[Federal Register Volume 66, Number 6 (Tuesday, January 9, 2001)]
[Rules and Regulations]
[Pages 1576-1580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-376]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 170


Distribution of Fiscal Year 2001 Indian Reservation Roads Funds

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Temporary rule.

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SUMMARY: We are issuing a temporary rule requiring that we distribute 
75 percent of fiscal year 2001 Indian Reservation Roads (IRR) funds to 
projects on or near Indian reservations using the relative need 
formula. As we did in fiscal year 2000, we are using the Federal 
Highway Administration (FHWA) Price Trends report for the relative need 
formula distribution process, with appropriate modifications to address 
non-reporting states. In this distribution we are reserving up to 
$19.53 million to allow federally recognized tribes to apply for 
$35,000 each for administrative capacity building and other eligible 
transportation activities for fiscal year 2001.

DATES: This temporary rule is effective January 9, 2001 through 
September 30, 2001. We are requesting comments on or before February 8, 
2001.

ADDRESSES: Submit comments to LeRoy Gishi, Chief, Division of 
Transportation, Office of Trust Responsibilities, Bureau of Indian 
Affairs, 1849 C Street, NW, MS-4058-MIB, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: LeRoy Gishi, Chief, Division of 
Transportation, Office of Trust Responsibilities, may be reached at 
202-208-4359 (phone), 202-208-4696 (fax), or [email protected] 
(electronic mail).

SUPPLEMENTARY INFORMATION:

Background

Where Can I Find General Background Information on the Indian 
Reservation Roads Program, the Relative Need Formula, the FHWA Price 
Trends Report, and the Transportation Equity Act for the 21st Century 
(TEA-21) Negotiated Rulemaking Process?

    The background information on the IRR program, the relative need 
formula, the FHWA Price Trends Report, and the TEA-21 Negotiated 
Rulemaking process is detailed in the Federal Register Notice dated 
February 15, 2000 (65 FR 7431). You may obtain additional information 
on the IRR program web site at http://www.irr.bia.gov.

What Was the Basis for Distribution of Fiscal Year 2000 Funds?

    For fiscal year 2000 IRR program funds, the Secretary published two 
interim rules distributing one-half of the funds in February, 2000 and 
the second half of the funds in June, 2000. This distribution followed 
the TEA-21 Negotiated Rulemaking Committee's recommendation to the 
Secretary in January, 2000 to distribute fiscal year 2000 IRR program 
funds under the relative need formula used in 1998 and 1999 while 
continuing to develop alternative formulas for comment. In addition, we 
modified the Federal Highway Administration Price Trends Report indices 
to account for two non-reporting states.

What Is the Basis for Distribution of Fiscal Year 2001 IRR Program 
Funds?

    The Transportation Equity Act for the 21st Century provides that 
the Secretary develop rules and a funding formula for fiscal year 2000 
and subsequent fiscal years to implement the Indian Reservation Roads 
program section of the Act. The Negotiated Rulemaking Committee created 
under Section 1115 of TEA-21 and comprised of representatives of tribal 
governments and the federal government has been diligently working to 
develop a funding formula that addresses the Congressionally identified 
criteria, Committee and tribal recommendations, and is consistent with 
overall Federal Indian Policy.
    Permanent funding formula options have been developed and agreed 
upon by the Committee and tribal representatives. These options will be 
published at a later date in the Federal Register for public comment. 
In the meantime, there are about 1400 ongoing road and bridge 
construction projects on or near Indian reservations which need fiscal 
year 2001 funding to continue or complete work. Partially constructed 
road and bridge projects could pose safety threats. Other road and 
bridge projects need to be planned or initiated in this fiscal year.
    This rule is published as a temporary rule only for interim funding 
for fiscal year 2001 and sets no precedent for the final rule to be 
published as required by Section 1115 of TEA-21. The TEA-21 Negotiated 
Rulemaking Committee agrees that an interim funding formula for fiscal 
year 2001 is needed. The Committee expects to recommend the publication 
of two alternative formulas for public comment so that a final 
permanent formula can be established for the next fiscal year. The 
interim formula for fiscal year 2001 will also provide tribes with the 
critical resources to develop inventory data, long-range transportation 
plans, transportation improvement programs and other information 
necessary to distribute funds under a new funding formula to be put in 
place for fiscal year 2002 and thereafter.
    The TEA-21 Negotiated Rulemaking Committee's tribal caucus 
recommended that the Secretary distribute fiscal year 2001 funds on the 
same basis as fiscal year 2000 funds, including a provision for an 
administrative capacity building set-aside. Under a special 
Congressional appropriation in fiscal year 2000, we distributed $18.3 
million for transportation planning and the design of deficient IRR 
bridges.

