Ss 170_02-25-2020

Supporting Statement A

Tribal Transportation Program, 25 CFR 170

OMB Control Number 1076-0161

Revision

Terms of Clearance: None.

General Instructions

A completed Supporting Statement A must accompany each request for approval of a collection of information. The Supporting Statement must be prepared in the format described below, and must contain the information specified below. If an item is not applicable, provide a brief explanation. When the question “Does this ICR contain surveys, censuses, or employ statistical methods?” is checked "Yes," then a Supporting Statement B must be completed. OMB reserves the right to require the submission of additional information with respect to any request for approval.

Specific Instructions

Justification

1. Explain the circumstances that make the collection of information necessary. Identify any legal or administrative requirements that necessitate the collection.

This is a request for revision of an information collection requirement associated with a rulemaking that will reduce burden. Specifically, the rule changes one provision in the Tribal Transportation Program (TTP) regulations affecting proposed roads that are currently in the National Tribal Transportation Facility Inventory (NTTFI). The 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 would remain in place.

The TTP (formerly, Indian Reservation Roads Program) regulations are at 25 CFR 170. Part 170 implements 23 U.S.C. 202(d), the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which has been amended by Moving Ahead for Progress in the 21^st Century Act (MAP-21). Part 170 was last updated in 2016 to incorporate changes resulting from the MAP-21 statute and to reflect that the program will now be known as the “Tribal Transportation Program” rather than the “Indian Reservation Roads Program.” The regulatory revisions affected a few information collections, which were necessary to implement the requirements of the law for allocating funding from the highway trust fund to Indian Tribal governments.

2. Indicate how, by whom, and for what purpose the information is to be used. Except for a new collection, indicate the actual use the agency has made of the information received from the current collection. Be specific. If this collection is a form or a questionnaire, every question needs to be justified.

The Department developed 25 CFR 170, including the information collection requirements contained therein, through consultation with federally recognized Tribes. Tribal governments are the respondents to the information collections in part 170. The Department of the Interior, Bureau of Indian Affairs (BIA) uses the information provided through information collection requirements to determine how funds appropriated by Congress under the statutes will be allocated to various Tribal governments for implementing the TTP. BIA also uses the information to assist Tribal governments in meeting reporting requirements for their participation in the TTP program. One information collection requirement is contained in Subpart C.

Subpart C – Tribal Transportation Program Funding includes an information collection requirement that results from a statute Congress passed after the proposed rule was published. The information collection requirement is located at:

• 170.240 requires any entity carrying out a TTP project to submit certain data to the Secretaries of Interior and Transportation using an electronic database provided by the agencies.

The remaining information collections are located in Subpart D – Planning, Design, and Construction of Tribal Transportation Program Facilities. Subpart D provisions explain the requirements for planning, designing and constructing Tribal transportation roads. This includes discussion of transportation planning, the requirements for public hearings, the National Tribal Transportation Facility Inventory (NTTFI), environmental and archaeology elements of the TTP program, design elements, construction and construction monitoring of rights-of-way, and program reviews and management systems. The information collections are located at:

• 170.411 lists items that a Tribe may include in a long-range transportation plan.

• 170.412 establishes that the Tribe must undergo a certain process in development and review of the long-range transportation plan.

• 170.420 establishes that the Tribe must provide the Tribal priority list to BIA.

• 170.421 establishes that the Tribe must report to BIA on its Tribal transportation improvement program.

• 170.437 and 170.438 establishes that the Tribe or BIA must give notice to the public of an TTP project and hearing.

• 170.439 establishes that the Tribe must compile and maintain a record of hearing.

• 170.443 establishes that the Tribe must provide and review certain information in support of a project’s inclusion on the NTTFI.

• 170.456 establishes that a Tribe must provide certain information in support of a request for exception from design standards.

The only revision to the information collections resulting from these most recent regulatory revisions are to remove the requirement in § 170.443 for Tribes to provide certain information in support of their proposed roads’ inclusion on the NTTFI, if the proposed road was already included in the NTTFI as of November 7, 2016 (the date the TTP regulations were finalized). This information is set out in § 170.443(a)(1) through (a)(8):

(1) A Tribal resolution or other official action identifying support for the facility and its placement on the NTTFI.

(2) A copy of the Tribe's LRTP containing:

(i) A description of the current land use and identification of land ownership within the proposed road's corridor (including what public easements may be required);

(ii) A description of need and outcomes for the facility including a description of the project's termini; and

(iii) The sources of funding to be used for construction.

(3) If the landowner is a public authority other than the Tribe or BIA, documentation from the public authority that the proposed road has been identified in their LRTP, STIP approved by FHWA, or other published transportation planning documents.

