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Distribution of Fiscal Year 2001 Indian Reservation Roads Funds
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 9, 2001 (Volume 66, Number 6)]
[Rules and Regulations]
[Page 1576-1580]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ja01-7]
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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 leroygishi@bia.gov
(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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