Tribal Transportation Program; Inventory of Proposed Roads |
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Tara Sweeney
Department of the Interior
30 March 2020
[Federal Register Volume 85, Number 61 (Monday, March 30, 2020)]
[Rules and Regulations]
[Pages 17497-17499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06061]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 170
[201A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1076-AF45
Tribal Transportation Program; Inventory of Proposed Roads
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Indian Affairs (BIA) is finalizing a change to a
provision in the Tribal Transportation Program regulations affecting
proposed roads that are currently in the National Tribal Transportation
Facility Inventory (NTTFI). Specifically, this final rule deletes the
requirement for Tribes to collect and submit certain data in order to
keep those proposed roads in the NTTFI. The requirement to collect and
submit data to add new proposed roads to the NTTFI remains in place.
DATES: This rule is effective on April 29, 2020.
FOR FURTHER INFORMATION CONTACT: Mr. LeRoy Gishi, Division of
Transportation, Office of Indian Services, Bureau of Indian Affairs,
(202) 513-7711, leroy.gishi@bia.gov.
SUPPLEMENTARY INFORMATION: Regulations governing the Tribal
Transportation Program were published in 2016. See 81 FR 78456
(November 7, 2016). The regulations became effective on December 7,
2016, except for Sec. 170.443, which required Tribes' compliance one
year later: On November 7, 2017. Section 170.443 required Tribes to
collect data for proposed roads to be added to, or remain in, the
NTTFI. BIA then further delayed the November 7, 2017, deadline for
compliance with Sec. 170.443 to November 7, 2019. See 82 FR 50312
(October 31, 2017), 83 FR 8609 (February 28, 2018). The purpose of the
delay was to provide BIA with time to reexamine whether revision or
deletion of the data collection requirements in Sec. 170.443 would be
appropriate. BIA staff then engaged in outreach at several regional and
national meetings with affected Tribes and, on July 26, 2019, issued a
proposal to apply the data collection requirements going forward to any
new proposed road submission, but not to proposed roads that were
already in the NTTFI as of the date of publication of the regulations
on November 7, 2016, unless any changes or updates were or are made
after that date. See 84 FR 36040. BIA then hosted three Tribal
consultation sessions: September 5, 2019, in Minneapolis; September 10,
2019, in Anchorage, Alaska; and September 12, 2019, in Denver,
Colorado.
I. Comments and Responses on the Proposed Rule
BIA received 14 written comment submissions on the proposed rule.
Approximately half supported the rule and half opposed. One
participants in the Denver consultation opposed the proposed rule,
while some participants at the remaining consultations expressed
support and others expressed opposition to the rule.
A. Comments in Support of the Proposed Rule
Several commenters, including Alaska Native Tribes and Tribal
entities, were supported the rule. Among the reasons stated for support
of the rule were:
The rule will reduce Tribal expenses by not requiring the
submission of data to maintain roads on the inventory.
The rule is fairer, by removing the burden for those
affected to go back and enter data for proposed roads that were added
to the inventory when such requirements were not present.
The rule eliminates a provision that was incompatible with
the statutory requirement for the Secretary to maintain a national
inventory that is comprehensive.
The proposed roads must remain on the inventory, by law,
because the statutory requirements for inclusion on the inventory have
not changed since 2005.
Removing the proposed roads from the inventory would waste
the extensive
[[Page 17498]]
investments that Tribes have already made in transportation planning
and public engagement regarding these roads.
Removal of proposed roads from the inventory would
undermine the effort and expense in carrying out the FHWA-approved
transportation planning processes, and have immediate effects in that
certain Alaska Native Tribes could no longer work on critical access
routes, or carry out route-staking that improves approximately 1,100
miles of winter trails to prevent injury and death for traveling
between villages.
Tribes do not have the resources to supplement existing
data for all their proposed roads at once to maintain them on the
inventory.
