[Federal Register Volume 85, Number 61 (Monday, March 30, 2020)]
[Rules and Regulations]
[Pages 17497-17499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06061]



Bureau of Indian Affairs

25 CFR Part 170

[201A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1076-AF45

Tribal Transportation Program; Inventory of Proposed Roads

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.


SUMMARY: The Bureau of Indian Affairs (BIA) is finalizing a change to a 
provision in the Tribal Transportation Program regulations affecting 
proposed roads that are currently in the National Tribal Transportation 
Facility Inventory (NTTFI). Specifically, this final rule deletes the 
requirement for Tribes to collect and submit certain data in order to 
keep those proposed roads in the NTTFI. The requirement to collect and 
submit data to add new proposed roads to the NTTFI remains in place.

DATES: This rule is effective on April 29, 2020.

Transportation, Office of Indian Services, Bureau of Indian Affairs, 
(202) 513-7711, [email protected].

SUPPLEMENTARY INFORMATION: Regulations governing the Tribal 
Transportation Program were published in 2016. See 81 FR 78456 
(November 7, 2016). The regulations became effective on December 7, 
2016, except for Sec.  170.443, which required Tribes' compliance one 
year later: On November 7, 2017. Section 170.443 required Tribes to 
collect data for proposed roads to be added to, or remain in, the 
NTTFI. BIA then further delayed the November 7, 2017, deadline for 
compliance with Sec.  170.443 to November 7, 2019. See 82 FR 50312 
(October 31, 2017), 83 FR 8609 (February 28, 2018). The purpose of the 
delay was to provide BIA with time to reexamine whether revision or 
deletion of the data collection requirements in Sec.  170.443 would be 
appropriate. BIA staff then engaged in outreach at several regional and 
national meetings with affected Tribes and, on July 26, 2019, issued a 
proposal to apply the data collection requirements going forward to any 
new proposed road submission, but not to proposed roads that were 
already in the NTTFI as of the date of publication of the regulations 
on November 7, 2016, unless any changes or updates were or are made 
after that date. See 84 FR 36040. BIA then hosted three Tribal 
consultation sessions: September 5, 2019, in Minneapolis; September 10, 
2019, in Anchorage, Alaska; and September 12, 2019, in Denver, 

I. Comments and Responses on the Proposed Rule

    BIA received 14 written comment submissions on the proposed rule. 
Approximately half supported the rule and half opposed. One 
participants in the Denver consultation opposed the proposed rule, 
while some participants at the remaining consultations expressed 
support and others expressed opposition to the rule.

A. Comments in Support of the Proposed Rule

    Several commenters, including Alaska Native Tribes and Tribal 
entities, were supported the rule. Among the reasons stated for support 
of the rule were:
     The rule will reduce Tribal expenses by not requiring the 
submission of data to maintain roads on the inventory.
     The rule is fairer, by removing the burden for those 
affected to go back and enter data for proposed roads that were added 
to the inventory when such requirements were not present.
     The rule eliminates a provision that was incompatible with 
the statutory requirement for the Secretary to maintain a national 
inventory that is comprehensive.
     The proposed roads must remain on the inventory, by law, 
because the statutory requirements for inclusion on the inventory have 
not changed since 2005.
     Removing the proposed roads from the inventory would waste 
the extensive

[[Page 17498]]

investments that Tribes have already made in transportation planning 
and public engagement regarding these roads.
     Removal of proposed roads from the inventory would 
undermine the effort and expense in carrying out the FHWA-approved 
transportation planning processes, and have immediate effects in that 
certain Alaska Native Tribes could no longer work on critical access 
routes, or carry out route-staking that improves approximately 1,100 
miles of winter trails to prevent injury and death for traveling 
between villages.
     Tribes do not have the resources to supplement existing 
data for all their proposed roads at once to maintain them on the 

