[Federal Register Volume 71, Number 55 (Wednesday, March 22, 2006)]
[Notices]
[Pages 14618-14624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-4100]
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Part III
Department of Transportation
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Federal Transit Administration
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Public Transportation on Indian Reservation Program (49 U.S.C.
5311(c)(1)): Notice of Public Meetings, Proposed Grant Program
Provisions; Notice
Federal Register / Vol. 71, No. 55 / Wednesday, March 22, 2006 /
Notices
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-06-24143]
Public Transportation on Indian Reservations Program (49 U.S.C.
5311(c)(1)): Notice of Public Meetings, Proposed Grant Program
Provisions
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice and request for comment; Announcement of public
meetings.
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SUMMARY: This notice does several things. First, it summarizes comments
FTA received in response to information about a new program for Public
Transportation on Indian Reservations Program (hereafter referred to as
the Tribal Transit Program) included in an earlier Federal Register
notice dated November 30, 2005 (70 FR 71950), ``FTA Transit Program
Changes, Authorized Funding Levels and Implementation of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users,'' and details FTA's response to those comments. Second, it
announces the process FTA proposes to use to allocate available funds
starting in FY 2006 and the grant program provisions that FTA proposes
to apply to the program. Third, the notice seeks further comment on the
proposed process and grant program provisions. Finally, the notice
announces two (2) public meetings sponsored by FTA to provide direct
outreach to tribal governments about the Tribal Transit Program and
allow for discussion of this notice.
DATES: Comments should be submitted by April 21, 2006. Late-filed
comments will be considered to the extent practicable.
Public Meeting Dates: FTA will host two public meetings in April
2006 intended to provide direct outreach to tribal governments as part
of the FTA's rollout of the Tribal Transit Program. The first meeting
will be held on April 4, 2006 in Denver, Colorado and the second
meeting will be held on April 7, 2006 in Kansas City, Missouri.
ADDRESSES: You may submit comments identified by the docket number
[Docket No. FTA-06-24143] by any of the following methods:
1. Web Site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
2. Fax: 202-493-2251.
3. Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, PL-401,
Washington, DC 20590-0001.
4. Hand Delivery: Room PL-401 on the plaza level of the Nassif
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.
Instructions: You must include the agency name (Federal Transit
Administration) and Docket number (FTA-06-24143) for this notice at the
beginning of your comments. You should submit two copies of your
comments if you submit them by mail. If you wish to receive
confirmation that FTA received your comments, you must include a self-
addressed stamped postcard. Note that all comments received will be
posted, without change, to http://dms.dot.gov including any personal
information provided and will be available to internet users. Please
see the Privacy Act section of this document.
Docket: For access to the docket to read background documents and
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays.
Public Meeting Addresses: The meeting in Denver will be held at the
Holiday Inn Denver International Airport, 15500 East 40th Avenue,
Denver, Colorado 80239. The second meeting in Kansas City, Missouri
will be held at the Westin Crown Center, 1 Pershing Road, Kansas City,
Missouri 64108. Anyone interested in attending one of these April
meetings should register on-line at http://ttap.colostate.edu/ParticipantRegistration.cfm.
FOR FURTHER INFORMATION CONTACT: Jamie Durham or Lorna Wilson, Office
of Program Management, Federal Transit Administration, 400 Seventh
Street, SW., Room 9315, Washington, DC 20590, phone: (202) 366-2053,
fax: (202) 366-7951 or e-mail questions to
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview
II. Comments and Responses
A. Basis for Formula Apportionment
B. Eligibility
C. Eligible Activities
D. Terms and Conditions
E. Indian Self-Determination and Self-Governance
F. Other
III. Proposed Grant Program Provisions
A. Basis for Allocating Funds
B. Eligibility
C. Eligible Activities
D. Terms and Conditions
E. Local Share
IV. Public Outreach Meetings
I. Overview
On November 30, 2005, FTA published a notice (70 FR 71950, 71965-
66) in the Federal Register, which broadly described new program
changes to or extensions of existing programs contained in its new
reauthorization legislation, the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU).
Among other things, FTA solicited comments relating to the newly
created program entitled ``Public Transportation on Indian
Reservations'' (hereafter referred to as the Tribal Transit Program) in
SAFETEA-LU that authorizes $45 million from the Nonurbanized Area
Formula Grants Program (49 U.S.C. 5311) for FY 2006--2009 to be
apportioned for grants directly to Indian tribes (49 U.S.C.