(4) Documentation clearly identifying that easements or rights-of-way have been acquired or a clear written statement of willingness to provide a right-of-way from each landowner along the route.

(5) Certification that a public involvement process has been carried out for the proposed road.

(6) A synopsis discussing the project's anticipated environmental impacts as well as the engineering and construction challenges.

(7) Documentation that the project can meet financial or fiscal constraint requirements including financial information demonstrating that the project can be implemented using existing or reasonably available funding sources, and that the project route can be adequately maintained after construction. (See 23 U.S.C. 134 and 135.)

(8) Documentation identifying the entity responsible for maintenance of the facility after construction is completed.

3. Describe whether, and to what extent, the collection of information involves the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses, and the basis for the decision for adopting this means of collection. Also describe any consideration of using information technology to reduce burden and specifically how this collection meets GPEA requirements.

BIA has instituted an automated process for updating the inventory, referred to as the Road Inventory Field Data System (RIFDS). Approximately 70% of Tribes are currently using RIFDS. The remaining 30% of Tribes update their inventory on hard copy and manually give it to the appropriate local BIA agency as appropriate to meet the requirements. Even where Tribes submit data manually, the agency has the ability to encode it electronically. There are no barriers for the use of electronic technology to collect the information and reduce the burden of this collection. As more Tribal representatives get the necessary security clearances, BIA expects the use of RIFDS to approach 100%.

BIA is also working with the Department of Transportation to provide an electronic portal to assist Tribes in submitting the data needed to fulfill the requirements of 23 U.S.C. 201(c)(6)(C) (repeated in § 170.240).

4. Describe efforts to identify duplication. Show specifically why any similar information already available cannot be used or modified for use for the purposes described in Item 2 above.

This information is in response to the revision to 25 CFR 170 and is not duplicated in any other data collection. This information is unique to the Tribal Transportation Program and no similar information is found in any other collection. In keeping with the Paperwork Reduction Act and other statutory requirements, the information collected is the minimum needed for the intended purpose.

5. If the collection of information impacts small businesses or other small entities, describe any methods used to minimize burden.

Tribes and Tribal organizations are not considered small entities under the Small Business Regulatory Enforcement Fairness Act (SBREFA). The BIA consulted with the Tribes and through various Tribal-member non-governmental organizations to determine what information collection was necessary to ensure the fair and equitable administration of the TTP. Through this consultation, the information collection burden has been minimized.

6. Describe the consequence to Federal program or policy activities if the collection is not conducted or is conducted less frequently, as well as any technical or legal obstacles to reducing burden.

The information collection burden cannot be reduced any further without the integrity of the TTP being compromised. Information is collected, as needed, when federally recognized Tribes want to participate in the TTP. If the collection is not conducted, or is conducted less frequently, the BIA will not be able to properly administer the program and the government’s responsibility for the allocation of funds to these Tribes will be further compromised.

7. Explain any special circumstances that would cause an information collection to be conducted in a manner:

* requiring respondents to report information to the agency more often than quarterly;

* requiring respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it;

* requiring respondents to submit more than an original and two copies of any document;

* requiring respondents to retain records, other than health, medical, government contract, grant-in-aid, or tax records, for more than three years;

* in connection with a statistical survey that is not designed to produce valid and reliable results that can be generalized to the universe of study;

* requiring the use of a statistical data classification that has not been reviewed and approved by OMB;

* that includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or

* requiring respondents to submit proprietary trade secrets, or other confidential information, unless the agency can demonstrate that it has instituted procedures to protect the information's confidentiality to the extent permitted by law.

There are no special circumstances that require exceptions to 5 CFR 1320.5(d)(2) in this regulation. The data are updated once a year, at a minimum, and can be updated on a continuous basis; the information is not confidential; and copies of required information are adequate for use in the collection.

8. If applicable, provide a copy and identify the date and page number of publication in the Federal Register of the agency's notice, required by 5 CFR 1320.8(d), soliciting comments on the information collection prior to submission to OMB. Summarize public comments received in response to that notice and in response to the PRA statement associated with the collection over the past three years, and describe actions taken by the agency in response to these comments. Specifically address comments received on cost and hour burden.

The Department solicited input in the proposed rule to remove the requirement in § 170.443 to provide information for proposed roads that existed in the inventory as of November 7, 2016. The Department received 14 written comment submissions on the proposed rule, which it addresses in the preamble to the final rule. The comment and response section of the preamble is restated here:

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 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.

Describe efforts to consult with persons outside the agency to obtain their views on the availability of data, frequency of collection, the clarity of instructions and recordkeeping, disclosure, or reporting format (if any), and on the data elements to be recorded, disclosed, or reported.

