chief, Division of Transportation, Office of Trust Responsibility,
Bureau of Indian Affairs, 1849 C Street, NW, MS-4058-MIB, Washington,
DC 20240. Mr. Gishi may also be reached at 202-208-4359 (phone), 202-
208-4696 (fax), or [email protected] (electronic mail).
FOR FURTHER INFORMATION CONTACT: LeRoy Gishi, 202-208-4359.
SUPPLEMENTARY INFORMATION:
Background
What Is the IRR Program?
Indian Reservation Roads (IRR) are typically among the most poorly
maintained roads in the nation, in great need of development and
repair. Many tribes do not even have road systems. This creates great
difficulty in meeting everyday needs such as busing school students or
getting medical attention for the sick and elderly. Tribes are
dependent on timely distribution of IRR funds to develop and complete
construction on projects started in previous years, especially since
weather and time can cause damage to a partially completed project or
prevent a project from being started and since many tribes will be
moving into rainy seasons in the near future. The inability to enter
construction contracts in a timely fashion further delays and hinders a
tribe's ability to provide for its transportation needs.
The IRR program is jointly administered by the Bureau of Indian
Affairs (BIA) and the Federal Lands Highway office (FLH) of the Federal
Highway Administration. The IRR program governs the planning, design,
construction, maintenance and general administrative responsibility for
IRR. The duties of each agency under the IRR program are set forth in a
Memorandum of Agreement between the two agencies. In brief, the BIA
works with tribal governments and tribal organizations to develop an
annual priority program of construction projects which is submitted to
the FLH for review and approval. Each fiscal year FLH determines the
amount of funds available for construction. Then, the FLH and the BIA
develop an IRR program funding plan for the fiscal year. Funds are
allocated from the FLH to the BIA and distributed by the Secretary of
the Interior (Secretary) to IRR projects on or near Indian
reservations. Since 1993, IRR funds have been distributed according to
the Relative Need Formula.
What Is the Relative Need Formula?
The Relative Need Formula is the method by which we have
distributed IRR funds each fiscal year for IRR projects in each of the
BIA's twelve regions. The Relative Need Formula we are adopting in this
temporary rule is based on 20 percent population, 30 percent vehicle
miles traveled (average daily traffic multiplied by the total miles in
the IRR system), and 50 percent cost-to-improve roads in the IRR
system. It will be used to compute the percentage of Highway Trust
Funds we distribute to our Regional Offices for use on approved
projects in a uniform, equitable manner based on the relative needs of
the various Indian reservations. The Relative Need Formula ranks road
and bridge improvements by the estimated cost to bring roads and
bridges located within or providing access to an Indian reservation to
an adequate and safe standard. We have used this funding formula since
it was generally accepted by tribes and approved in 1993.
What Is the Status of the TEA-21 Rule Making Process?
In 1998, Congress passed the Transportation Equity Act for the 21st
Century (TEA-21), Pub. L.105-178. Under TEA-21, the Secretary must
issue regulations governing the IRR program and establish a formula
distributing IRR funds for Fiscal Year (FY) 2000 and subsequent years.
The Secretary must develop the regulations and funding formula through
the use of a negotiated rulemaking process and must issue them by
September 1999.
Accordingly, the Secretary established the TEA-21 Negotiated
Rulemaking Committee (Committee). As required by TEA-21, tribal
representation on the Committee reflects a balance of interests
including: geographically diverse small, medium and large tribes;
direct service, self-determination and self-governance tribes; and
tribes with various levels and types of experience in the diverse
concerns of transportation development and management. The Committee
consists of 29 tribal representatives and 13 Federal members.
The Committee has met monthly since March 1999 in locations that
permit the greatest attendance and participation by tribal members.