5311(c)(1)). Under the Tribal Transit Program, Indian tribes are
eligible direct recipients. The funds are to be apportioned for grants
to Indian tribes for any purpose eligible under the Nonurbanized Area
Formula Program (section 5311). More than 20 tribes and several State
Departments of Transportation (DOTs) submitted comments. These comments
and our responses are described later in this notice.
FTA is hosting two public meetings with tribal governments to
discuss the Tribal Transit Program. FTA encourages public participation
at these meetings; however, in order for FTA to properly consider any
comments, they must be submitted in writing to the docket for this
notice. (See ``Instructions'' under the ADDRESSES section of this
notice.) FTA will further consider comments it receives in response to
this notice and at its public meetings as it finalizes the grant
program provisions and develops its FY 2006 Notice of Funding
Availability for the Tribal Transit Program.
II. Comments and Responses
FTA specifically requested comments in the November 30th Federal
Register notice on what criteria should be considered in selecting
Indian tribes to receive funding and what factors should be used in
allocating available funds among successful applicants. FTA also sought
comment about appropriate terms and conditions for the program,
especially from Indian tribes that previously received FTA funding. The
comments are grouped by topic in this notice as follows: (A) Basis for
formula apportionment; (B) eligibility; (C) eligible activities; (D)
terms and
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conditions; (E) Indian self-determination and self-governance; and, (F)
other. The following paragraphs summarize the comments and our
responses. FTA's responses reflect the agency's analysis to date. Since
we are continuing to seek comment on aspects of the program, it is
possible that additional data could be provided which results in FTA
amending our position before it is finalized in the FY 2006 Notice of
Funding Availability.
A. Basis for Formula Apportionment
In its November 30, 2005 Federal Register notice, FTA stated that
SAFETEA-LU does not specify a basis for formula apportionment. The
following comments were received regarding the basis for allocating the
available funds.
Comment: Multiple commenters suggested FTA use a competitive grant
process for allocating the available funds.
Response: FTA agrees with this comment. FTA determined that
applying the Nonurbanized Area Formula Grants Program (section 5311)
formula to this apportionment and allocating funds to all eligible
Indian tribes would only provide a small amount of money to each tribe
and not all tribes may be interested or able to implement transit
projects. Instead, FTA proposes using an annual competitive selection
process to allocate funds among eligible applicants. This process is
described in section III of this notice.
Comment: Multiple commenters suggested that instead of awarding
funds to those with the planning process complete or tribal transit
service in existence, FTA should offer a 60 or 120 day period for
accepting any applications and award funds based on identified transit
needs or planning activities designed to identify transit needs as
reflected in either of the following: Indian tribe's long range plan,
planning documents from other tribal government services or programs,
or tribally established community assessments.
Response: FTA agrees with this comment in part. FTA intends to
evaluate how a project addresses the identified transit needs and the
extent of planning in the eligibility determination and evaluation
criteria, but FTA will limit eligibility in the first year to those
that have completed the planning process or have tribal transit service
in existence (see FTA response to comments in section on eligible
activities). FTA agrees with the suggestion to offer a 60-day period
for accepting proposals.
Comment: Multiple commenters encouraged FTA to establish minimum
and maximum grant awards to ensure that grant funding is large enough
to aid Indian tribes significantly and to ensure that as large a number
of tribes as possible are able to receive the benefits of this program.
Response: FTA agrees with this comment in principle. Since this is
a new program, however, FTA does not intend to establish minimum and
maximum grant awards in the first year of the program in order to
determine the level of tribal interest. Proposals must identify a
specific project and include a detailed project budget to be
considered. The amount allocated to each successful applicant will be
based in part on the total amount of funding requested by all
applicants and the appropriateness of the amount requested for the
activities proposed by the applicant.
Comment: One commenter suggested allocating one-third of available
funds evenly among eligible applicants, one-third on a percentage based
upon resident population to be served, and one-third using a
competitive method among eligible applicants who can leverage funds to
best accomplish major milestones that align with the overall program
intent.