How Will the Secretary Distribute Fiscal Year 2001 IRR Program 
Funds?

    Upon publication of this rule, the Secretary will distribute 75 
percent (approximately $169.5 million) of fiscal year 2001 IRR program 
funds based on the current relative need formula used in fiscal year 
2000, and the indices from the FHWA Price Trends Report with 
appropriate modifications for non-reporting states in the relative need 
formula distribution process. In this distribution we are reserving 
$19.53 million for federally recognized tribes who apply for and have 
negotiated contracts or agreements for up to $35,000 for administrative 
capacity building and other eligible transportation activities under 
the IRR program. Fiscal year 2001 funds will be distributed to the 
twelve BIA regions using this distribution process. The remaining 25 
percent of fiscal year 2001 IRR program funds will be distributed under 
the same relative need formula as the first 75 percent of the funds, 
after comments are reviewed and any necessary changes to the 
distribution are made.

What Formula Components Are We Using for Distribution of Fiscal Year 
2001 Funds and How Are They Related?

    The following diagram shows the relationship between components for 
fiscal year 2001 IRR program funds distribution:

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[GRAPHIC] [TIFF OMITTED] TR09JA01.001

What Data Are We Using for the Interim Distribution Funding Formula?

    We are using the most current road inventory data (June 2000) 
maintained by the Bureau of Indian Affairs.

What Is the Purpose of Administrative Capacity Building?

    The primary purpose of administrative capacity building is to 
provide all tribes an opportunity to participate in the IRR program by 
updating transportation needs inventories and performing other 
transportation planning activities.
    How Are We Distributing the Reserved Administrative Capacity 
Building Funds to the Twelve BIA Regions?
    The administrative capacity building funds are to be reserved at 
the BIA Division of Transportation until the application/award deadline 
is met. We are distributing the reserved administrative capacity 
building funds ($19.53 million) to the twelve BIA regions based on the 
number of tribes in the region that request to participate by tribal 
resolution or other official action of the tribe.

How Will We Provide Administrative Capacity Building Funds to Tribes?

    Any Federally recognized tribe may apply to the appropriate BIA 
region for administrative capacity building funds under the Indian 
Self-Determination and Educational Assistance Act (P.L. 93-638) no 
later than March 15, 2001.

How Will BIA Provide Administrative Capacity Building Services to 
Direct Service Tribes?

    The BIA regions will provide administrative capacity building 
services to tribes in their regions that request such services.

What Must a Self-Determination or Self-Governance Tribe Provide in Its 
Application to the BIA Region for Administrative Capacity Building 
Funds for Fiscal Year 2001?

    A self-determination or self-governance tribe must make application 
to the appropriate BIA Region by March 15, 2001 and must include:
    (a) Scope of work; and
    (b) Detailed budget not to exceed $35,000; and
    (c) Official tribal resolution or other official action of the 
tribe requesting the funds.

What Will BIA Do With Any Reserved Funds That Have Not Been Awarded to 
Tribes for Administrative Capacity Building After August 15, 2001?

    We will distribute the remaining funds to the twelve BIA regions 
based on the relative need formula discussed in this rule. It is 
important that each tribe submit its application for administrative 
capacity building within the established deadlines so that we can make 
a timely reallocation of any reserved funds that are not awarded by 
August 15, 2001.