Among the earliest actions of the Committee was to divide into four
workgroups to address the broad areas of concern for the IRR program:
the Technical Standards workgroup, the Delivery of Services workgroup,
the Policy workgroup and the Funding Formula workgroup. Each of the
workgroups works closely with the full Committee to identify specific
problems and develop a regulation and formula to address those
problems. Despite the diligence of the Committee, it was unable until
recently to reach a consensus on a funding formula that would permit
the distribution of IRR funds for FY 2000. As a result, there has been
no mechanism in place for the distribution of funds during FY 2000.
Recognizing that an inability to distribute IRR funds (totaling
approximately $200 million for FY 2000) causes undue hardship to
tribes, the Committee reached a consensus at its January 2000 meeting
in Albuquerque, New Mexico, concerning the distribution of funds. The
Committee recommended that for FY 2000, the Secretary should distribute
funds to IRR projects according to the Relative Need Formula as used in
FY 1998 and 1999 (the same formula adopted in 1993 and described
above). This recommendation reflects the consensus of the Committee's
tribal representatives who are in the best position to articulate what
is acceptable to the tribes. Federal members of the Committee agreed to
the recommendation, as it allows us to distribute needed money and
permits the Federal government to fulfill its duties under the IRR
program. This recommendation is consistent with the
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TEA-21 requirement that the Secretary distribute funds according to a
formula recommended by the Committee. Moreover, it frees the Committee
to continue its work toward a final formula and regulations.
This temporary rule will allow the Secretary to distribute one-half
of FY 2000 IRR funds according to the Relative Need Formula. As noted
above, the temporary rule is effective on the publication of this
notice. We are also requesting comments from the public regarding the
distribution of the remainder of FY 2000 IRR funds. The Committee will
also use those comments in its continuing work towards a final formula
for future fiscal years.
Why Does the Secretary Need To Publish This Temporary Rule in the
Federal Register?
With the Committee's consensus on the tribal Committee members'
proposal to distribute FY 2000 IRR funds using the Relative Need
Formula, the Secretary is proceeding with this temporary rule to ensure
distribution of FY 2000 IRR funds during this fiscal year. Tribes
depend on continued funding during their planned one-to-three year road
and bridge construction projects. There are approximately 950 ongoing
road and bridge construction projects on over 25,000 road miles and 740
bridges on or near Indian reservations that will not continue without
FY 2000 funding. This temporary rule allows the Secretary to continue
to fund the IRR program to provide safe and adequate bridges and road
access to and within Indian reservations, Indian lands and communities
by distributing funds through FY 2000. Furthermore, the Committee and
the Secretary agreed to use the Relative Need Formula to distribute
these funds because both the tribes and the BIA understand its use and
because there is currently no potentially effective and reasonably
feasible alternative formula.
Why Does This Temporary Rule Not Allow For Notice and Comment on the
Distribution of One-Half of the FY 2000 IRR Funds, and Why Is It
Effective Immediately?
Under 5 U.S.C. 553(b)(3)(B), notice and public procedure on this
temporary rule are impracticable, unnecessary, and contrary to the
public interest. In addition, we have good cause for making this rule
effective immediately under 5 U.S.C. 553(d)(3). Notice and public
procedure would be impracticable because of the urgent need to
distribute the first half of the FY 2000 IRR funds. Approximately 950
road and bridge construction projects are at various phases that depend
on this fiscal year's funds, including 169 deficient bridges and the
construction of approximately 400 miles of roads. The FY 2000 IRR funds
would be used to design, plan, and construct improvements (and, in some
cases, to reconstruct bridges). Designing and planning improvements
must take place before the construction season (which is very short for
some of the reservations) begins in the next few months.
Waiting for notice and comment on this temporary rule would be
contrary to the public interest. In some of our Regions, approximately
80 percent of the roads in the IRR system (and the majority of the
bridges) are designated school bus routes. Roads are essential access
to schools, jobs, and medical services. Many of the priority tribal
roads are also emergency evacuation routes and represent the only
access to tribal lands. Two-thirds of the road miles in Indian country
are unimproved roads. Deficient bridges and roads are health and safety
hazards. Partially constructed road and bridge projects jeopardize the
health and safety of the traveling public. Further, over 200 current
projects (for which funding would be jeopardized by waiting) are
directly associated with environmental protection and preservation of
historic and cultural properties. This temporary rule is going into
effect immediately because of the urgent need for these construction
projects and the short time available for planning and construction.