Response: FTA agrees with this comment in part. FTA does not agree
in allocating the funds in percentages; but, for reasons noted above
proposes allocating the entire apportionment to competitively selected
projects by evaluating the benefits of the project, which include
evaluating the ratio of estimated daily ridership to total service
area, the tribal population of the transit service area, and the ratio
of unduplicated users to tribal population. FTA also proposes
evaluating applicant's financial commitment and the extent of
coordination, including the applicants's ability to leverage additional
funding.
Comment: One commenter suggested using a scaled weighting factor
for pre-existing tribal programs, tribal transportation improvement
plans, planning documents from other tribal government services or
programs.
Response: FTA agrees with this comment in part. FTA does not intend
to use a scaled weighting factor, but propose evaluating the adequacy
of project planning as one of the selection criteria.
Comment: One commenter suggested using a rating system that
included criteria such as: higher consideration for funding to Indian
tribes currently providing transportation services, Indian tribes
providing transportation services for participants who are 60- and
older, or Indian tribes providing transportation services for
handicapped participants.
Response: FTA agrees with this comment in principle. Higher
consideration will not necessarily be given to tribes currently funding
transit service, or tribes providing these specific transit services,
but proposals may receive higher scores based on how the proposed
project addresses the needs demonstrated, on whether the human service
transportation needs were considered, and on how well the project
coordinates with other programs, such as transportation services for
participants who are 60 years and older and transportation services for
handicapped participants.
Comment: One commenter suggested the emphasis should be placed on
new and expanded services, discouraging supplanting of funds currently
used to support public transportation.
Response: FTA agrees with this comment. In the first year of the
program, applications will be accepted for both new (with planning
complete) and expanded services. In addition to funding under the
Tribal Transit Program, States must continue to include the tribes in
the equitable distribution of the section 5311 funds apportioned to the
States.
B. Eligibility
In its November 30, 2005 Federal Register notice, FTA stated that
because planning is not an eligible activity under this program, it was
considering limiting participation to Indian tribes that already have
transit options or that have already conducted planning and are
prepared to implement new transit service. The following paragraphs
summarize the comments and responses received in response to this
approach.
Comments: Comments received showed both support and disfavor of
this approach; those showing disfavor were concerned that this approach
would leave a substantial amount of money unobligated because there are
too few tribal transit programs in existence. Additionally, commenters
were concerned that this was not Congress' intent for the program and
urged FTA to reconsider planning as an eligible activity (discussed in
more detail in the next section).
Response: FTA recognizes these concerns, but is bound by the
authority in the statute that states the funds are eligible for any
purpose under section 5311. These purposes include capital and
operating expenses for rural transit and rural intercity bus service.
Planning is not eligible under section 5311 except pursuant to 5311(e),
which is limited to
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15 percent of the funds. Since planning for transit service is not
directly eligible under the Tribal Transit Program, FTA will limit the
eligibility in the first year of the program to tribes that have
completed the planning process and are ready to implement new transit
service or projects that expand or enhance existing transit services.
If there are remaining funds available at the completion of the award
process, the funds will remain in the Tribal Transit Program and will
be available for allocation in FY 2007.
Comment: One commenter encouraged FTA to define eligible recipients
as Federally recognized Indian tribes only.
Response: FTA agrees with this comment. FTA accepts this
recommendation as consistent with the statute and with other DOT
programs for tribes. For the duration of the program, FTA will consider
eligible direct recipients for this program to be the Federally
recognized Indian tribes as identified by the Bureau of Indian Affairs
(BIA) in the U.S. Department of the Interior. As of March 2006, there
are 561 federally-recognized Indian tribes. Non-federally-recognized
Indian tribes are eligible for section 5311 funds apportioned to the
States, but not as eligible direct recipients, and not under the Tribal
Transit Program.
C. Eligible Activities
FTA did not solicit public comment on eligible activities, but we
received many comments encouraging FTA to define planning as an
eligible activity under the Tribal Transit Program. Section 3013 in
SAFETEA-LU amended 49 U.S.C. 5311(c) by authorizing funding for the
Tribal Transit Program ``for any purpose eligible under this section''.
The term ``section'' in this provision refers to 49 U.S.C. 5311.
