[Federal Register Volume 69, Number 97 (Wednesday, May 19, 2004)]
[Rules and Regulations]
[Pages 28821-28823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11280]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 170

RIN 1076-AE50


Distribution of Fiscal Year 2004 Indian Reservation Roads Funds

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: We are issuing a rule requiring that we immediately distribute 
$90 million of fiscal year 2004 Indian Reservation Roads (IRR) funds to 
projects on or near Indian reservations using the relative need 
formula. This partial distribution reflects the funds the Federal 
Highway Administration has allocated to the Department of the Interior 
and is based on funding appropriated by the Surface Transportation 
Extension Act of 2003 in effect until April 30, 2004. 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. This distribution will 
allow an immediate allocation of funds based on an existing formula, 
final allocations will be dependent on a final authorization of highway 
trust funds and a fiscal year 2004 appropriations.

DATES: Effective Date: May 19, 2004. Section 170.4b expires September 
30, 2004.

FOR FURTHER INFORMATION CONTACT: LeRoy Gishi, Chief, Division of 
Transportation, Tribal Services, Bureau of Indian Affairs, 1951 
Constitution Avenue, NW., MS-20-SIB, Washington, DC 20240. Mr. Gishi 
may also be reached at (202) 513-7714 (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 Rule?

    We are publishing this rule to distribute $90 million of fiscal 
year 2004 IRR Program funds. This rule sets no precedent for the final 
rule to be published as required by section 1115 of TEA-21.

Why Does This Final Rule Not Allow for Notice and Comment on the 
Partial Distribution of Fiscal Year 2004 IRR Program Funds, and Why Is 
It Effective Immediately?

    Under 5 U.S.C. 553(b)(3)(B), notice and public procedure on this 
distribution under this rule are impracticable, unnecessary, and 
contrary to the public interest. In addition, we have good cause for 
making this final rule for distribution of the available fiscal year 
2004 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 the available fiscal year 2004 IRR Program 
funds. Approximately 1,300 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 7,300 miles of roads. Fiscal year 2004 
IRR Program funds will be used to design, plan, and construct 
improvements (and, in some cases, to reconstruct bridges). Without this 
immediate final distribution of fiscal year 2004 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 
final distribution of fiscal year 2004 IRR Program funds 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 
rule is going into effect immediately because of the urgent need for 
distributing the final funds available under the fiscal year 2004 IRR 
Program to continue these construction projects.

Where Can I Find Information on the Distribution of Fiscal Year 2003 
IRR Program Funds?

    You can find this information in the Federal Register notice dated 
June 5, 2003 (68 FR 33625).

How Will the Secretary Distribute $90 Million of Fiscal Year 2004 IRR 
Program Funds?

    Upon publication of this rule, the Secretary will distribute only 
$90 million of fiscal year 2004 IRR program funds based on the current 
relative need formula used in fiscal years 2000, 2001, 2002 and in 
fiscal year 2003. 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 a 
significant regulatory action because it will not have an annual effect 
of more than $100

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million on the economy. The total amount currently available for 
distribution of fiscal year 2004 IRR program funds is approximately 
$135 million and we are distributing only $90 million under this rule. 
Congress has authorized these funds and FHWA has already allocated them 
to the Bureau of Indian Affairs (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 2004 IRR program funds does not require tribal governments and 
tribal 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 partial distributions for fiscal 
years 2000, 2001, 2002 and 2003 IRR Program funds. Approximately 350 
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.

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 only $90 million under this rule. Congress has authorized 
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 projects 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 $90 million or 
greater in any year. The effect of this rule is to provide $90 million 
of fiscal year 2004 IRR Program funds 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. 
Under the Transportation Equity Act for the 21st Century negotiated 
rulemaking, we have published a proposed rule and funding formula which 
is currently being finalized. A final funding formula for fiscal year 
2004 will be published in 2004. 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 $90 million 
of fiscal year 2004 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

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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 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. 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 Program funds. We are 
making a change from previous years (which we also made for fiscal 
years 2000, 2001, 2002 and 2003 IRR Program funds (see Federal Register 
notices at 65 FR 37697, 66 FR 17073, 67 FR 44355 and 68 FR 33625)) 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.

List of Subjects in 25 CFR Part 170

    Highways and roads, Indians--lands.

0
In order to distribute part of fiscal year 2004 IRR Program funds 
immediately 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. Revise Sec.  170.4b to read as follows:


Sec.  170.4b  What formula will BIA use to distribute $90 million of 
fiscal year 2004 Indian Reservation Roads Program funds?

    On May 19, 2004, we will distribute $90 million of fiscal year 2004 
IRR Program funds authorized under the Surface Transportation Extension 
Act of 2003, Public Law 108-88, 117 Stat. 1110. 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.

David W. Anderson,
Assistant Secretary--Indian Affairs.
[FR Doc. 04-11280 Filed 5-18-04; 8:45 am]
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