[Federal Register Volume 65, Number 31 (Tuesday, February 15, 2000)]
[Rules and Regulations]
[Pages 7431-7434]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 00-3512]



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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 170

RIN 1076-AD99


Distribution of Fiscal Year 2000 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 
one-half of the Fiscal Year 2000 Indian Reservation Roads (IRR) funds 
to projects on or near Indian reservations using the Relative Need 
Formula adopted in 1993. We are also requesting comments on the formula 
for distribution of the remaining portion of the Fiscal Year 2000 
funds. After consideration of comments, we will issue a final rule for 
distribution of the remaining portion of the Fiscal Year 2000 IRR 
funds.

DATES: This temporary rule is effective on February 15, 2000. Comments 
on the formula for distribution of the remaining portion of the Fiscal 
Year 2000 IRR funds must be postmarked by March 16, 2000.

ADDRESSES: You may send comments on the formula for distribution of the 
remaining portion of the Fiscal Year 2000 IRR funds to: LeRoy Gishi, 
Chief, Division of Transportation, Office of Trust Responsibility, 
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), 202-
208-4696 (fax), or leroygishi@bia.gov (electronic mail).

FOR FURTHER INFORMATION CONTACT: LeRoy Gishi, 202-208-4359.

SUPPLEMENTARY INFORMATION:

Background

What Is the IRR Program?

    Indian Reservation Roads (IRR) are typically among the most poorly 
maintained roads in the nation, in great need of development and 
repair. Many tribes do not even have road systems. This creates great 
difficulty in meeting everyday needs such as busing school students or 
getting medical attention for the sick and elderly. Tribes are 
dependent on timely distribution of IRR funds to develop and complete 
construction on projects started in previous years, especially since 
weather and time can cause damage to a partially completed project or 
prevent a project from being started and since many tribes will be 
moving into rainy seasons in the near future. The inability to enter 
construction contracts in a timely fashion further delays and hinders a 
tribe's ability to provide for its transportation needs.
    The IRR program is jointly administered by the Bureau of Indian 
Affairs (BIA) and the Federal Lands Highway office (FLH) of the Federal 
Highway Administration. The IRR program governs the planning, design, 
construction, maintenance and general administrative responsibility for 
IRR. The duties of each agency under the IRR program are set forth in a 
Memorandum of Agreement between the two agencies. In brief, the BIA 
works with tribal governments and tribal organizations to develop an 
annual priority program of construction projects which is submitted to 
the FLH for review and approval. Each fiscal year FLH determines the 
amount of funds available for construction. Then, the FLH and the BIA 
develop an IRR program funding plan for the fiscal year. Funds are 
allocated from the FLH to the BIA and distributed by the Secretary of 
the Interior (Secretary) to IRR projects on or near Indian 
reservations. Since 1993, IRR funds have been distributed according to 
the Relative Need Formula.

What Is the Relative Need Formula?

    The Relative Need Formula is the method by which we have 
distributed IRR funds each fiscal year for IRR projects in each of the 
BIA's twelve regions. The Relative Need Formula we are adopting in this 
temporary rule is based on 20 percent population, 30 percent vehicle 
miles traveled (average daily traffic multiplied by the total miles in 
the IRR system), and 50 percent cost-to-improve roads in the IRR 
system. It will be used to compute the percentage of Highway Trust 
Funds we distribute to our Regional Offices for use on approved 
projects in a uniform, equitable manner based on the relative needs of 
the various Indian reservations. The Relative Need Formula ranks road 
and bridge improvements by the estimated cost to bring roads and 
bridges located within or providing access to an Indian reservation to 
an adequate and safe standard. We have used this funding formula since 
it was generally accepted by tribes and approved in 1993.

What Is the Status of the TEA-21 Rule Making Process?

