[Federal Register: May 19, 2004 (Volume 69, Number 97)]
[Rules and Regulations]
[Page 28821-28823]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19my04-3]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 170
RIN 1076-AE50
Distribution of Fiscal Year 2004 Indian Reservation Roads Funds
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: We are issuing a rule requiring that we immediately distribute
$90 million of fiscal year 2004 Indian Reservation Roads (IRR) funds to
projects on or near Indian reservations using the relative need
formula. This partial distribution reflects the funds the Federal
Highway Administration has allocated to the Department of the Interior
and is based on funding appropriated by the Surface Transportation
Extension Act of 2003 in effect until April 30, 2004. 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. This distribution will
allow an immediate allocation of funds based on an existing formula,
final allocations will be dependent on a final authorization of highway
trust funds and a fiscal year 2004 appropriations.
DATES: Effective Date: May 19, 2004. Section 170.4b expires September
30, 2004.
FOR FURTHER INFORMATION CONTACT: LeRoy Gishi, Chief, Division of
Transportation, Tribal Services, Bureau of Indian Affairs, 1951
Constitution Avenue, NW., MS-20-SIB, Washington, DC 20240. Mr. Gishi
may also be reached at (202) 513-7714 (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 Rule?
We are publishing this rule to distribute $90 million of fiscal
year 2004 IRR Program funds. This rule sets no precedent for the final
rule to be published as required by section 1115 of TEA-21.
Why Does This Final Rule Not Allow for Notice and Comment on the
Partial Distribution of Fiscal Year 2004 IRR Program Funds, and Why Is
It Effective Immediately?
Under 5 U.S.C. 553(b)(3)(B), notice and public procedure on this
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 available fiscal year
2004 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 available fiscal year 2004 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 2004
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 2004 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 2004 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 2004 IRR
Program to continue these construction projects.
Where Can I Find Information on the Distribution of Fiscal Year 2003
IRR Program Funds?
You can find this information in the Federal Register notice dated
June 5, 2003 (68 FR 33625).
How Will the Secretary Distribute $90 Million of Fiscal Year 2004 IRR
Program Funds?
Upon publication of this rule, the Secretary will distribute only
$90 million of fiscal year 2004 IRR program funds based on the current
relative need formula used in fiscal years 2000, 2001, 2002 and 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 a
significant regulatory action because it will not have an annual effect
of more than $100
[[Page 28822]]
million on the economy. The total amount currently available for
distribution of fiscal year 2004 IRR program funds is approximately
$135 million and we are distributing only $90 million under this rule.
Congress has authorized these funds and FHWA has already allocated them
to the Bureau of Indian Affairs (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 2004 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 partial distributions for fiscal
years 2000, 2001, 2002 and 2003 IRR Program funds. Approximately 350
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.
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 only $90 million under this rule. Congress has authorized
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 projects 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 $90 million or
greater in any year. The effect of this rule is to provide $90 million
of fiscal year 2004 IRR Program funds 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.
Under the Transportation Equity Act for the 21st Century negotiated
rulemaking, we have published a proposed rule and funding formula which
is currently being finalized. A final funding formula for fiscal year
2004 will be published in 2004. 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 $90 million
of fiscal year 2004 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
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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)
Pursuant to Executive Order 13175 of November 6, 2000,
``Consultation and Coordination with Indian Tribal Governments,'' we
have consulted with tribal representatives throughout the negotiated
rulemaking process. We have evaluated any potential effects on
federally recognized Indian tribes and have determined that there are
no potential adverse effects and 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. We are
making a change from previous years (which we also made for fiscal
years 2000, 2001, 2002 and 2003 IRR Program funds (see Federal Register
notices at 65 FR 37697, 66 FR 17073, 67 FR 44355 and 68 FR 33625)) 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.
List of Subjects in 25 CFR Part 170
Highways and roads, Indians--lands.
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In order to distribute part of fiscal year 2004 IRR Program funds
immediately 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
0
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.
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2. Revise Sec. 170.4b to read as follows:
Sec. 170.4b What formula will BIA use to distribute $90 million of
fiscal year 2004 Indian Reservation Roads Program funds?
On May 19, 2004, we will distribute $90 million of fiscal year 2004
IRR Program funds authorized under the Surface Transportation Extension
Act of 2003, Public Law 108-88, 117 Stat. 1110. 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.
David W. Anderson,
Assistant Secretary--Indian Affairs.
[FR Doc. 04-11280 Filed 5-18-04; 8:45 am]