Under this temporary rule, we are distributing only one-half of the
FY 2000 IRR funds to address the most urgent needs while allowing for
public comment on distribution of the other half of the FY 2000 IRR
funds. In addition, the Committee is working on a permanent formula,
which if adopted by the Secretary will be subject to full public notice
and comment before we promulgate it as a final rule.
Clarity of This Temporary Rule
Executive Order 12866 requires each agency to write regulations
that are easy to understand. In addition to the comments requested
above, we invite your comments on how to make this temporary rule
easier to understand, including answers to questions such as the
following: (1) Are the requirements in the temporary rule clearly
stated? (2) Does the temporary rule contain technical language or
jargon that interferes with its clarity? (3) Does the format of the
temporary rule (grouping and order of sections, paragraphing, etc.) aid
or reduce its clarity? (4) Is the description of the temporary rule in
the SUPPLEMENTARY INFORMATION section of the preamble helpful in
understanding the temporary rule? What else could we do to make the
temporary rule easier to understand?
Regulatory Planning and Review (E.O. 12866)
Under the criteria in Executive Order 12866, this temporary rule is
a significant regulatory action, and the Office of Management and
Budget has reviewed it, because it will have an annual effect of $100
million or more on the economy. As noted above, the total amount of FY
2000 IRR funds is approximately $200 million, $100 million of which we
would distribute to IRR projects under this temporary rule. Congress
has already appropriated these funds and FLH has already allocated them
to BIA. The cost to the government of distributing the IRR funds,
especially under the Relative Need Formula with which the tribal
governments and tribal organizations and the BIA are already familiar,
is therefore negligible. The distribution of the IRR funds does not
require the tribal governments and tribal organizations to expend any
of their own funds; in fact, distribution of the IRR funds is a
benefit. Approximately 950 road and bridge construction projects are at
various phases that depend on this fiscal year's funds, including 169
deficient bridges and the construction of approximately 400 miles of
roads. Leaving these projects unfunded in FY 2000 would create undue
hardship on tribes and tribal members. Lack of funding would also pose
safety threats by leaving partially constructed road and bridge
projects to jeopardize the health and safety of the traveling public.
Thus, the benefits of this rule far outweigh the costs.
This temporary rule conforms to the policies and practices that
currently guide our distribution of IRR funds. We do not anticipate
that this regulation will have a significant effect on which IRR
projects are eligible for funding. It will not adversely affect in a
material way the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities. This temporary rule simply adopts the
Relative Need Formula that we have used since 1993. In addition, the
temporary rule only applies to a portion of the available funds for
Fiscal Year 2000, and the final distribution formula may include an
adjustment to account for any differences between the amounts
distributed under this temporary rule and the distributions under the
final formula.
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This temporary rule will not create a serious inconsistency or
otherwise interfere with an action taken or planned by another Federal
agency. FLH has transferred the IRR funds to us, and the FLH
representatives on the Committee have joined in the consensus mentioned
above.
This temporary rule does not alter the budgetary effects or
entitlement, grants, user fees, or loan programs or the rights or
obligations of their recipients. This temporary rule simply uses the
Relative Need Formula that we have used since 1993. In addition, the
temporary rule only applies to a portion of the available funds for
Fiscal Year 2000, and the final distribution formula may include an
adjustment to account for any differences between the amounts
distributed under this temporary rule and the distributions under the
final formula.
This temporary rule does not raise novel legal or policy issues.
This temporary rule is based on the Relative Need Formula, in use since
1993. We are not changing the current practice with this temporary
rule, except by dividing the distribution into two parts.
