00-15151. Distribution of Fiscal Year 2000 Indian Reservation Roads Funds

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Temporary rule.

SUMMARY:

We are issuing a temporary rule requiring that we distribute the remaining fiscal year 2000 Indian Reservation Roads funds to projects on or near Indian reservations using the relative need formula. This rule includes more accurate data for the States of Washington and Alaska in the relative need formula distribution process for fiscal year 2000.

DATES:

This temporary rule is effective on June 16, 2000. Section 170.4b expires September 30, 2000.

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), 202-208-4696 (fax), or [e-mail] (electronic mail).

SUPPLEMENTARY INFORMATION:

Background

Where Can I Find General Background Information on the Indian Reservation Roads Program, the Relative Need Formula, and the Transportation Equity Act for the 21st Century Negotiated Rulemaking Process?

The background information on the IRR program, the relative need formula, and the Transportation Equity Act for the 21st Century (TEA-21) Negotiated Rulemaking process is detailed in the first temporary rule published in the Federal Register on February 15, 2000 (65 FR 7431). You may obtain additional information on the Indian Reservation Roads (IRR) program web site at www.irr.bia.gov.

What Was the Basis for the Distribution of the First Half of Fiscal Year 2000 IRR Funds?

TEA-21 provided 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, but has not yet been able to agree on a permanent funding formula. Without a permanent funding formula recommendation from the Committee, under TEA-21 the Secretary did not have a basis on which to distribute fiscal year 2000 IRR funds. Therefore, on January 26, 2000, the TEA-21 Negotiated Rulemaking Committee agreed, based on the tribal committee members' consensus, to recommend to the Secretary that fiscal year 2000 IRR funds be distributed under the current relative need formula. The tribal committee members' consensus and recommendation to the Bureau of Indian Affairs (BIA) stated: “We request that the BIA resolve this problem for non-reporting states by using the price index data from the most recent year for which the state submitted data.”

In addition, in order to distribute $18.3 million under Public Law 106-96, an extra, one-time Department of Transportation appropriation for fiscal year 2000 IRR program, the consensus agreement provided that the BIA distribute the funds to federally-recognized Indian tribes and Alaskan Native Villages based on a timely receipt of applications and scopes of work who have not completed adequate transportation planning within the last 5 years or that have deficient IRR bridges. The BIA published the Federal Register Notice on March 7, 2000 (65 FR 12026), requesting proposals from eligible tribes and Alaskan Native Villages by April 6, 2000.

How is the FHWA Price Trends Report Used in the Current Relative Need Formula?

The cost to construct one mile of road (cost-to-construct) changes from year-to-year due to fluctuations in the cost of overall highway construction prices (materials, techniques and demand). The cost-to-construct fluctuates from BIA Region-to-Region and State-to-State. The method used within the IRR program to track and adjust for the fluctuations in the cost-to-construct between BIA Regions is through the use of price trend data. This data is found in the FHWA report, Price Trends for Federal-Aid Highway Construction. This report indicates the fluctuations in the cost of overall highway construction prices.

The FHWA Federal-Aid Division offices and States compile and report construction cost data annually to the FHWA. The reports reflect unit contract quantities with their associated unit bid costs for highway construction. The FHWA computes an index for each State from the bid information submitted. If no information is provided, a zero index is recorded.

From these unit bid costs reports, FHWA publishes price trend reports quarterly. The Price Trend report is broken down into five categories and are implemented into the relative need formula as incidental construction, grade and drain construction, gravel construction, pavement construction and bridge construction.

Because the price trend report reflects the latest highway construction price trends, it is used to adjust and update existing BIA Regional cost-to-construct amounts for incidental construction, grade and drain construction, gravel construction, pavement construction and bridge construction. The adjusted and updated cost-to-construct amounts are then used to update the cost to improve portion of the relative need formula.

How Will the Secretary Distribute the Remaining Fiscal Year 2000 IRR Funds?

Upon publication of this temporary rule, the Secretary will distribute the remaining fiscal year 2000 IRR funds using the current relative need formula, adjusting the indices from the FHWA Price Trends Report using the latest reported data from non-reporting states in the relative need formula distribution process. This includes an adjustment that replaces the zero indices with the most recent data reported for those states that did not report data for the report. In making this decision, the Secretary considered the tribal committee members' consensus which was adopted by the full TEA-21 Negotiated Rulemaking Committee on January 26, 2000, as well as public comments received as a result of the Federal Register Notice of February 15, 2000. The agreement provided that the Secretary review the FHWA Price Trends Report and make adjustments in the cost-to-construct factor of the current relative need formula by using the latest reported data from the two states, Alaska and Washington, which did not report in 1998. The Secretary decided to use the 1996 and 1997 partial indices for Alaska and the 1997 indices for Washington. The Secretary determined that this manner of dealing with 1998 non-reporting states fulfills the TEA-21 committee's intent in its January 26, 2000, consensus agreement.

How Does Distribution of the Remaining Fiscal Year 2000 IRR Funds Differ From the Partial Distribution Under the First Temporary Rule?

