[Federal Register Volume 68, Number 108 (Thursday, June 5, 2003)]
[Rules and Regulations]
[Pages 33625-33629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14184]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 170

RIN 1076-AE34


Distribution of Fiscal Year 2003 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 
75 percent of available fiscal year 2003 Indian Reservation Roads (IRR) 
Program funds to projects on or near Indian reservations using the 
relative need formula. As we did in fiscal years 2000, 2001 and 2002, 
we are using the Federal Highway Administration (FHWA) Price Trends 
report for information to calculate the relative need formula, with 
appropriate modifications to address non-reporting states. We will 
distribute the balance of the remaining 25 percent of fiscal year 2003 
IRR Program funds according to the relative need formula.

DATES: This temporary rule is effective June 5, 2003, through September 
30, 2003. We will accept comments on this temporary rule until July 7, 
2003.

ADDRESSES: You may send comments on the formula for distribution of the 
Fiscal Year 2003 IRR Program funds 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. Mr. 
Gishi may also be reached at (202) 208-4359.

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 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).

What Was the Basis for Distribution of Fiscal Years 2000, 2001 and 2002 
IRR Program Funds?

    For fiscal year 2000 IRR Program funds, the Secretary published a 
temporary and final distributing one-half of the funds in February 2000 
and the second half of the funds in June 2000. For fiscal years 2001 
and 2002 IRR Program funds, the Secretary published a temporary 
distributing 75 percent of the funds in January 2001 and January 2002 
and the remaining 25 percent of the funds in March 2001 and July 2002. 
These distributions followed the TEA-21 Negotiated Rulemaking 
Committee's

[[Page 33626]]

recommendation to distribute fiscal years 2000, 2001 and 2002 IRR 
Program funds under the relative need formula used in 1999, while 
continuing to develop a proposed formula to publish for comment as part 
of the 25 CFR 170 Notice of Proposed Rulemaking. In addition, in each 
of these years we modified the Federal Highway Administration Price 
Trends Report indices to account for non-reporting states.

What Is the Basis for Distribution of Fiscal Year 2003 IRR Program 
Funds?

    The Transportation Equity Act for the 21st Century (TEA-21) 
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.
    The Committee proposed a permanent funding formula that was 
published on August 7, 2002 (67 FR 51328) in the Federal Register for 
public comment. The Secretary is completing the review of comments and 
drafting a final rule at this time. In the meantime, there are about 
1300 ongoing road and bridge construction projects on or near Indian 
reservations which need fiscal year 2003 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 2003 and sets no 
precedent for the final rule to be published as required by section 
1115 of TEA-21. We expect to publish the final rule and funding formula 
before the beginning of fiscal year 2004. The interim formula for the 
current fiscal year will 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 
2004. The Secretary is basing this distribution on similar 
methodologies used in fiscal year 2000, 2001 and 2002.

How Will the Secretary Distribute Fiscal Year 2003 IRR Program Funds?

    Upon publication of this rule, the Secretary will distribute 75 
percent of fiscal year 2003 IRR Program funds based on the current 
relative need formula used in fiscal years 2000, 2001 and 2002, and the 
indices from the FHWA Price Trends Report with appropriate 
modifications for non-reporting states in the relative need formula 
distribution process. We will distribute fiscal year 2003 IRR Program 
funds to the twelve BIA regions using this distribution process. We are 
requesting comments on the use of the current relative need formula for 
distribution of the remaining 25 percent of fiscal year 2003 IRR 
Program funds.

What Formula Components Are We Using for Distribution of Fiscal Year 
2003 IRR Program Funds and How Are They Related?

    The following diagram shows the relationship between components for 
fiscal year 2003 IRR Program funds distribution:
[GRAPHIC] [TIFF OMITTED] TR05JN03.006


[[Page 33627]]



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

    We are using the most current road inventory data (June 2002) 
maintained by the Bureau of Indian Affairs.

Are There Any Differences in the Distribution of Fiscal Year 2003 IRR 
Program Funds as Compared to the Distributions of Fiscal Years 2000, 
2001 and 2002 IRR Program Funds?

