03-20776. Distribution of Fiscal Year 2003 Indian Reservation Roads Funds

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Final rule.

SUMMARY:

We are issuing a final rule requiring that we distribute the remaining 25 percent of fiscal year 2003 Indian Reservation Roads (IRR) funds to projects on or near Indian reservations using the relative need formula. 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.

EFFECTIVE DATE:

August 14, 2003 through September 30, 2003.

FOR FURTHER INFORMATION CONTACT:

Mr. 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) or 202-208-4696 (fax).

SUPPLEMENTARY INFORMATION:

Background

Where Can I Find General Background Information on the Indian Reservation Roads (IRR) Program, the Relative Need Formula, the Federal Highway Administration (FHWA) Price Trends Report, and the Transportation Equity Act for the 21st Century (TEA-21) Negotiated Rulemaking Process?

The background information on the IRR program, the relative need formula, the FHWA Price Trends Report, and the TEA-21 Negotiated Rulemaking process is detailed in the Federal Register notice dated February 15, 2000 (65 FR 7431).

Why Are You Publishing This Final Rule?

We are publishing this final rule only for the distribution of the remaining 25 percent of fiscal year 2003 IRR Program funds. This rule sets no precedent for the final rule to be published as required by section 1115 of TEA-21. On June 5, 2003, we published a temporary rule distributing 75 percent of fiscal year 2003 IRR funds (68 FR 33625).

Why Does This Final Rule Not Allow for Notice and Comment on the Final 25 Percent Distribution of Fiscal Year 2003 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 final rule for distribution of the remaining 25 percent of fiscal year 2003 IRR Program funds effective immediately under 5 U.S.C. 553(d)(3).

Notice and public procedure would be impracticable because of the urgent need to distribute the remaining 25 percent of fiscal year 2003 IRR Program funds. Approximately 1,300 road and bridge construction projects are at various phases that require additional funds this fiscal year to continue or complete work, including 220 deficient bridges and the construction of approximately 7,300 miles of roads. Fiscal year 2003 IRR Program funds will be used to design, plan, and construct improvements (and, in some cases, to reconstruct bridges). Without this immediate final distribution of fiscal year 2003 IRR Program funds, tribal and BIA IRR projects will be forced to cease activity, placing projects and jobs in jeopardy. Waiting for notice and comment on this final distribution of fiscal year 2003 IRR Program funds would be contrary to the public interest. In some of the BIA regions, approximately 80 percent of the roads in the IRR system (and the majority of the bridges) are designated school bus routes. Roads are essential access to schools, jobs, and medical services. Many of the priority tribal roads are also emergency evacuation routes and represent the only access to tribal lands. Approximately 40 percent of the road miles in Indian country are unimproved roads. Deficient bridges and roads are health and safety hazards. Partially constructed road and bridge projects and deficient bridges and roads jeopardize the health and safety of the traveling public. Further, over 600 projects currently in progress are directly associated with environmental protection and preservation of historic and cultural properties. This rule is going into effect immediately because of the urgent need for distributing the final funds available under the fiscal year 2003 IRR Program to continue these construction projects.

Where Can I Find Information on the Distribution of 75 Percent of Fiscal Year 2003 IRR Funds?

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

What Comments Did You Receive on the Temporary Rule for Distribution of 75 Percent of Fiscal Year 2003 IRR Program Funds?

In the 30-day comment period after publication of the temporary rule distributing 75 percent of fiscal year 2003 IRR Program funds, we received comments from 24 commenters. One commentor opposed the inclusion of administrative capacity building (ACB) funds in the remaining distribution of fiscal year 2003 IRR Program funds. Twenty-three commenters supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds for various reasons.

Comment: One commentor opposed the inclusion of ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds because IRR Program funds are construction funds for road and bridge projects; inclusion of ACB funds lessens the amount available for construction; and tribes have not expended all of IRR ACB funds distributed in fiscal years 2001 and 2002.

Response: This rule does not include ACB funds in fiscal year 2003. This rule sets no precedent for the final rule to be published as required by section 1115 of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 154.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds to assist tribes who are not current on their IRR inventories and to develop long-range transportation plans.

Response: Both inventory updates and long-range transportation planning activities are eligible activities within the available funding under the IRR authorized funds. The interim formula for fiscal year 2003 will 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 the Tribal Transportation Allocation Methodology in the final rule to be published as required by section 1115 of TEA-21.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds to level the playing field for small tribes. The commentor requested consideration of a special set-aside of at least 5 percent of IRR program funds for very small tribes.