The Secretary partially distributed fiscal year 2000 IRR funds using the current relative need formula on February 15, 2000, in order to get crucial funds to ongoing IRR projects. In this second distribution, the Secretary is distributing funds under the relative need formula by correcting FHWA price trend indices for the two non-reporting states that impacts tribes in those non-reporting states. This adjustment affects the distribution of IRR funds to each IRR Region for the entire fiscal year 2000, including those funds already distributed. This adjustment is required for fiscal year 2000 funds since any adjustment to the FHWA price trend indices affects each regions funding amount because the total amount to distribute is constant.

Why is it Necessary for the Secretary to Publish a Second Temporary Rule for Distribution of the Remaining Fiscal Year 2000 IRR Funds?

Without this second temporary rule, the Secretary has no authority to distribute the remaining fiscal year 2000 IRR funds under TEA-21. On February 15, 2000, the Secretary issued a temporary rule for distributing the one-half of the fiscal year 2000 IRR funds using the current relative need formula. After requesting public comments in the first temporary rule and upon review, the Secretary has decided the distribution method for the remaining fiscal year 2000 IRR funds. By publishing this second temporary rule for the remaining fiscal year 2000 distribution of IRR funds and making it effective upon publication, the Secretary is ensuring distribution of all available IRR funds in 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 the remaining fiscal year 2000 funds. 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 and Indian lands and communities. Furthermore, the TEA-21 Committee and the Secretary agreed to distribute these funds using the relative need formula, adjusting the FHWA Price Trends indices, because both the tribes and the BIA understand its use and there is no other available funding formula.

What Public Comments Did You Receive on the Distribution of the Remaining Fiscal Year 2000 IRR Funds?

Over half of the commenters supported using the current relative need formula to distribute the remaining fiscal year 2000 IRR funds. The Secretary is distributing the remaining fiscal year 2000 IRR funds based on the current relative need formula.

Several commenters advised adjusting the FHWA Price Trends for Federal-Aid Highway Construction Report data to reflect the latest indices data for 1998 non-reporting states. The Secretary considered these comments and considered the TEA-21 Committee tribal members' caucus suggestion that the FHWA Report indices be adjusted to account for the 1998 non-reporting states. The Secretary determined, based on these comments, to adjust the FHWA Report data to account for the non-reporting states.

Several commenters opposed using the FHWA Report data to adjust distribution under the current relative need formula. As stated above, the Secretary determined that adjusting the FHWA Report data to reflect the latest data from non-reporting states for the relative need formula most consistently reflected the current and past use of the relative need formula.

A few commenters stated that BIA should correct the FHWA's price trend indices only for non-reporting states. The Secretary corrected the indices only for non-reporting states, as stated above.

One commenter noted that BIA continues to use adjusted mileage in determining the Alaska Region's relative need and states that this method is improper and should be discontinued. The current relative need formula uses adjusted miles for all Regions in determining the distribution based on relative need and the Secretary continues to use adjusted mileage in the relative need formula in determining the relative need for all Regions.

A few commenters asked that BIA distribute the remaining fiscal year 2000 IRR funds as soon as possible. The Secretary is publishing this rule to expedite the distribution upon publication of this rule.

One commenter suggested a special town hall meeting for tribes to discuss a new relative need formula. By statute, the TEA-21 Negotiated Rulemaking Committee was created to develop a funding formula using relative need and the Committee is in the process of developing a formula.

Some commenters supported freezing FHWA price trend indices at the 1999 level. By using the current data for 31 of the 33 states that reported adequate data for 1999, the Secretary is continuing to use the current relative need formula so there is no need to freeze the indices at the 1999 level.

A few commenters supported rolling back non-reporting states' price trend indices to their most recent reporting years. By using the current data for 31 of the 33 states that reported adequate data for 1999, the Secretary is continuing to use the current relative need formula which uses the 1999 FHWA price trend indices. In addition, the Secretary has determined to use the most recent reporting years for FHWA price trend indices for the states of Alaska and Washington since they had no reports for 1999.

A number of commenters were dissatisfied with the language of the first temporary rule because it did not explain each of the TEA-21 Committee tribal caucus members points in its January 26, 2000, consensus agreement which was the basis of the recommendation to the Secretary to distribute fiscal year 2000 IRR funds under the current relative need formula. This issue has been addressed in an earlier part of this rule on how the first half of fiscal year 2000 IRR funds were distributed by describing the full consensus agreement.

Why Does This Second Temporary Rule Not Allow For Notice and Comment on the Distribution of the Remaining Fiscal Year 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 remaining fiscal year 2000 IRR funds. Approximately 950 road and bridge construction projects are at various phases that depend on this fiscal year's remaining funds, including 169 deficient bridges and the construction of approximately 400 miles of roads. The remaining fiscal year 2000 IRR funds will be used to design, plan, and construct improvements (and, in some cases, to reconstruct bridges). The construction season (which is very short for some of the reservations) ends 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 currently in progress are directly associated with environmental protection and preservation of historic and cultural properties. This second temporary rule is going into effect immediately because of the urgent need for distributing the remaining fiscal year 2000 funds to continue these construction projects before the end of the construction seasons in the 12 Regions.