B. Comments Opposed to the Proposed Rule

    Representatives of several large, land-based Tribes and one Alaska 
Native corporation strongly opposed the proposed rule. The primary 
basis for opposing the rule was a concern that many of the proposed 
roads on the NTTFI that were submitted without data are essentially 
``ghost roads'' that will never be built because they are not 
financially feasible or cannot legally be built (e.g., a proposed road 
crossing miles of ocean or within a National Wildlife Refuge) and were 
added for the sole purpose of increasing Tribal funding shares. These 
representatives stated that, by allowing these ``ghost roads'' to 
remain on the inventory, the rule would:
     Divert funding from existing roads in the NTTFI that are 
in need of repair and other proposed roads in the NTTFI that will 
actually be built.
     Exacerbate the current situation where the majority of 
funding is going to support non-reservation roads (State, county, and 
city roads comprise approximately 65% to 70% of the roads in the NTTFI) 
while there is a serious backlog of deferred maintenance at existing 
reservation roads.
     Continue to impose a discriminatory two-tier class system 
on Tribes in Alaska, where approximately 20% of Alaska Tribes, 
clustered in three Alaska Native regions, receive approximately 80% of 
the TTP funding made available in Alaska.
     Perpetuate the current disproportionate funding 
distribution, which according to a commenter, Congress has frozen until 
NTTFI data is ``fixed.''
     Conflict with statutory requirements at 23 U.S.C. 134 and 
135 that the proposed projects must be fiscally constrained because 
there would be no funding to build the majority of proposed roads that 
are currently in the NTTFI within a reasonable period.
     Reward those who disregarded Federal standards and BIA 
guidance regarding what data should be provided while punishing those 
that operated within the constraints for 20- and 30-year long-range 
planning requirements.

C. Other Comments

    One comment supported the rule overall but objected to enforcing 
the requirement for additional data when changes or updates to the 
inventoried roads occur, because updates should not trigger data 
collection in order to keep the road on the inventory.

D. Response to Comments

    BIA has determined, after consideration of all the input received 
during this rulemaking process, that removal of the requirement for 
data collection, as proposed, would be the most fair and de-regulatory 
course of action. Because the funding formula is prescribed by statute, 
and as established in 23 U.S.C. 202(b) uses data from the 2004 and 2012 
inventory, there are currently no funding implications to maintaining 
these roads on the inventory. It is possible that Congress will change 
the formula or establish an entirely new formula at some point. To 
remove the proposed roads from the NTTFI in the meantime would unfairly 
disadvantage those who added proposed roads to the inventory under the 
data collection requirements at the time. BIA also determined that it 
is appropriate to continue to require the data to change or update 
inventoried proposed roads because the changes or updates will meet the 
intent of the original provision in the regulation in managing data 
increases in the inventory. The Department declines to speculate on 
whether or how Congress will change the formula and at what date--
historical or future--Congress will choose for an inventory snapshot 
for use in the formula.

II. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 

B. E.O. 13771: Reducing Regulation and Controlling Regulatory Costs

    This action is not an E.O. 13771 regulatory action because this 
rule is not significant under Executive Order 12866.

C. Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
It does not change current funding requirements and would not impose 
any economic effects on small governmental entities.

D. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (a) Will not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of the 
U.S.-based enterprises to compete with foreign-based enterprises.

E. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

[[Page 17499]]

F. Takings (E.O. 12630)

    This rule does not effect a taking of private property or otherwise 
have taking implications under E.O. 12630. A takings implication 
assessment is not required.

G. Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. A federalism summary impact 
statement is not required.

H. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of E.O. 12988. 
Specifically, this rule: (a) Meets the criteria of section 3(a) 
requiring that all regulations be reviewed to eliminate errors and 
ambiguity and be written to minimize litigation; and (b) meets the 
criteria of section 3(b)(2) requiring that all regulations be written 
in clear language and contain clear legal standards.

I. Consultation With Indian Tribes (E.O. 13175)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and Tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in E.O. 13175 and have consulted with Tribes, as described above.