Response: Funding for ACB in fiscal years 2001 and 2002 was included to provide the opportunities for tribes to apply for a specific amount of funds to perform transportation related activities. The Secretary distributed funds in those years according to the TEA-21 Negotiated Rulemaking Committee's recommendation. Each federally recognized tribe had the opportunity to apply for $35,000 for ACB for transportation related activities. A special set-aside of any amount of IRR program funds within this distribution would need to be negotiated within the amounts available to each region of the BIA.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds to assist smaller villages in updating their road inventories and allow villages to participate in the development of their economies.

Response: Updating inventories is an eligible activity within the available funding under the IRR authorized funds. The interim formula for the current fiscal year will 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 2004.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds and including ACB funds in future fiscal year distributions. The commentor also requested adequate consultation, annual disclosure of takedowns and national breakdown of each tribal government's allocation of IRR Program funds.

Response: Providing funds for ACB in fiscal years 2001 and 2002 as part of the distribution of funds was specific to those years based on available funds. ACB funds for those years were expressly not to be considered precedential in future distributions as stated in the funding rules published for fiscal years 2001 and 2002. Negotiated rulemaking under Title 5, U.S.C., allowed for the public and tribes to participate in the development of recommendation of a new formula for the IRR Program and recommendations for interim funding distribution. The Secretary publishes on an annual basis a breakdown of formula percentages as computed by the relative need formula. This breakdown includes the specific amounts of funds available to the BIA regions by tribe and the statutory takedowns for the IRR program.

Comment: Eleven commenters support including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds and do not support BIA's proposal to distribute the remaining 25 percent of fiscal year 2003 IRR Program funds. The commenters state that the Federal Register notice states that BIA will distribute fiscal year 2003 IRR Program funds in the same manner as in fiscal year 2000, but that BIA is not proposing including up to $50,000 per tribe for special planning funds as it did in fiscal year 2000. The commenters also disagree with the Federal Register notice statement that BIA conducted consultation and coordination with tribal governments for distribution of fiscal year 2003 IRR Program funds because negotiated rulemaking is not consultation. In addition, one commentor also noted that the funding formula is deficient and does not allow for different modes of transportation which decreases the available funding.

Response: The fiscal year 2003 distribution, as well as the distribution for fiscal years 2001 and 2002, is consistent with the method of distribution of IRR Program funds in the Federal Register on February 15, 2000. In fiscal year 2000, the Secretary distributed IRR Program funds under the relative need formula identified in 23 U.S.C. 204 (65 FR 7431, Feb. 15, 2000) and special funds provided as part of a request for projects and distributed to tribal governments and BIA regional offices for transportation planning and bridge designs (65 FR 12026, March 7, 2000). Funding for the $18.3 million fiscal year 2000 IRR funds was a separate Federal Register publication and not part of the regular IRR Program funds distribution. Negotiated rulemaking under Title 5, U.S.C., provides consultation allowed for the public and tribes to participate in the development of recommendation of a new formula for the IRR Program and recommendations for interim funding distribution. However, for fiscal year 2003, the tribal caucus of the negotiated rulemaking committee was unable to make a consensus recommendation to the full Committee for distributing fiscal year 2003 IRR Program funds. However, the tribal caucus recommended that the Secretary identify fiscal year sources other than IRR Program funds to include ACB funds in the distribution for fiscal year 2003. Without a tribal caucus consensus on how to distribute fiscal year 2003 IRR Program funds, the Committee, under its protocols, could not make a recommendation to the Secretary as to how to distribute fiscal year 2003 IRR Program funds. Without a recommendation from the Committee, the Secretary must determine how to distribute fiscal year 2003 IRR Program funds. The Secretary could not identify another funding source for ACB.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds. The commentor also stated that the relative need formula the 1993 version is no longer valid because BIA's distribution of IRR program funds in fiscal years 2000, 2001, 2002, superceded any previous formula. The commentor also disagreed that BIA is using the same distribution method in fiscal year 2003 as it used in fiscal year 2000, 2001 and 2002, since BIA is not including ACB in the fiscal year 2003 distribution of IRR Program funds.

Response: The relative need formula as used in fiscal years 2000, 2001, and 2002 distribution of IRR Program funds could only be used by rule because of statutory provisions in Title 23, U.S.C. Therefore in each of these years the Secretary published a temporary rule applicable only to the current year. The inclusion of ACB in fiscal years 2001 and 2002 is a direct result of the recommendation of the TEA-21 Negotiated Rulemaking Committee.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds because ACB is an essential source of funding. The commentor also requested the continuation of $35,000 per year per tribe for ACB, or a minimum allocation of $48,000 per year per tribe to maintain a transportation department compliant with current BIA requirements.