Under this second temporary rule, we are only distributing the remaining fiscal year 2000 IRR funds to IRR projects in the 12 BIA Regions. The TEA-21 Negotiated Rulemaking Committee is working on a permanent funding formula which 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. 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 second 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 in the preamble to the first temporary rule (65 FR 7431, February 15, 2000), the total amount of the fiscal year 2000 IRR funds is approximately $200 million, $100 million of which we distributed to the 12 BIA Regions for IRR projects on February 15, 2000. Under this second temporary rule we will distribute the remaining IRR funds to the 12 BIA regions. Congress has already appropriated these funds and FHWA 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 remaining fiscal year 2000 IRR funds is a benefit. Approximately 950 road and bridge construction projects are at various phases that depend on this fiscal year's remaining funds, including 169 deficient bridges and the construction of approximately 400 miles of roads. Leaving these ongoing projects unfunded in the second half of fiscal year 2000 would create undue hardship on tribes and tribal members. Lack of this 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 second temporary rule is consistent with the policies and practices that currently guide our distribution of IRR funds. This second temporary rule continues to adopt the relative need formula that we have used since 1993. However, based on comments we received on the first temporary rule and data compiled and reviewed by the BIA Division of Transportation, we are adjusting the FHWA Price Trends Report indices for the two states that do not have current 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. All states except Alaska and Washington have updated reports through 1998. For the indices for those two states, we have gone back to their latest reporting years and used those figures in the relative need formula. By accounting for the indices for the two non-reporting states, we are adjusting the relative need formula in those Regions, which adjusts the allocation for all BIA Regions for the distribution of the remaining fiscal year 2000 IRR funds. The adjustments in this second distribution account for any differences between the amounts that were distributed under the first temporary rule and this one.

This temporary rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another Federal agency. FHWA has transferred the IRR funds to us, and the FHWA representatives on the Committee have joined in the consensus mentioned above.

This temporary rule does alter the budgetary effects on some tribes, but 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. This temporary rule is based on the relative need formula, in use since 1993. We are changing the current practice of determining relative need only by accounting for the two states that did not report data for the 1998 FHWA Price Trends Report.

Regulatory Flexibility Act

A Regulatory Flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is not required for this second 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 in the preamble to the first temporary rule (65 FR 7431, February 15, 2000), the total amount of fiscal year 2000 IRR funds is approximately $200 million, $100 million of which we distributed to IRR projects under the first 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 funds, especially under the relative need formula with which the tribal governments, 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 remaining funds, including 169 deficient bridges and the construction of approximately 400 miles of roads. Delaying work on many of these projects in fiscal year 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.

Critical Need for This Rule

Under 5 U.S.C. 553(B), 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 remaining fiscal year 2000 IRR funds for ongoing projects. Approximately 950 road and bridge construction projects are at various phases that depend on this fiscal year's remaining funds, including 169 deficient bridges and the construction of approximately 400 miles of roads. The fiscal year 2000 IRR funds are used to design, plan, and construct improvements and, in some cases, to reconstruct bridges. They are also used to address safety problems in almost every ongoing project. Completion of ongoing fiscal year 2000 projects must take place before the construction season (which is very short for some of the reservations) ends in the next few months.

Waiting for notice and comment on this second 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.

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 ongoing 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 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. 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 fiscal year 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 this temporary rule preserves the integrity and consistency of the relative need formula process we have used since 1993. However, based on comments we received on the first temporary rule and data compiled and reviewed by the BIA Division of Transportation, we are adjusting the FHWA Price Trends Report data for two states which do not have current 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. All states except Alaska and Washington have updated reports through 1998. For the indices for those two states, we have gone back to their latest reporting years and used those figures in the cost-to-improve portion of the relative need formula. By accounting for the two indices for the two non-reporting states, we are adjusting the relative need formula in those regions which adjusts the allocation for all regions for the remaining distribution of fiscal year 2000 IRR funds. The adjustments in this distribution account for any differences between the amounts distributed under the first temporary rule and this one. 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

• 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. Revise § 170.4b to read as follows:

§ 170.4b

What formula will you use to distribute the remaining fiscal year 2000 Indian Reservation Roads funds?

From June 16, 2000 through September 30, 2000, the Secretary will distribute the remaining fiscal year 2000 IRR funds authorized under Section 1115 of the Transportation Equity Act for the 21st Century, Public Law 105-178, in accordance with this section.

(a) The Secretary will distribute funds to Indian Reservation Roads and Bridges projects on or near Indian reservations under the relative need formula established and approved in January 1993.

(b) The Secretary will adjust the relative need formula to account for non-reporting states by inserting the latest data reported for those states for use in the relative need formula process (23 U.S.C. 202(d)).

Dated: June 9, 2000.

Kevin Gover,

Assistant Secretary—Indian Affairs.