Eligible purposes under section 5311 include capital projects,
operating costs of equipment and facilities, and the acquisition of
public transportation services for rural transit and rural intercity
bus service. Planning activities are not eligible costs for funding in
section 5311, except pursuant to section 5311(e), limited to 15 percent
of the funds apportioned to the State, and 5311(f) for intercity bus
service. Congress may enact a technical correction to allow the use of
Tribal Transit Program funds for planning purposes in future years.
Until this legislation is enacted, FTA recommends the use of other
resources, such as Indian Reservation Roads Program funds, or section
5311 funds allotted from a State's administrative funds for planning
proposed new tribal transit service. Additional comments received were
about the language in sections 5311(e) and 5311(f); those comments and
responses are described below.
Comment: Many commenters expressed confusion regarding the language
in the statute about the 15 percent permissible for States to spend on
administration, planning, and technical assistance.
Response: FTA agrees that this section can be confusing. Section
5311(e) provides that a State may use not more than 15 percent of its
annual apportionment for administration, planning and technical
assistance. The State may allocate funds from the 15 percent for use
for these purposes by subrecipients, including tribes. If the State
allocates funds from this source to a tribe, the funds can be awarded
to the tribe by the State or directly from FTA. There is no statutory
authority for using funds from the Tribal Transit Program for
administration, planning and technical assistance.
Comment: A few commenters also expressed confusion with regards to
the requirement in section 5311(f) that requires each State to spend 15
percent of its annual section 5311 apportionment ``to carry out a
program to develop and support intercity bus transportation,'' unless
the Governor certifies that ``the intercity bus service needs of the
State are being met.'' The confusion surrounds the eligibility of
``planning and marketing for intercity bus transportation'' as
described in 5311(f).
Response: FTA agrees that this section can be confusing. The intent
of section 5311(f) is to support the connection between nonurbanized
(rural and small urban) areas and the larger regional or national
system of intercity bus service. Another objective is to support
services to meet the intercity travel needs of residents in
nonurbanized areas. Support of intercity bus service is an eligible
expense under section 5311; therefore funds may be used for planning
and marketing specifically for that service. FTA does not intend to
require tribes to spend 15 percent of the funds allotted to them under
the Tribal Transit Program for intercity bus service because the
requirement to spend 15 percent for intercity bus service only applies
to the Section 5311 funds apportioned to the States.
D. Terms and Conditions
FTA solicited comments about appropriate terms and conditions for
the program and requirements we should consider waiving for this
program, especially from Indian tribes that previously received FTA
funding. The comments and FTA's responses are below.
Comment: One commenter suggested that requirements and procedures
be commensurate with the funds available.
Response: FTA agrees with this comment. FTA is undertaking a
thorough and complete review of its statutory, regulatory, and program
requirements to determine the appropriate substantive and programmatic
requirements that will apply to the Tribal Transit Program. FTA is
seeking comment on the proposed requirements described in section III
of this notice.
Comment: One commenter suggested that FTA's ``open door''
requirement of section 5311, which stipulates services must be
available to the general public, should not be waived.
Response: FTA agrees with this comment. Section 5311(c)(1) does not
permit FTA to waive the requirement that eligible projects under the
Tribal Transit Program be open to the general public. Transit service
funded under this program must be available to the general public in
the service area; services funded by this program cannot purposefully
exclude other members of the general public, nor can they purposefully
exclude persons who are not members of the applicant tribe.
Comment: One commenter suggested that the tribal program should be
subject to similar comprehensive planning requirements to ensure
maximum utilization of limited funds and to avoid duplication of
service.
Response: FTA agrees with this comment. Planning is included in the
eligibility determination and adequacy of planning is included in the
proposed evaluation criteria for selecting projects as described in
section III of this notice.
Comment: One commenter suggested that tribes be active participants
in the locally-developed, coordinated public transit-human services
transportation planning process.
Response: FTA agrees with this comment in principle. A locally-
developed, coordinated public transit-human services transportation
plan is not an explicit requirement of 49 U.S.C. 5311; however, in
areas seeking funds under the Job Access Reverse Commute Program (49
U.S.C. 5316), the New Freedom Program (49 U.S.C. 5317), or the Special
Needs of Elderly Individuals and Individuals with Disabilities Program
(49 U.S.C. 5310), tribal transit agencies are encouraged to participate
in the development of the plan.