Regulatory Flexibility Act
A Regulatory Flexibility analysis under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) is not required for this temporary rule
because it applies only to tribal governments, not State and local
governments.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act, because it has an annual effect on
the economy of $100 million or more. As noted above, the total amount
of FY 2000 IRR funds is approximately $200 million, $100 million of
which we would distribute to IRR projects under this temporary rule.
Congress has already appropriated these funds and FLH has already
allocated them to BIA. The cost to the government of distributing the
IRR funds, especially under the Relative Need Formula with which the
tribal governments and tribal organizations and the BIA are already
familiar, is therefore negligible. The distribution of the IRR funds
does not require the tribal governments and tribal organizations to
expend any of their own funds; in fact, distribution of the IRR funds
is a benefit. Approximately 950 road and bridge construction projects
are at various phases that depend on this fiscal year's funds,
including 169 deficient bridges and the construction of approximately
400 miles of roads. Delaying work on many of these projects in FY 2000
would create undue hardship on tribes and tribal members, since
partially constructed road and bridge projects would jeopardize the
health and safety of the traveling public. Thus, the benefits of this
rule far outweigh the costs.
This rule will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. Actions under this rule will
distribute Federal funds to Indian tribal governments and tribal
organizations for road improvements.
This rule does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. In
fact, actions under this rule will provide a beneficial effect on
employment through funding for construction jobs.
Under 5 U.S.C. 808(2), this temporary rule may take effect
immediately upon publication in the Federal Register (as noted above in
the DATES section) because notice and public procedure thereon are
impracticable, unnecessary, and contrary to the public interest. Notice
and public procedure would be impracticable because of the urgent need
to distribute the first half of the FY 2000 IRR funds. Approximately
950 road and bridge construction projects are at various phases that
depend on this fiscal year's funds, including 169 deficient bridges and
the construction of approximately 400 miles of roads. The FY 2000 IRR
funds would be used to design, plan, and construct improvements (and,
in some cases, to reconstruct bridges). Designing and planning
improvements must take place before the construction season (which is
very short for some of the reservations) begins in the next few months.
Waiting for notice and comment on this temporary rule would be
contrary to the public interest. In some of our Regions, approximately
80 percent of the roads in the IRR system (and the majority of the
bridges) are designated school bus routes. Roads are essential access
to schools, jobs, and medical services. Many of the priority tribal
roads are also emergency evacuation routes and represent the only
access to tribal lands. Two-thirds of the road miles in Indian country
are unimproved roads. Defective bridges and roads are health and safety
hazards. Partially constructed road and bridge projects jeopardize the
health and safety of the traveling public. Further, over 200 current
projects (for which funding would be jeopardized by waiting) are
directly associated with environmental protection and preservation of
historic and cultural properties.
Under this temporary rule, we are distributing only one-half of the
FY 2000 IRR funds to address the most urgent needs while allowing for
public comment on distribution of the other half of the FY 2000 IRR
funds. In addition, the Committee's recommendation for the ultimate
distribution formula for IRR funds (after FY 2000) is undergoing public
notice and comment as part of the negotiated rulemaking process, and
that ultimate formula, if adopted by the Secretary, will again be
subject to full public notice and comment before we promulgate it as a
final rule.
Unfunded Mandates Reform Act
Under the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.), the
temporary rule will not significantly or uniquely affect small
governments, or the private sector. A Small Government Agency Plan is
not required.
This temporary rule will not produce a federal mandate that may
result in an expenditure by State, local, or tribal governments of $100
million or greater in any year. Rather, the overall effect of this
temporary rule is to provide money to tribal governments for IRR
construction projects.
Takings (E.O. 12630)
With respect to Executive Order 12630, the temporary rule does not
have significant takings implications since it involves no transfer of
title to any property. A takings implication assessment is not
required.