Are There Any Differences in the Distribution of Fiscal Year 2001 IRR 
Program Funds as Compared to the Two Distributions of Fiscal Year 2000 
IRR Program Funds Under the First and Second Temporary Rules Published 
in February 2000 and June 2000?

    The distribution of fiscal year 2001 IRR program funds are based on 
the current relative need formula and the FHWA Price Trends Report 
indices that were used for the adjusted FY 2000 distribution. On 
February 15, 2000 the Secretary partially distributed fiscal year 2000 
IRR program funds using the relative need formula. In June, 2000, the 
Secretary distributed the remaining funds under the relative need 
formula by modifying the FHWA price trend report indices for two non-
reporting states, Washington and Alaska, that impact tribes in those 
non-reporting states. We are using the same modification process for 
non-reporting states for distribution of fiscal year 2001 IRR program 
funds. We are partially distributing fiscal year 2001 IRR program funds 
upon publication of this rule (75 percent) and we will distribute the 
remaining 25 percent of the funds following the 30-day comment period. 
In the first partial distribution of fiscal

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year 2001 funds we are reserving $19.53 million for administrative 
capacity building. Any federally recognized tribe may apply for $35,000 
for such activities.

Why Does This Temporary Rule Not Allow for Notice and Comment on the 
First Partial Distribution of Fiscal Year 2001 IRR Program Funds, and 
Why Is It Effective Immediately?

    Under 5 U.S.C. 553(b)(3)(B), notice and public procedure on the 
first partial distribution under this rule are impracticable, 
unnecessary, and contrary to the public interest. In addition, we have 
good cause for making this temporary rule for distribution of 75 
percent of fiscal year IRR program funds effective immediately under 5 
U.S.C. 553(d)(3). Notice and public procedure would be impracticable 
because of the urgent need to distribute 75 percent of fiscal year 2001 
IRR program funds. Approximately 1400 road and bridge construction 
projects are at various phases that require additional funds this 
fiscal year to continue or complete work, including 196 deficient 
bridges and the construction of approximately 600 miles of roads. 
Fiscal year 2001 IRR program funds will be used to design, plan, and 
construct improvements (and, in some cases, to reconstruct bridges). 
Without this partial distribution of fiscal year 2001 funds, tribal and 
BIA IRR projects will be forced to cease activity, placing projects and 
jobs in jeopardy. Waiting for notice and comment on this temporary rule 
would be contrary to the public interest. In some of the BIA 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 projects currently in progress 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 partially distributing 
fiscal year 2001 funds to continue these construction projects.
    We are providing for a 30-day comment period upon publication of 
this temporary rule for comments on distribution of the remaining 25 
percent of fiscal year 2001 IRR program funds. We will review and 
consider comments on distributing the remaining 25 percent of fiscal 
year 2001 IRR program funds before the second distribution.

Clarity of This Temporary Rule

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. 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 (Executive Order 12866)

    Under the criteria in Executive Order 12866, this temporary rule is 
a significant regulatory action because it will have an annual effect 
of more than $100 million on the economy. The total amount available 
for distribution of fiscal year 2001 IRR program funds is approximately 
$226 million and we are distributing approximately $169.5 million under 
this temporary rule. Congress has already appropriated these funds and 
FHWA has already allocated them to BIA. The cost to the government of 
distributing the IRR program funds, especially under the relative need 
formula with which the tribal governments and tribal organizations and 
the BIA are already familiar, is negligible. The distribution of fiscal 
year 2001 IRR program funds does not require tribal governments and 
tribal organizations to expend any of their own funds.
    This temporary rule is consistent with the policies and practices 
that currently guide our distribution of IRR program funds. This 
temporary rule continues to adopt the relative need formula that we 
have used since 1993, adjusting the FHWA Price Trends Report indices 
for states that do not have current data reports.
    This temporary rule will not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another Federal 
agency. The FHWA has transferred the IRR program funds to us and fully 
expects the BIA to distribute the funds according to a funding formula 
approved by the Secretary. This temporary rule does not alter the 
budgetary effects on any tribes from any previous or any future 
distribution of IRR program funds and does not alter entitlement, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    This temporary rule does not raise novel legal or policy issues. It 
is based on the relative need formula in use since 1993. We are 
changing determination of relative need only by appropriately modifying 
the FHWA Price Trend Report indices for states that did not report data 
for the FHWA Price Trends Report, just as we did for the second partial 
distribution of fiscal year 2000 IRR program funds.
    Approximately 1400 road and bridge construction projects are at 
various phases that depend on this fiscal year's IRR program funds. 
Leaving these ongoing projects unfunded will 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 rule is consistent 
with the policies and practices that currently guide our distribution 
of IRR program funds. This rule continues to adopt the relative need 
formula that we have used since 1993.