    In 1998, Congress passed the Transportation Equity Act for the 21st 
Century (TEA-21), Pub. L.105-178. Under TEA-21, the Secretary must 
issue regulations governing the IRR program and establish a formula 
distributing IRR funds for Fiscal Year (FY) 2000 and subsequent years. 
The Secretary must develop the regulations and funding formula through 
the use of a negotiated rulemaking process and must issue them by 
September 1999.
    Accordingly, the Secretary established the TEA-21 Negotiated 
Rulemaking Committee (Committee). As required by TEA-21, tribal 
representation on the Committee reflects a balance of interests 
including: geographically diverse small, medium and large tribes; 
direct service, self-determination and self-governance tribes; and 
tribes with various levels and types of experience in the diverse 
concerns of transportation development and management. The Committee 
consists of 29 tribal representatives and 13 Federal members.
    The Committee has met monthly since March 1999 in locations that 
permit the greatest attendance and participation by tribal members. 
Among the earliest actions of the Committee was to divide into four 
workgroups to address the broad areas of concern for the IRR program: 
the Technical Standards workgroup, the Delivery of Services workgroup, 
the Policy workgroup and the Funding Formula workgroup. Each of the 
workgroups works closely with the full Committee to identify specific 
problems and develop a regulation and formula to address those 
problems. Despite the diligence of the Committee, it was unable until 
recently to reach a consensus on a funding formula that would permit 
the distribution of IRR funds for FY 2000. As a result, there has been 
no mechanism in place for the distribution of funds during FY 2000.
    Recognizing that an inability to distribute IRR funds (totaling 
approximately $200 million for FY 2000) causes undue hardship to 
tribes, the Committee reached a consensus at its January 2000 meeting 
in Albuquerque, New Mexico, concerning the distribution of funds. The 
Committee recommended that for FY 2000, the Secretary should distribute 
funds to IRR projects according to the Relative Need Formula as used in 
FY 1998 and 1999 (the same formula adopted in 1993 and described 
above). This recommendation reflects the consensus of the Committee's 
tribal representatives who are in the best position to articulate what 
is acceptable to the tribes. Federal members of the Committee agreed to 
the recommendation, as it allows us to distribute needed money and 
permits the Federal government to fulfill its duties under the IRR 
program. This recommendation is consistent with the

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TEA-21 requirement that the Secretary distribute funds according to a 
formula recommended by the Committee. Moreover, it frees the Committee 
to continue its work toward a final formula and regulations.
    This temporary rule will allow the Secretary to distribute one-half 
of FY 2000 IRR funds according to the Relative Need Formula. As noted 
above, the temporary rule is effective on the publication of this 
notice. We are also requesting comments from the public regarding the 
distribution of the remainder of FY 2000 IRR funds. The Committee will 
also use those comments in its continuing work towards a final formula 
for future fiscal years.

Why Does the Secretary Need To Publish This Temporary Rule in the 
Federal Register?

    With the Committee's consensus on the tribal Committee members' 
proposal to distribute FY 2000 IRR funds using the Relative Need 
Formula, the Secretary is proceeding with this temporary rule to ensure 
distribution of FY 2000 IRR funds during this fiscal year. Tribes 
depend on continued funding during their planned one-to-three year road 
and bridge construction projects. There are approximately 950 ongoing 
road and bridge construction projects on over 25,000 road miles and 740 
bridges on or near Indian reservations that will not continue without 
FY 2000 funding. This temporary rule allows the Secretary to continue 
to fund the IRR program to provide safe and adequate bridges and road 
access to and within Indian reservations, Indian lands and communities 
by distributing funds through FY 2000. Furthermore, the Committee and 
the Secretary agreed to use the Relative Need Formula to distribute 
these funds because both the tribes and the BIA understand its use and 
because there is currently no potentially effective and reasonably 
feasible alternative formula.

Why Does This Temporary Rule Not Allow For Notice and Comment on the 
Distribution of One-Half of the FY 2000 IRR Funds, and Why Is It 
Effective Immediately?