Federalism (E.O. 13132)
With respect to Executive Order 13132, the temporary rule does not
have significant Federalism implications to warrant the preparation of
a Federalism Assessment. This temporary rule should not affect the
relationship between State and Federal governments because this
temporary rule concerns administration of a fund dedicated to IRR
projects on or near Indian reservations that has no effect on Federal
funding of State roads. Therefore, the rule has no Federalism effects
within the meaning of E.O. 13132.
Civil Justice Reform (E.O. 12988)
This temporary rule does not unduly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of Executive Order
12988. This temporary rule contains no drafting errors or ambiguity and
is written to minimize litigation, provides clear
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standards, simplifies procedures, reduces burden, and is clearly
written. This temporary rule does not preempt any statute. We are still
pursuing the TEA-21 mandated negotiated rulemaking process, and the
final distribution formula may include an adjustment to account for any
differences between the amounts distributed under this temporary rule
and the distributions under the final formula. The temporary rule is
not retroactive with respect to any funding from any previous fiscal
year (or prospective to funding from any future fiscal year), but
applies only to pending FY 2000 funding.
Paperwork Reduction Act
The Paperwork Reduction Act does not apply because this temporary
rule does not impose recordkeeping or information collection
requirements or the collection of information from offerors,
contractors, or members of the public that require the approval of the
Office of Management and Budget under 44 U.S.C. 501 et seq. We already
have all of the necessary information to implement this rule.
National Environmental Policy Act
This temporary rule is categorically excluded from the preparation
of an environmental assessment or an environmental impact statement
under the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et
seq., because its environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and the road
projects funded as a result of this temporary rule will be subject
later to the National Environmental Policy Act process, either
collectively or case-by-case. Further, no extraordinary circumstances
exist to require preparation of an environmental assessment or
environmental impact statement.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of May 14, 1998,
``Consultation and Coordination with Indian Tribal Governments'' (63 FR
27655) and 512 DM 2, we have evaluated any potential effects upon
federally recognized Indian tribes and have determined that there are
no potential adverse effects. This temporary rule is based on the
Relative Need Formula, in use since 1993. We are not changing the
current practice with this temporary rule. Consultation with tribal
governments and tribal organizations is ongoing as part of the
negotiated rulemaking process.
Comments
Our practice is to make comments, including the names and addresses
of persons commenting, available for public review during regular
business hours. Persons commenting as private individuals may request
that we withhold their home address from the rulemaking record, which
we will honor to the extent allowable by law. There may also be
circumstances in which we would withhold from the rulemaking record a
commenter's identity, as allowable by law. If you wish us to withhold
your name and/or address, you must state this prominently at the
beginning of your comment. We will not consider anonymous comments.
Comments from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, will be available for public inspection in their
entirety.
List of Subjects in 25 CFR Part 170
Indians--Highways and Roads.
For the reasons set out in the preamble, we are temporarily
amending Part 170 in Chapter I of Title 25 of the Code of Federal
Regulations as follows.
PART 170--ROADS OF THE BUREAU OF INDIAN AFFAIRS
1. The authority citation for part 170 continues to read as
follows:
Authority: 36 Stat. 861; 78 Stat. 241, 253, 257; 45 Stat. 750
(25 U.S.C. 47; 42 U.S.C. 2000e(b), 2000e-2(i); 23 U.S.C. 101(a),
208, 308), unless otherwise noted.
2. Add Sec. 170.4b to read as follows:
Sec. 170.4b What formula will you use to distribute Fiscal Year 2000
Indian Reservation Roads Funds?
From February 15, 2000 through September 30, 2000, the Secretary
will distribute one-half of the Fiscal Year 2000 funds authorized under
Section 1115 of the Transportation Equity Act for the 21st Century,
Pub. L. 105-178, to Indian Reservation Roads and Bridges projects on or
near Indian reservations under the Relative Need Formula established
and approved in January 1993. (23 U.S.C. 202(d)).
Dated: February 8, 2000.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 00-3512 Filed 2-14-00; 8:45 am]
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