B. Comments Opposed to the Proposed Rule
Representatives of several large, land-based Tribes and one Alaska
Native corporation strongly opposed the proposed rule. The primary
basis for opposing the rule was a concern that many of the proposed
roads on the NTTFI that were submitted without data are essentially
``ghost roads'' that will never be built because they are not
financially feasible or cannot legally be built (e.g., a proposed road
crossing miles of ocean or within a National Wildlife Refuge) and were
added for the sole purpose of increasing Tribal funding shares. These
representatives stated that, by allowing these ``ghost roads'' to
remain on the inventory, the rule would:
Divert funding from existing roads in the NTTFI that are
in need of repair and other proposed roads in the NTTFI that will
actually be built.
Exacerbate the current situation where the majority of
funding is going to support non-reservation roads (State, county, and
city roads comprise approximately 65% to 70% of the roads in the NTTFI)
while there is a serious backlog of deferred maintenance at existing
reservation roads.
Continue to impose a discriminatory two-tier class system
on Tribes in Alaska, where approximately 20% of Alaska Tribes,
clustered in three Alaska Native regions, receive approximately 80% of
the TTP funding made available in Alaska.
Perpetuate the current disproportionate funding
distribution, which according to a commenter, Congress has frozen until
NTTFI data is ``fixed.''
Conflict with statutory requirements at 23 U.S.C. 134 and
135 that the proposed projects must be fiscally constrained because
there would be no funding to build the majority of proposed roads that
are currently in the NTTFI within a reasonable period.
Reward those who disregarded Federal standards and BIA
guidance regarding what data should be provided while punishing those
that operated within the constraints for 20- and 30-year long-range
planning requirements.
C. Other Comments
One comment supported the rule overall but objected to enforcing
the requirement for additional data when changes or updates to the
inventoried roads occur, because updates should not trigger data
collection in order to keep the road on the inventory.
D. Response to Comments
BIA has determined, after consideration of all the input received
during this rulemaking process, that removal of the requirement for
data collection, as proposed, would be the most fair and de-regulatory
course of action. Because the funding formula is prescribed by statute,
and as established in 23 U.S.C. 202(b) uses data from the 2004 and 2012
inventory, there are currently no funding implications to maintaining
these roads on the inventory. It is possible that Congress will change
the formula or establish an entirely new formula at some point. To
remove the proposed roads from the NTTFI in the meantime would unfairly
disadvantage those who added proposed roads to the inventory under the
data collection requirements at the time. BIA also determined that it
is appropriate to continue to require the data to change or update
inventoried proposed roads because the changes or updates will meet the
intent of the original provision in the regulation in managing data
increases in the inventory. The Department declines to speculate on
whether or how Congress will change the formula and at what date--
historical or future--Congress will choose for an inventory snapshot
for use in the formula.
II. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public
where these approaches are relevant, feasible, and consistent with
regulatory objectives. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this rule in a manner consistent with these
requirements.
B. E.O. 13771: Reducing Regulation and Controlling Regulatory Costs
This action is not an E.O. 13771 regulatory action because this
rule is not significant under Executive Order 12866.
C. Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
It does not change current funding requirements and would not impose
any economic effects on small governmental entities.
D. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
(a) Will not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of the
U.S.-based enterprises to compete with foreign-based enterprises.
E. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
[[Page 17499]]
F. Takings (E.O. 12630)
This rule does not effect a taking of private property or otherwise
have taking implications under E.O. 12630. A takings implication
assessment is not required.
G. Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. A federalism summary impact
statement is not required.
H. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule: (a) Meets the criteria of section 3(a)
requiring that all regulations be reviewed to eliminate errors and
ambiguity and be written to minimize litigation; and (b) meets the
criteria of section 3(b)(2) requiring that all regulations be written
in clear language and contain clear legal standards.
I. Consultation With Indian Tribes (E.O. 13175)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty. We have evaluated this
rule under the Department's consultation policy and under the criteria
in E.O. 13175 and have consulted with Tribes, as described above.