Comment: One commenter suggested that tribes demonstrate financial
stability and agree to data and financial reporting requirements.
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Response: FTA agrees with this comment. Demonstration of financial
capacity and financial reporting are necessary requirements.
Demonstration of financial commitment is included in the proposed
evaluation criteria.
Comment: One commenter representing multiple tribal clients
suggested that tribes not be required to comply with State-administered
Disadvantaged Business Enterprise (DBE) certification programs as a
condition of receiving tribal transit grants.
Response: FTA agrees with this comment. FTA does not intend to
apply 49 CFR part 26 to tribes under this program; this includes the
requirement of complying with State-administered DBE certification
programs.
Comment: One commenter suggested that Americans with Disabilities
Act of 1990 (ADA) standards be kept in place.
Response: FTA agrees with this comment. Since service funded under
the Tribal Transit Program is limited to public transportation as
defined in 49 U.S.C. 5302(a)(10), FTA believes it is in the national
interest to ensure accessible transportation for persons with
disabilities as required by the Americans with Disabilities Act of
1990.
Comment: Several commenters encouraged FTA to consider providing 80
percent Federal share for operating assistance and anywhere from 80-100
percent Federal share for capital projects.
Response: FTA agrees with this comment in part. FTA recognizes the
particular challenges tribes may have providing the local match, but to
ensure that participants in this program have a vested interest we
propose requiring some local match. To encourage participation in this
program FTA is proposing two alternatives for lower local match
requirements than typically required under other FTA programs. The
proposals are described in detail in section III of this notice and FTA
welcomes comments on which proposal we should apply under this program.
Comment: Several commenters said that tribes should not have to
provide local match for the first two years of grant award.
Response: FTA agrees with this comment in part. FTA is proposing to
use our existing procedures to allow eligible recipients to request
deferral of the local share, as needed, as long as the commitment to
provide local match before project completion exists. FTA disagrees
with allowing local share to be waived entirely in the first two years
of grant award; some local match will be required from the Indian
tribes and the source of these funds must be identified in proposals.
E. Indian Self-Determination and Self-Governance
FTA did not solicit comment on this subject, but many commenters
encouraged FTA to develop a program that supports tribal sovereignty
and self-determination. Commenters recommended that FTA develop grant-
funding agreements which are consistent with the self-determination and
self-governance procedures and suggested that the DOT was authorized in
SAFETEA-LU to enter into Indian Self Determination and Education
Assistance Act (ISDEAA) contracts and agreements with tribal
governments.
Response: FTA agrees that the program should be developed in a way
that recognizes tribal sovereignty, but disagrees with specific
suggestions to use the ISDEAA contracts and agreements. Section 1119 in
SAFETEA-LU amended section 202(d) in Chapter 2 of Title 23 (Highways)
by authorizing funds for Indian tribal governments to be disbursed by
contracts or agreements in accordance with the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450 et seq.).
This statutory authorization is limited to Federal-aid highway funding
provisions in Chapter 2 of Title 23 (Highways) of the U.S. Code. The
Tribal Transit Program is authorized in SAFETEA-LU by an amendment to
49 U.S.C. 5311. Section 5311 is codified in Chapter 53 (Public
Transportation) of Title 49 of the United States Code. Therefore, FTA
does not have the statutory authority to use contracts and agreements
under the Indian Self-Determination and Education Assistance Act for
projects funded under the Tribal Transit Program.
F. Other
Many commenters encouraged FTA to work with Indian tribes on a
government-to-government basis, to follow-up the previous comment
period with additional consultation meetings, and to further coordinate
our SAFETEA-LU implementation efforts with the Indian Reservation Roads
(IRR) Program Coordinating Committee to develop mutually agreeable
tribal transit procedures. Further, commenters requested that these
procedures be coordinated with the Deputy Assistant Secretary for
Tribal Government Affairs within DOT and encouraged FTA to document
best practices, resources, and up-to-date information through Web sites
such as Community Transportation Association of America (CTAA),
American Public Transportation Association (APTA), National Rural
Technical Assistance Program (RTAP), Multi-State Technical Assistance
Program (MTAP), Tribal Technical Assistance Program (TTAP), Project
Action and others.