    The distribution of fiscal year 2003 IRR Program funds is based on 
the current relative need formula and the FHWA Price Trends Report 
indices that were used for the adjusted fiscal years 2000, 2001 and 
2002 distribution. In February 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 nonreporting states, Washington and Alaska, that impact tribes 
in those nonreporting states. In January 2001 the Secretary partially 
distributed fiscal year 2001 IRR Program funds using the relative need 
formula. In June 2001 the Secretary distributed the remaining funds 
under the relative need formula by modifying the FHWA price trend 
report indices for non-reporting states. In January 2002 the Secretary 
partially distributed fiscal year 2002 IRR Program funds using the 
relative need formula. In July 2002 the Secretary distributed the 
remaining funds under the relative need formula by modifying the FHWA 
price trend report indices for non-reporting states. We are using the 
same modification process for non-reporting states for distribution of 
fiscal year 2003 IRR Program funds. For fiscal years 2001 and 2002 we 
distributed funds in the same manner as in fiscal year 2000, except 
that we reserved up to $19.53 million for administrative capacity 
building for federally recognized tribes. We are distributing fiscal 
year 2003 funds in the same way as fiscal year 2000 IRR Program funds.

Why Does This Temporary Rule Not Allow for Notice and Comment on the 
First Partial Distribution of Fiscal Year 2002 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 2003 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 2003 IRR Program 
funds. Approximately 1300 road and bridge construction projects are at 
various phases that require additional funds this fiscal year to 
continue or complete work, including 220 deficient bridges and the 
construction of approximately 7300 miles of roads. Fiscal year 2003 IRR 
Program funds will be used to design, plan, and construct improvements 
(and, in some cases, to reconstruct bridges). Without this immediate 
partial distribution of fiscal year 2003 IRR Program 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. Approximately 40 percent 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 and deficient bridges and roads jeopardize the 
health and safety of the traveling public. Further, over 600 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 2003 IRR Program funds to 
continue these construction projects. Distribution of the remaining 25 
percent of fiscal year 2003 IRR Program funds will be distributed under 
the same relative need formula as the first 75 percent of the funds 
after we review and consider comments.

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 requiring review by the Office of 
Management and Budget because it will have an annual effect of more 
than $100 million on the economy. The total amount available for 
distribution of fiscal year 2003 IRR Program funds is approximately 
$196 million and we are distributing approximately $147 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 2003 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 distribution of fiscal year 2002 IRR Program funds.

[[Page 33628]]

    Approximately 1300 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, which are not covered by 
the Act.

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 
$147 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, 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 2003 
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 (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 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 
to set up a permanent funding formula distributing IRR Program funds. 
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 2003 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

    Under Executive Order 13175, Consultation and Coordination with 
Indian Tribal Governments (65 FR 218), consultation with 
representatives of Indian tribal governments who serve on the 
Transportation Equity Act for the 21st Century (TEA-21) Negotiated 
Rulemaking Committee has occurred. Distributing IRR Program funds under 
this interim rule has tribal implications in that transportation 
planning and projects rely on this funding. Distributing funds under 
this interim rule does not impose direct compliance costs on Indian 
tribal governments and does not preempt tribal law. While TEA-21 
Negotiated Rulemaking Committee tribal representatives agree that we 
use the funding method for distributing IRR Program funds we have used 
since 1993, as they have agreed for fiscal years 2000, 2001, and 2002, 
there is disagreement among tribal representatives about reserving 
funds (approximately $20 million) to distribute $35,000 to each 
Federally-recognized tribe for administrative capacity building for 
fiscal year 2003. We reserved administrative capacity building funds in 
fiscal years 2001 and 2002 and distributed $35,000 to each Federally-
recognized tribe in each year. For fiscal year 2003, however, since 
there is no consensus to provide administrative capacity building 
funds, the method of formula distribution of all available funds will 
reflect the same distribution as in FY2000, FY2001 and FY2002.

[[Page 33629]]

List of Subjects in 25 CFR Part 170

    Highways and Roads, Indians-lands.

0
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

0
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.


0
2. Effective June 5, 2003, through September 30, 2003, revise Sec.  
170.4b to read as follows:


Sec.  170.4b  What formula will BIA use to distribute 75 percent of 
fiscal year 2003 Indian Reservation Roads funds?

    On June 5, 2003, we will distribute 75 percent of fiscal year 2003 
IRR Program funds authorized under section 1115 of the Transportation 
Equity Act for the 21st Century, Pub. L. 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. We are modifying the formula to account 
for non-reporting States by inserting the latest data reported for 
those States for use in the relative need formula process.

    Dated: May 26, 2003.
Aurene M. Martin,
Assistant Secretary-Indian Affairs.
[FR Doc. 03-14184 Filed 6-4-03; 8:45 am]
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