J. Paperwork Reduction Act
OMB Control No. 1076-0161 currently authorizes the collections of
information contained in 25 CFR part 170, with an expiration of March
31, 2020. The current authorization totaling an estimated 23,448 annual
burden hours. This rule will decrease the annual burden hours by an
estimated 2,520 hours. This decrease is due to the elimination of the
requirement for Tribes to provide information on proposed roads that
are already included on the inventory. This change would require a
revision to an approved information collection under the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et seq. for which the Department is
requesting OMB approval.
OMB Control Number: 1076-0161.
Title: Tribal Transportation Program, 25 CFR 170.
Brief Description of Collection: The information submitted by
Tribes allows them to participate in planning the development of
transportation needs in their area; the information provides data for
administration, documenting plans, and for oversight of the program by
the Department. Some of the information such as the providing inventory
updates (25 CFR 170.444), the development of a long-range
transportation plan (25 CFR 170.411 and 170. 412), the development of a
Tribal transportation improvement program (25 CFR 170.421), and annual
report (25 CFR 170.420) are mandatory to determine how funds will
allocated to implement the Tribal Transportation Program. Some of the
information, such as public hearing requirements, is necessary for
public notification and involvement (25 CFR 170.437 and 170.438), while
other information, such as a request for exception from design
standards (25 CFR 170.456), is voluntary. The revision accounts for
updates made to Sec. 170.443, removing the requirement to provide
information for proposed roads that existed in the inventory as of
November 7, 2016. Comments on the removal of the requirement are
addressed in the preamble, above.
Type of Review: Revision of a currently approved collection.
Respondents: Federally recognized Indian Tribes.
Number of Respondents: 281 on average (each year).
Number of Responses: 1,504 on average (each year).
Frequency of Response: On occasion.
Estimated Time per Response: Varies from 0.5 hours to 40 hours.
Estimated Total Annual Hour Burden: 20,928 hours.
The recordkeeping requirements contained in section 170.472 are
authorized under OMB Control No. 1076-0136, applicable to self-
determination and self-governance contracts and compacts under 25 CFR
900 and 1000.
Please note that an agency may not sponsor or request, and an
individual need not respond to, a collection of information unless it
displays a valid OMB Control Number.
K. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because this is an administrative and procedural regulation.
(For further information see 43 CFR 46.210(i)). We have also determined
that the rule does not involve any of the extraordinary circumstances
listed in 43 CFR 46.215 that would require further analysis under NEPA.
L. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O. 13211. A Statement of Energy Effects is not required.
M. Determination To Issue an Final Rule With Immediate Effective Date
We are publishing this final rule with an immediate effective date,
as allowed under 5 U.S.C. 553(d)(3). Good cause for an immediate
effective date exists because the delay in publishing this rule would
cause confusion, as the current regulation being replaced would
otherwise go into effect on March 6, 2020.
List of Subjects in 25 CFR Part 170
Highways and roads, Indians-lands.
For the reasons stated in the preamble, the Department of the
Interior, Bureau of Indian Affairs, amends 25 CFR part 170 as follows:
PART 170--TRIBAL TRANSPORATION PROGRAM
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1. The authority citation for part 170 continues to read as follows:
Authority: Pub. L. 112-141, Pub. L. 114-94; 5 U.S.C. 2; 23
U.S.C. 201, 202; 25 U.S.C. 2, 9. Authority: Pub. L. 112-141, Pub. L.
114-94; 5 U.S.C. 2; 23 U.S.C. 201, 202; 25 U.S.C. 2, 9.
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2. In Sec. 170.443, revise paragraph (b) to read as follows:
Sec. 170.443 What is required to successfully include a proposed
transportation facility in the NTTFI?
* * * * *
(b) For those proposed roads that were included in the NTTFI as of
November 7, 2016, the information in paragraphs (a)(1) through (8) of
this section may be submitted for approval to BIA and FHWA at any time,
but is not required in order for those proposed roads to remain in the
NTTFI, unless any changes or updates to the proposed road were (or are)
made after that date.
Dated: February 24, 2020.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2020-06061 Filed 3-27-20; 8:45 am]
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