BIA has engaged in outreach at several regional and national meetings with affected Tribes. Based on upon discussions at these meetings, BIA has determined it is appropriate to apply the data collection requirements going forward only, to any new proposed road submissions, but not to proposed roads that were already in the NTTFI as of the date of publication of the 2016 regulations because Tribes had added proposed roads to the NTTFI under the rules that were in effect at that time, which did not require the significant data collection.

9. Explain any decision to provide any payment or gift to respondents, other than remuneration of contractors or grantees.

Respondents will not receive any payment, gift, or other remuneration for providing the information collection requirements.

10. Describe any assurance of confidentiality provided to respondents and the basis for the assurance in statute, regulation, or agency policy.

There is no assurance of confidentiality provided to respondents concerning this information collection. None is needed because the information collected concerns the infrastructure conditions on the reservations rather than personal information.

11. Provide additional justification for any questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private. This justification should include the reasons why the agency considers the questions necessary, the specific uses to be made of the information, the explanation to be given to persons from whom the information is requested, and any steps to be taken to obtain their consent.

There are no questions of a sensitive nature solicited in this information collection.

12. Provide estimates of the hour burden of the collection of information. The statement should:

* Indicate the number of respondents, frequency of response, annual hour burden, and an explanation of how the burden was estimated. Unless directed to do so, agencies should not conduct special surveys to obtain information on which to base hour burden estimates. Consultation with a sample (fewer than 10) of potential respondents is desirable. If the hour burden on respondents is expected to vary widely because of differences in activity, size, or complexity, show the range of estimated hour burden, and explain the reasons for the variance. Generally, estimates should not include burden hours for customary and usual business practices.

* If this request for approval covers more than one form, provide separate hour burden estimates for each form and aggregate the hour burdens.

* Provide estimates of annualized cost to respondents for the hour burdens for collections of information, identifying and using appropriate wage rate categories. The cost of contracting out or paying outside parties for information collection activities should not be included here. Instead, this cost should be included under “Annual Cost to Federal Government.”

For purpose of this part only, we have varied the number of respondents to reflect historical data and possible eligible respondents that could possibly file for benefits under the TTP.

The total annual estimated burden is 20,928 hours or equivalent to $1,252,750. The cost of reporting and recordkeeping by the public is estimated to be approximately $59.86/hour. We calculated this cost using Employer Costs for Employee Compensation—December 2018, Table 1, Employer costs per hour worked for employee compensation and costs as a percent of total compensation: Civilian workers, by major occupational and industry group, December 2018, USDL 19-0449 (March 19, 2019). The document can be referenced at http://www.bls.gov/news.release/archives/ecec_03192019.pdf. The hourly salary for “professional and related” (the category in which civil engineers would likely fall) including benefits is $59.86.

The Tribal official or his/her representative would be completing a form, submitting information for BIA review, compiling reports from information gathered from outside sources in obtaining the information needed to fulfill this part’s information collection requirements. Only federally-recognized Tribes and their employees would be involved in this activity.

There are 281 respondent Tribes, but in some cases, fewer than all will need to provide information on an annual basis, as shown by the number of responses in the table below.

CFR Section	No of Responses	Hourly Burden per Response	Total Annual Hourly Burden	@$59.86 total Burden Cost (rounded to nearest dollar)
170.240 Provide an annual report with project and activity data	281	20 hours	5,620	$ 336,413
170.443 Provide and Review Information	141 REVISED: 15	20 hour	2,820 REVISED: 300	$ 17,958
170.411 Long Range Transportation Plan Contents	113	40 hours	4,520	$ 270,567
170.421 Reporting Requirement for Tribal Transportation Improvement Program (TTIP)	281	10 hours	2,810	$ 168,207
170.420 Reporting Requirement for Tribal Priority List	281	10 hours	2,810	$ 168,207
170.412 Submission of Long Range Transportation Plan to BIA and Public, and Further Development	113	40 hours	4,520	$ 270,567
170.437-438 Notice Requirements for Public Hearing	205	½ hour	103	$ 6,166
170.439 Record keeping Requirement – Record of Public Hearing	205	1 hour	205	$ 12,271
170.456 Provide Information for Exception	10	4 hours	40	$ 2,394
TOTALS	1,630 responses annually REVISED: 1,504		23,448 REVISED: 20,928 total burden hours annually	$ 1,252,750

13. Provide an estimate of the total annual non-hour cost burden to respondents or recordkeepers resulting from the collection of information. (Do not include the cost of any hour burden already reflected in item 12.)