    Under 5 U.S.C. 553(b)(3)(B), notice and public procedure on this 
temporary rule are impracticable, unnecessary, and contrary to the 
public interest. In addition, we have good cause for making this rule 
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 first half of the FY 2000 IRR funds. Approximately 950 
road and bridge construction projects are at various phases that depend 
on this fiscal year's funds, including 169 deficient bridges and the 
construction of approximately 400 miles of roads. The FY 2000 IRR funds 
would be used to design, plan, and construct improvements (and, in some 
cases, to reconstruct bridges). Designing and planning improvements 
must take place before the construction season (which is very short for 
some of the reservations) begins in the next few months.
    Waiting for notice and comment on this temporary rule would be 
contrary to the public interest. In some of our 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 current 
projects (for which funding would be jeopardized by waiting) 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 these construction 
projects and the short time available for planning and construction.
    Under this temporary rule, we are distributing only one-half of the 
FY 2000 IRR funds to address the most urgent needs while allowing for 
public comment on distribution of the other half of the FY 2000 IRR 
funds. In addition, the Committee is working on a permanent formula, 
which if adopted by the Secretary will be subject to full public notice 
and comment before we promulgate it as a final rule.

Clarity of This Temporary Rule

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. In addition to the comments requested 
above, 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 (E.O. 12866)

    Under the criteria in Executive Order 12866, this temporary rule is 
a significant regulatory action, and the Office of Management and 
Budget has reviewed it, because it will have an annual effect of $100 
million or more on the economy. As noted above, the total amount of FY 
2000 IRR funds is approximately $200 million, $100 million of which we 
would distribute to IRR projects under this temporary rule. Congress 
has already appropriated these funds and FLH has already allocated them 
to BIA. The cost to the government of distributing the IRR funds, 
especially under the Relative Need Formula with which the tribal 
governments and tribal organizations and the BIA are already familiar, 
is therefore negligible. The distribution of the IRR funds does not 
require the tribal governments and tribal organizations to expend any 
of their own funds; in fact, distribution of the IRR funds is a 
benefit. Approximately 950 road and bridge construction projects are at 
various phases that depend on this fiscal year's funds, including 169 
deficient bridges and the construction of approximately 400 miles of 
roads. Leaving these projects unfunded in FY 2000 would 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 temporary rule conforms to the policies and practices that 
currently guide our distribution of IRR funds. We do not anticipate 
that this regulation will have a significant effect on which IRR 
projects are eligible for funding. It will not adversely affect in a 
material way the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities. This temporary rule simply adopts the 
Relative Need Formula that we have used since 1993. In addition, the 
temporary rule only applies to a portion of the available funds for 
Fiscal Year 2000, and the final distribution formula may include an 
adjustment to account for any differences between the amounts 
distributed under this temporary rule and the distributions under the 
final formula.

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    This temporary rule will not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another Federal 
agency. FLH has transferred the IRR funds to us, and the FLH 
representatives on the Committee have joined in the consensus mentioned 
above.
    This temporary rule does not alter the budgetary effects or 
entitlement, grants, user fees, or loan programs or the rights or 
obligations of their recipients. This temporary rule simply uses the 
Relative Need Formula that we have used since 1993. In addition, the 
temporary rule only applies to a portion of the available funds for 
Fiscal Year 2000, and the final distribution formula may include an 
adjustment to account for any differences between the amounts 
distributed under this temporary rule and the distributions under the 
final formula.
    This temporary rule does not raise novel legal or policy issues. 
This temporary rule is based on the Relative Need Formula, in use since 
1993. We are not changing the current practice with this temporary 
rule, except by dividing the distribution into two parts.