Response: The tribal caucus could not agree on the ACB and could not make a recommendation to the full committee, and could not agree on the ACB and therefore it was not included in the fiscal year 2003 distribution of IRR Program funds.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds. In addition, the commentor requests that BIA identify other sources of funds for ACB.

Response: BIA could not identify any new sources of funds to support the continued implementation of ACB.

Comment: Four commenters supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds because under the new distribution formula, that will be effective in fiscal year 2004, inventory updates are necessary and ACB will be required for the updates. In addition, the commenters state that BIA cannot distribute fiscal year 2003 funds without ACB and without further action of the TEA-21 Negotiated Rulemaking Committee. The commenters also state that under TEA-21, after 1999, BIA's authority to distribute IRR Program funds ended. The commenters further indicate that BIA should identify alternate sources of funding for ACB.

Response: The interim formula for the current fiscal year will 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 2004. The Committee could not make a recommendation to the Secretary because no consensus was reached regarding the use of ACB. There are no additional sources of funding available to the Secretary for ACB. In addition, the proposed and final rule the TEA-21 Negotiated Rulemaking Committee developed has no provision for ACB.

Comment: One commentor supported including ACB funds in the remaining distribution of fiscal year 2003 IRR Program funds because BIA is not authorized to distribute the remaining 25 percent without including ACB funds without a recommendation from the Committee. In addition, the commentor asserts that BIA should have included reference to the special funds for planning and bridge design distributed in fiscal year 2000. The commentor also disagrees with the Federal Register notice statement that BIA conducted consultation and coordination with tribal governments for distribution of fiscal year 2003 IRR Program funds. The commentor asserts that because only the tribal caucus of the Negotiated Rulemaking Committee discussed the fiscal year 2003 distribution of IRR Program funds and the tribal co-chairs were not authorized to separately agree to any distribution method in fiscal year 2003, the Secretary did not consult with tribal governments. The commentor also noted that if ACB funds are included in the distribution, there would be no object to a reduction to ACB proportionate to the reduction in IRR Program funds, or, alternatively, to return the remaining funds to FHWA for distribution in fiscal year 2004 under the new Tribal Transportation Allocation Methodology that will be part of the final rule for Indian Reservation Roads.

Response: In fiscal year 2000, the Secretary distributed IRR Program funds as part of the relative need formula as identified in 23 U.S.C. 202 (65 FR 7431, Feb. 15, 2000) and special funds provided as part of a request for projects and distributed to tribal governments and BIA regional offices for transportation planning and bridge designs (65 FR 12026, March 7, 2000). This fiscal year 2003 distribution, as well as the distribution for fiscal years 2001 and 2002, is consistent with the distribution of IRR Program funds as published in the Federal Register on February 15, 2000. Funding for the $18.3 million Fiscal Year 2000 Indian Reservation Roads Funds was a separate Federal Register publication and not part of the regular IRR Program funds distribution. The Federal Register published on March 7, 2000 states: What Are the Additional Fiscal year 2000 IRR Funds? These additional IRR Program funds are provided as part of the Department of Transportation and Related Agencies Appropriations Act for fiscal year 2000, Public Law 106-69. These funds are not part of other funding as authorized in 23 U.S.C. 202 or as distributed under 25 CFR 170.4b (65 FR 7431, Feb. 15, 2000).

The tribal caucus of the negotiated rulemaking committee was unable to make a consensus recommendation to the full Committee on distributing fiscal year 2003 IRR Program funds. However, the tribal caucus recommended that the Secretary identify sources other than IRR Program funds to include ACB funds in the distribution for fiscal year 2003. Without a tribal caucus consensus on how to distribute fiscal year 2003 IRR Program funds, the Committee, under its protocols, could not make a recommendation to the Secretary as to how to distribute fiscal year 2003 IRR Program funds. Without a recommendation from the Committee, the Secretary must determine how to distribute fiscal year 2003 IRR Program funds. The Secretary could not identify another funding source for ACB.

How Will the Secretary Distribute the Remaining 25 Percent of Fiscal Year 2003 IRR Program Funds?

Upon publication of this rule, the Secretary will distribute the remaining 25 percent (approximately $50 million) of fiscal year 2003 IRR Program funds based on the current relative need formula used in fiscal years 2000, 2001, 2002 and in the first distribution in fiscal year 2003. We are using the latest indices from the FHWA Price Trends Report with appropriate modifications for non-reporting states in the relative need formula distribution process.