J. Paperwork Reduction Act

    OMB Control No. 1076-0161 currently authorizes the collections of 
information contained in 25 CFR part 170, with an expiration of March 
31, 2020. The current authorization totaling an estimated 23,448 annual 
burden hours. This rule will decrease the annual burden hours by an 
estimated 2,520 hours. This decrease is due to the elimination of the 
requirement for Tribes to provide information on proposed roads that 
are already included on the inventory. This change would require a 
revision to an approved information collection under the Paperwork 
Reduction Act (PRA), 44 U.S.C. 3501 et seq. for which the Department is 
requesting OMB approval.
    OMB Control Number: 1076-0161.
    Title: Tribal Transportation Program, 25 CFR 170.
    Brief Description of Collection: The information submitted by 
Tribes allows them to participate in planning the development of 
transportation needs in their area; the information provides data for 
administration, documenting plans, and for oversight of the program by 
the Department. Some of the information such as the providing inventory 
updates (25 CFR 170.444), the development of a long-range 
transportation plan (25 CFR 170.411 and 170. 412), the development of a 
Tribal transportation improvement program (25 CFR 170.421), and annual 
report (25 CFR 170.420) are mandatory to determine how funds will 
allocated to implement the Tribal Transportation Program. Some of the 
information, such as public hearing requirements, is necessary for 
public notification and involvement (25 CFR 170.437 and 170.438), while 
other information, such as a request for exception from design 
standards (25 CFR 170.456), is voluntary. The revision accounts for 
updates made to Sec.  170.443, removing the requirement to provide 
information for proposed roads that existed in the inventory as of 
November 7, 2016. Comments on the removal of the requirement are 
addressed in the preamble, above.
    Type of Review: Revision of a currently approved collection.
    Respondents: Federally recognized Indian Tribes.
    Number of Respondents: 281 on average (each year).
    Number of Responses: 1,504 on average (each year).
    Frequency of Response: On occasion.
    Estimated Time per Response: Varies from 0.5 hours to 40 hours.
    Estimated Total Annual Hour Burden: 20,928 hours.
    The recordkeeping requirements contained in section 170.472 are 
authorized under OMB Control No. 1076-0136, applicable to self-
determination and self-governance contracts and compacts under 25 CFR 
900 and 1000.
    Please note that an agency may not sponsor or request, and an 
individual need not respond to, a collection of information unless it 
displays a valid OMB Control Number.

K. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because this is an administrative and procedural regulation. 
(For further information see 43 CFR 46.210(i)). We have also determined 
that the rule does not involve any of the extraordinary circumstances 
listed in 43 CFR 46.215 that would require further analysis under NEPA.

L. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211. A Statement of Energy Effects is not required.

M. Determination To Issue an Final Rule With Immediate Effective Date

    We are publishing this final rule with an immediate effective date, 
as allowed under 5 U.S.C. 553(d)(3). Good cause for an immediate 
effective date exists because the delay in publishing this rule would 
cause confusion, as the current regulation being replaced would 
otherwise go into effect on March 6, 2020.

List of Subjects in 25 CFR Part 170

    Highways and roads, Indians-lands.

    For the reasons stated in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, amends 25 CFR part 170 as follows:


1. The authority citation for part 170 continues to read as follows:

    Authority:  Pub. L. 112-141, Pub. L. 114-94; 5 U.S.C. 2; 23 
U.S.C. 201, 202; 25 U.S.C. 2, 9. Authority: Pub. L. 112-141, Pub. L. 
114-94; 5 U.S.C. 2; 23 U.S.C. 201, 202; 25 U.S.C. 2, 9.

2. In Sec.  170.443, revise paragraph (b) to read as follows:

Sec.  170.443   What is required to successfully include a proposed 
transportation facility in the NTTFI?

* * * * *
    (b) For those proposed roads that were included in the NTTFI as of 
November 7, 2016, the information in paragraphs (a)(1) through (8) of 
this section may be submitted for approval to BIA and FHWA at any time, 
but is not required in order for those proposed roads to remain in the 
NTTFI, unless any changes or updates to the proposed road were (or are) 
made after that date.

    Dated: February 24, 2020.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2020-06061 Filed 3-27-20; 8:45 am]