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. We are distributing approximately 
$169.5 million under this temporary rule. Congress has already 
appropriated these funds and FHWA has already allocated them to BIA. 
The cost to the government of distributing the IRR program funds, 
especially under the relative need formula with which tribal 
governments, tribal organizations, and the BIA are already familiar, is 
negligible. The distribution of the IRR program funds does not require 
tribal governments and tribal organizations to expend any of their own 
funds.
    This rule will not cause a major increase in costs or prices for 
consumers, individual industries,

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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 transportation planning, road 
and bridge construction, and 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.

Unfunded Mandates Reform Act

    Under the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.), 
this 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. The effect of this temporary rule is to 
immediately provide 75 percent of fiscal year 2001 IRR program funds to 
tribal governments for ongoing IRR activities and construction 
projects.

Takings (Executive Order 12630)

    With respect to Executive Order 12630, the 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 (Exectuive Order 13132)

    With respect to Executive Order 13132, the 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 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 Executive Order 13132.

Civil Justice Reform (Executive Order 12988)

    This 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 rule contains no drafting errors or ambiguity and is clearly 
written to minimize litigation, provide clear standards, simplify 
procedures, and reduce burden. This rule does not preempt any statute. 
We are still pursuing the TEA-21 mandated negotiated rulemaking 
process. The 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 75 percent of fiscal year 2001 IRR 
program funding.

Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this rule does 
not impose record keeping 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 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 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 this rule 
preserves the integrity and consistency of the relative need formula 
process we have used since 1993. The only changes we are making from 
previous years (which we also made for fiscal year 2000 IRR program 
funds (see Federal Register Notice 65 FR 7431)) are to modify the FHWA 
Price Trends Report indices for non-reporting states which do not have 
current price trends data reports. The yearly FHWA Report is used as 
part of the process to determine the cost-to-improve portion of the 
relative need formula. Consultation with tribal governments and tribal 
organizations is ongoing as part of the TEA-21 negotiated rulemaking 
process and this distribution uses the TEA-21 Negotiated Rulemaking 
Committee's tribal caucus recommendation.

List of Subjects in 25 CFR Part 170

    Highways and roads, Indians--lands.

    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), 
202, 204), unless otherwise noted.


    2. Effective January 9, 2001 through September 30, 2001, add 
Sec. 170.4b to read as follows:


Sec. 170.4b  What formula will BIA use to distribute 75 percent of 
fiscal year 2001 Indian Reservation Roads funds?

    On January 9, 2001 we will distribute 75 percent of fiscal year 
2001 IRR program funds authorized under Section 1115 of the 
Transportation Equity Act for the 21st Century, Public Law 105-178, 112 
Stat. 154. We will distribute the funds to Indian Reservation Roads 
projects on or near Indian reservations using the relative need formula 
established and approved in January 1993. The formula has been modified 
to account for non-reporting states by inserting the latest data 
reported for those states for use in the relative need formula process. 
In addition, we are reserving $19.53 million of this distribution to 
allow federally recognized tribes to apply for $35,000 for 
administrative capacity building for fiscal year 2001.

    Dated: December 29, 2000.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 01-376 Filed 1-8-01; 8:45 am]
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