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. As noted above, the total amount 
of FY 2000 IRR funds is approximately $200 million, $100 million of 
which we would distribute to IRR projects under this temporary rule. 
Congress has already appropriated these funds and FLH has already 
allocated them to BIA. The cost to the government of distributing the 
IRR funds, especially under the Relative Need Formula with which the 
tribal governments and tribal organizations and the BIA are already 
familiar, is therefore negligible. The distribution of the IRR funds 
does not require the tribal governments and tribal organizations to 
expend any of their own funds; in fact, distribution of the IRR funds 
is a benefit. Approximately 950 road and bridge construction projects 
are at various phases that depend on this fiscal year's funds, 
including 169 deficient bridges and the construction of approximately 
400 miles of roads. Delaying work on many of these projects in FY 2000 
would create undue hardship on tribes and tribal members, since 
partially constructed road and bridge projects would jeopardize the 
health and safety of the traveling public. Thus, the benefits of this 
rule far outweigh the costs.
    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 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.
    Under 5 U.S.C. 808(2), this temporary rule may take effect 
immediately upon publication in the Federal Register (as noted above in 
the DATES section) because notice and public procedure thereon are 
impracticable, unnecessary, and contrary to the public interest. Notice 
and public procedure would be impracticable because of the urgent need 
to distribute the first half of the FY 2000 IRR funds. Approximately 
950 road and bridge construction projects are at various phases that 
depend on this fiscal year's funds, including 169 deficient bridges and 
the construction of approximately 400 miles of roads. The FY 2000 IRR 
funds would be used to design, plan, and construct improvements (and, 
in some cases, to reconstruct bridges). Designing and planning 
improvements must take place before the construction season (which is 
very short for some of the reservations) begins in the next few months.
    Waiting for notice and comment on this temporary rule would be 
contrary to the public interest. In some of our 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. Defective 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 current 
projects (for which funding would be jeopardized by waiting) are 
directly associated with environmental protection and preservation of 
historic and cultural properties.
    Under this temporary rule, we are distributing only one-half of the 
FY 2000 IRR funds to address the most urgent needs while allowing for 
public comment on distribution of the other half of the FY 2000 IRR 
funds. In addition, the Committee's recommendation for the ultimate 
distribution formula for IRR funds (after FY 2000) is undergoing public 
notice and comment as part of the negotiated rulemaking process, and 
that ultimate formula, if adopted by the Secretary, will again be 
subject to full public notice and comment before we promulgate it as a 
final rule.

Unfunded Mandates Reform Act

    Under the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.), the 
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. Rather, the overall effect of this 
temporary rule is to provide money to tribal governments for IRR 
construction projects.

Takings (E.O. 12630)

    With respect to Executive Order 12630, the temporary 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 (E.O. 13132)

    With respect to Executive Order 13132, the temporary 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 
temporary 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 E.O. 13132.

Civil Justice Reform (E.O. 12988)

    This temporary 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 temporary rule contains no drafting errors or ambiguity and 
is written to minimize litigation, provides clear

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standards, simplifies procedures, reduces burden, and is clearly 
written. This temporary rule does not preempt any statute. We are still 
pursuing the TEA-21 mandated negotiated rulemaking process, and the 
final distribution formula may include an adjustment to account for any 
differences between the amounts distributed under this temporary rule 
and the distributions under the final formula. The temporary 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 pending FY 2000 funding.

Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this temporary 
rule does not impose recordkeeping 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 temporary 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 temporary 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 there are 
no potential adverse effects. This temporary rule is based on the 
Relative Need Formula, in use since 1993. We are not changing the 
current practice with this temporary rule. Consultation with tribal 
governments and tribal organizations is ongoing as part of the 
negotiated rulemaking process.

Comments

    Our practice is to make comments, including the names and addresses 
of persons commenting, available for public review during regular 
business hours. Persons commenting as private individuals may request 
that we withhold their home address from the rulemaking record, which 
we will honor to the extent allowable by law. There may also be 
circumstances in which we would withhold from the rulemaking record a 
commenter's identity, as allowable by law. If you wish us to withhold 
your name and/or address, you must state this prominently at the 
beginning of your comment. We will not consider anonymous comments. 
Comments from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, will be available for public inspection in their 
entirety.

List of Subjects in 25 CFR Part 170

    Indians--Highways and Roads.

    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), 
208, 308), unless otherwise noted.

    2. Add Sec. 170.4b to read as follows:


Sec. 170.4b  What formula will you use to distribute Fiscal Year 2000 
Indian Reservation Roads Funds?

    From February 15, 2000 through September 30, 2000, the Secretary 
will distribute one-half of the Fiscal Year 2000 funds authorized under 
Section 1115 of the Transportation Equity Act for the 21st Century, 
Pub. L. 105-178, to Indian Reservation Roads and Bridges projects on or 
near Indian reservations under the Relative Need Formula established 
and approved in January 1993. (23 U.S.C. 202(d)).

    Dated: February 8, 2000.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 00-3512 Filed 2-14-00; 8:45 am]
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