[Federal Register Volume 67, Number 127 (Tuesday, July 2, 2002)]
[Rules and Regulations]
[Pages 44355-44357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16636]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 170

RIN 1076-AE28


Distribution of Fiscal Year 2002 Indian Reservation Roads Funds

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: We are issuing a final rule requiring that we distribute the 
remaining 25 percent of fiscal year 2002 Indian Reservation Roads (IRR) 
funds to projects on or near Indian reservations using the relative 
need formula. 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. Up to 
$35,000 per tribe is available under this distribution until August 15, 
2002, for administrative capacity building and other eligible 
transportation activities upon receipt, review, and approval of self-
determination contracts and self-governance agreements, where 
applicable, and receipt of tribal requests by direct services tribes 
for BIA regions to perform these functions for them.

EFFECTIVE DATE: July 8, 2002 through September 30, 2002.

FOR FURTHER INFORMATION CONTACT: LeRoy Gishi, Chief, Division of 
Transportation, Office of Trust Responsibilities, 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) or 202-208-4696 
(fax).

SUPPLEMENTARY INFORMATION:

Background

Where Can I Find General Background Information on the Indian 
Reservation Roads (IRR) Program, the Relative Need Formula, the Federal 
Highway Administration (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).

Why Are You Publishing This Final Rule?

    We are publishing this final rule only for the distribution of the 
remaining 25 percent of fiscal year 2002 IRR funds. This rule sets no 
precedent for the final rule to be published as required by Section 
1115 of TEA-21. On January 10, 2002, we published a temporary rule 
distributing 75 percent of fiscal year 2002 IRR funds (67 FR 1290).

Where Can I Find Information on the Distribution of 75 Percent of 
Fiscal Year 2002 IRR Funds?

    You can find this information in the Federal Register notice dated 
January 10, 2002 (67 FR 1290).

What Comments Did You Receive on the Temporary Rule for Distribution of 
25 Percent of Fiscal Year 2002 IRR Program Funds?

    In the 30-day comment period after publication of the temporary 
rule distributing 75 percent of fiscal year 2002 IRR program funds, we 
received comments from 2 commenters.
    Comment: Two commenters disagreed with reserving $19.53 million for 
administrative capacity building. The commenters stated that providing 
such funds decreased the amount of IRR Program funds they would receive 
and that 2 percent planning funds already available were adequate for 
administrative capacity building.
    Response: The tribal caucus recommendation was to reserve funds for 
administrative capacity building for fiscal year 2002 in the same 
manner as fiscal year 2001. The Assistant Secretary--Indian Affairs 
considered this tribal caucus recommendation to allow all tribes to 
participate in the IRR program, as an acceptable funding method for 
fiscal year 2001 and again proposed it only for fiscal year 2002 in the 
temporary rule. This rule sets no precedent for the final rule to be 
published as required by Section 1115 of TEA-21.

Does This Rule Include the Reserved Funds for Administrative Capacity 
Building?

    Yes. The remaining 25 percent of fiscal year IRR program funds 
distributed under this rule includes the $19.53 million reserved for 
administrative capacity building and other eligible transportation 
activities. These funds will be distributed until August 15, 2002, 
based on approved self-determination contracts or applicable self-
governance agreements or requests by direct services tribes to the 
appropriate BIA region for BIA to perform administrative capacity 
building for them. After August 15, 2002, any undistributed funds 
reserved for administrative capacity building will be distributed to 
the appropriate BIA regions using the relative need formula.

How Will the Secretary Distribute the Remaining 25 Percent of Fiscal 
Year 2002 IRR Program Funds?

    Upon publication of this rule, the Secretary will distribute the 
remaining 25 percent (approximately $61.9 million) of fiscal year 2002 
IRR program funds based on the current relative need formula used in 
fiscal years 2000, 2001 and in the first distribution in fiscal year 
2002. From this 25 percent the Secretary is reserving $19.53 million to 
distribute for administrative capacity building by the process 
described in the January 10, 2002, temporary rule. We are using the 
latest indices from the FHWA Price Trends Report with appropriate 
modifications for non-reporting states in the relative need formula 
distribution process.

Regulatory Planning and Review (Executive Order 12866)

    Under the criteria in Executive Order 12866, this rule is not an 
economically significant regulatory action because it will not have an 
annual effect of more than $100 million on the economy. The total 
amount available for distribution of fiscal year 2002 IRR program funds 
is approximately $226 million and we are distributing approximately 
$61.9 million under this 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 2002 IRR program funds does not require 
tribal governments and tribal

[[Page 44356]]

organizations to expend any of their own funds. 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, adjusting the FHWA Price Trends 
Report indices for states that do not have current data reports. This 
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 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 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 years 2000 and 
2001 IRR program funds and the first partial distribution of fiscal 
year 2002 IRR 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 rule because it 
applies only to tribal governments, not state and local governments.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act, because it does not have 
an annual effect on the economy of $100 million or more. We are 
distributing approximately $61.9 million under this 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, 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 rule will not significantly or uniquely affect small governments, 
or the private sector. A Small Government Agency Plan is not required. 
This 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 rule is to immediately provide 
the remaining 25 percent of fiscal year 2002 IRR program funds to 
tribal governments for ongoing IRR activities and construction 
projects.

Takings Implications (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 (Executive 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 rule should not affect the relationship 
between state governments and the Federal government 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 the remaining 25 percent of fiscal 
year 2002 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.

Consultation and Coordination With Indian Tribal Governments (Executive 
Order 13175)

    Pursuant to the President's Executive Order 13175 of November 6, 
2000, ``Consultation and Coordination with Indian Tribal Governments,'' 
we have consulted with tribal representatives throughout the negotiated 
rulemaking process and in developing this rule. The TEA-21 Negotiated 
rulemaking

[[Page 44357]]

committee's tribal caucus presented a consensus recommendation to the 
Assistant Secretary for distribution of fiscal year 2002 IRR program 
funds. We have evaluated any potential effects on federally recognized 
Indian tribes and have determined that there are no potential adverse 
effects and have determined that this rule preserves the integrity and 
consistency of the relative need formula process we have used since 
1993 to distribute IRR funds. We are making a change from previous 
years (which we also made for fiscal years 2000, 2001, and the first 
part of fiscal year 2002 IRR program funds (see Federal Register 
notices at 65 FR 37697 and 66 FR 17073)) 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. As in fiscal year 2001, this rule will provide 
for up to $35,000 per tribe for administrative capacity building and 
other eligible transportation activities by reserving $19.53 million 
from this distribution. 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 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. Revise Sec. 170.4b to read as follows:


Sec. 170.4b  What formula will BIA use to distribute the remaining 25 
percent of fiscal year 2002 Indian Reservation Roads program funds?

    On July 8, 2002 we will distribute the remaining 25 percent of 
fiscal year 2002 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. 
Of this remaining 25 percent of fiscal year 2002 IRR program funds, 
$19.53 million is available for immediate distribution to provide for 
up to $35,000 for each tribe for administrative capacity building and 
other eligible transportation activities based on approved contracts, 
agreements, or requests for such funds by the deadline of August 15, 
2002.

    Dated: May 9, 2002.
Neal A. McCaleb,
Assistant Secretary, Indian Affairs.
[FR Doc. 02-16636 Filed 7-1-02; 8:45 am]
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