* The cost estimate should be split into two components: (a) a total capital and start-up cost component (annualized over its expected useful life) and (b) a total operation and maintenance and purchase of services component. The estimates should take into account costs associated with generating, maintaining, and disclosing or providing the information (including filing fees paid for form processing). Include descriptions of methods used to estimate major cost factors including system and technology acquisition, expected useful life of capital equipment, the discount rate(s), and the time period over which costs will be incurred. Capital and start-up costs include, among other items, preparations for collecting information such as purchasing computers and software; monitoring, sampling, drilling and testing equipment; and record storage facilities.

* If cost estimates are expected to vary widely, agencies should present ranges of cost burdens and explain the reasons for the variance. The cost of purchasing or contracting out information collection services should be a part of this cost burden estimate. In developing cost burden estimates, agencies may consult with a sample of respondents (fewer than 10), utilize the 60-day pre-OMB submission public comment process and use existing economic or regulatory impact analysis associated with the rulemaking containing the information collection, as appropriate.

* Generally, estimates should not include purchases of equipment or services, or portions thereof, made: (1) prior to October 1, 1995, (2) to achieve regulatory compliance with requirements not associated with the information collection, (3) for reasons other than to provide information or keep records for the government, or (4) as part of customary and usual business or private practices.

The estimated total annual cost burden to respondents or record keepers for capital and start-up costs components (annualized over the expected useful life) for this information collection is $0. The information collection will not require the purchase of any capital equipment nor create any start-up costs because no equipment is involved in the implementation of these provisions of the TTP. The TTP is a service that already exists within the BIA and, therefore, no start-up costs would be intended through this collection. Any computers and software used to complete this information collection are part of the respondent’s customary and usual business practices and, therefore, are not included in the estimate.

The information collection will not create new or additional costs associated with generating, maintaining, disclosing, or providing information that is not already identified in question 12 of this supporting statement.

14. Provide estimates of annualized cost to the Federal government. Also, provide a description of the method used to estimate cost, which should include quantification of hours, operational expenses (such as equipment, overhead, printing, and support staff), and any other expense that would not have been incurred without this collection of information.

The annualized cost to the Federal Government for this information collection is $238,272. This represents the cost of reviewing data and submissions for participation in the TTP, including some program designing, and miscellaneous expenses related to that review. This is already a function that the BIA realizes and no new or additional costs (in hiring new personnel, administrative maintenance, or equipment) associated with the administration of any information gathered will be realized by the BIA.

$46.54/hour salary x 1.6 benefits = $74.46/hour

We calculated the cost by using GS-13/9 from the Salary Table 2019 - GS. The hourly salary ($46.54) is multiplied by 1.6 to calculate the salary & benefits: $74.46/hour. Each employee works 200 hours/year on the reports. There are 16 employees performing this work. Therefore:

$74.46 x 200 hours = $14,892 (each employee's cost) x 16 employees = $238,272

^*The salary associated with this grade and step is based on the General Schedule 2019. The hourly salary is multiplied by 1.6 to cover benefits. This benefits multiplier is inferred from the Bureau of Labor Statistics, Employer Costs for Employee Compensation – December 2018.

15. Explain the reasons for any program changes or adjustments in hour or cost burden.

Program changes resulted in the deletion of an information collection requirement for Respondent Tribes that already had proposed roads in the NTTFI as of November 7, 2016. Those Tribes no longer have to provide the information set out in § 170.443 for their roads to remain on the inventory. BIA estimates that only Tribes will add (or significantly change proposed roads already in the NTTFI to trigger the requirement to provide the additional information) only proposed roads to the NTTFI.

This decreases the number of responses for that specific information collection requirement from 141 to 15, and the annual burden hours from 2,820 to 300. This results in an overall decrease in the number of responses of 126 (from 1,630 to 1,504) and an overall decrease in the number of burden hours of 2,520 (from 23,448 to 20,928).

16. For collections of information whose results will be published, outline plans for tabulation and publication. Address any complex analytical techniques that will be used. Provide the time schedule for the entire project, including beginning and ending dates of the collection of information, completion of report, publication dates, and other actions.

There is no intention to publish results of this information collection at this time. Abstracts of the information may later be used in justifications for the Department’s budget and ongoing TTP appropriations. A copy of the inventory data will be made available to the affected respondent.

17. If seeking approval to not display the expiration date for OMB approval of the information collection, explain the reasons that display would be inappropriate.

The Department intends to display the expiration date with the OMB Control Number on any application materials asking for information that may be sent to Tribes or Tribal organizations. Section 170.7 of the rule displays the OMB control number. We intend to notify the respondent of the OMB Control Number and the expiration date.

18. Explain each exception to the topics of the certification statement identified in "Certification for Paperwork Reduction Act Submissions."

No exceptions are necessary to the certification statement.

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