Regulatory Planning and Review (Executive Order 12866)

Under the criteria in Executive Order 12866, this rule is not an economically significant regulatory action because it will not have an annual effect of more than $100 million on the economy. The total amount available for distribution of fiscal year 2003 IRR Program funds is approximately $208 million and we are distributing approximately $50 million under this 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 2003 IRR Program funds does not require tribal governments and tribal organizations to expend any of their own funds. This rule is consistent with the policies and practices that currently guide our distribution of IRR Program funds. This rule continues to adopt the relative need formula that we have used since 1993, adjusting the FHWA Price Trends Report indices for states that do not have current data reports. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another Federal agency. The FHWA has transferred the IRR Program funds to us and fully expects the BIA to distribute the funds according to a funding formula approved by the Secretary. This rule does not alter the budgetary effects on any tribes from any previous or any future distribution of IRR Program funds and does not alter entitlement, grants, user fees, or loan programs or the rights or obligations of their recipients. This rule does not raise novel legal or policy issues. It is based on the relative need formula in use since 1993. We are changing determination of relative need only by appropriately modifying the FHWA Price Trend Report indices for states that did not report data for the FHWA Price Trends Report, just as we did for the second partial distribution of fiscal years 2000, 2001 and 2002 IRR Program funds and the first partial distribution of fiscal year 2003 IRR funds. Approximately 1,300 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 rule because it applies only to tribal governments, not state and local governments.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act, because it does not have an annual effect on the economy of $100 million or more. We are distributing approximately $50 million under this 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, 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 rule will not significantly or uniquely affect small governments, or the private sector. A Small Government Agency Plan is not required. This rule will not produce a federal mandate that may result in an expenditure by State, local, or tribal governments of $100 million or greater in any year. The effect of this rule is to immediately provide the remaining 25 percent of fiscal year 2003 IRR Program funds to tribal governments for ongoing IRR activities and construction projects.

Takings Implications (Executive Order 12630)

With respect to Executive Order 12630, the rule does not have significant takings implications since it involves no transfer of title to any property. A takings implication assessment is not required.

Federalism (Executive Order 13132)

With respect to Executive Order 13132, the rule does not have significant Federalism implications to warrant the preparation of a Federalism Assessment. This rule should not affect the relationship between state governments and the Federal Government because this rule concerns administration of a fund dedicated to IRR projects on or near Indian reservations that has no effect on Federal funding of state roads. Therefore, the rule has no Federalism effects within the meaning of Executive Order 13132.

Civil Justice Reform (Executive Order 12988)

This rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988. This rule contains no drafting errors or ambiguity and is clearly written to minimize litigation, provide clear standards, simplify procedures, and reduce burden. This rule does not preempt any statute. 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 the remaining 25 percent of fiscal year 2003 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.

Consultation and Coordination With Indian Tribal Governments (Executive Order 13175)

Under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments of November 6, 2000 (65 FR 218), we have consulted with tribal representatives throughout the negotiated rulemaking process. Distributing IRR Program funds under this rule has tribal implications in that transportation planning and projects rely on this funding. Distributing funds under this rule does not impose direct compliance costs on Indian tribal governments and does not preempt tribal law. We have evaluated any potential effects on federally recognized Indian tribes and have determined that there are no potential adverse effects. We have determined that this rule preserves the integrity and consistency of the relative need formula process we have used since 1993 to distribute IRR Program funds.

The TEA-21 Negotiated Rulemaking Committee tribal representatives agreed that we use the funding method for distributing IRR Program funds we have used since 1993, for fiscal years 2000, 2001, and 2002. However, the tribal representatives disagreed about reserving IRR Program funds (approximately $20 million from the remaining $50 million) to distribute $35,000 to each federally recognized tribe for ACB for fiscal year 2003 because it could not identify a source for ACB funds. We reserved ACB funds in fiscal years 2001 and 2002 and distributed $35,000 to each federally recognized tribe in each year. For fiscal year 2003, however, since there is no consensus to provide ACB funds, the method of formula distribution of all available funds will reflect the same distribution as in fiscal years 2000, 2001, and 2002 without reserving funds for ACB.

List of Subjects in 25 CFR Part 170

• Highways and Roads
• Indians-lands

For the reasons set out in the preamble, we are amending Part 170 in Chapter I of Title 25 of the Code of Federal Regulations as follows.

PART 170—ROADS OF THE BUREAU OF INDIAN AFFAIRS

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. Revise § 170.4b to read as follows:

§ 170.4b

What formula will BIA use to distribute the remaining 25 percent of fiscal year 2003 Indian Reservation Roads Program funds?

On August 14, 2003 we will distribute the remaining 25 percent of fiscal year 2003 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.

Dated: July 31, 2003.

Aurene M. Martin,

Acting Assistant Secretary—Indian Affairs.