Response: FTA is committed to operating within a government-to-
government relationship with Indian tribes consistent with the DOT's
Order on Program, Policies, and Procedures affecting American Indians,
Alaska Natives, and Indian tribes (DOT 5301.1, November 16, 1999). FTA
looks forward to providing up-to-date resources through our Web site
and others, where possible. FTA has consulted with the Bureau of Indian
Affairs (BIA) and the Federal Highway Administration (FHWA) since the
legislation was signed on various aspects of this program. FTA is
currently working with the regional Tribal Technical Assistance Program
(TTAP) Centers on tribal transportation matters and will continue to
work with them as we implement the program. To the maximum extent
possible, we will continue to coordinate with other agencies and
departments as this program is developed. In addition, FTA has
scheduled two outreach meetings to provide face-to-face opportunities
for interested Indian tribes to meet with FTA staff and discuss the
program.
III. Proposed Grant Program Provisions
FTA initially considered using an interim measure to allocate FY
2006 funds based on letters of interest. Rather than establishing an
interim process for allocating the funds, however, we now propose
establishing the allocation methodology and program requirements for
the life of the program. Using the comments received in the first
public comment period and the restrictions of the statute, we describe
below our proposal for the allocation methodology and program
requirements of the Tribal Transit Program. The paragraphs are grouped
by topic: (A) Basis for allocating funds; (B) eligibility; (C) eligible
activities; (D) terms and conditions; (E) local share. We invite
comments on the methodology and program requirements proposed for the
Tribal Transit Program described in the following paragraphs.
A. Basis for Allocating Funds
Rather than establishing a new process for allocating available
funds each year, we propose using an annual competitive selection
process to evaluate, score, and rank proposals to receive funding. We
propose using the following criteria to competitively select projects
for funding:
Demonstration of need.
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Benefits of project.
Adequacy of project planning.
Financial commitment.
Coordination.
FTA will also consider the reasonableness of the amount requested
compared to the scope of the proposed project. If the total available
funds in a given year are not awarded, they will remain in the program
for allocation in the following year. We intend to solicit the
proposals through publishing a Notice of Funding Availability
(``NOFA''). The NOFA will contain all necessary program information
including: (1) Funding opportunity description; (2) award information;
(3) eligibility information; (4) application and submission
information; (5) application review information; and (6) award
administration information, including requirements associated with an
FTA grant.
B. Eligibility
Eligible direct recipients include Federally-recognized Indian
tribes or Alaska Native villages, groups, or communities as identified
by the BIA in the U.S. Department of the Interior. Unless the statute
is amended to include planning as an eligible activity, eligible
applicants will be limited to tribes that have completed the planning
process and are ready to implement transit service and tribes with
existing transit services. To be eligible applicants, tribes must have
the requisite legal, financial, and technical capabilities to receive
and administer Federal funds under this program.
C. Eligible Activities
Tribal Transit Program funds may be used for any purpose authorized
under section 5311(b)(1). This means that grants can be awarded to
recipients located in rural and small urban areas (populations under
50,000) for public transportation capital projects, operating costs of
equipment and facilities for use in public transportation, and the
acquisition of public transportation services, including service
agreements with private providers of public transportation services.
Service funded under this program must be designed to maximize use
by members of the general public who have disabilities. Coordinated
human service transportation that primarily serves elderly persons and
persons with disabilities, but which is not restricted from carrying
other members of the public, is considered available to the general
public if it is marketed as public transportation.
D. Terms and Conditions
Section 3013 of SAFETEA-LU amends 49 U.S.C. 5311(c) by authorizing
funds for the Tribal Transit Program ``under such terms and conditions
as may be established by the Secretary.'' The term ``Secretary'' in
this provision refers to the Secretary of Transportation. The Secretary
of Transportation possesses the authority to limit the applicability of
certain substantive and procedural requirements that are set forth in
Title 49 (Transportation) of the United States Code. This includes the
Federal transit assistance provisions in Chapter 53 (Public
Transportation) of Title 49, which are administered by FTA. As
previously stated in this notice, FTA is in the process of reviewing
the appropriate Department of Transportation and FTA requirements that
should apply to grants awarded under the Tribal Transit Program. The
Secretary of Transportation, however, does not possess the authority to
limit the applicability of government-wide grant requirements (commonly
referred to as cross-cutting requirements) that apply to all Federal
grants. Recipients of Federal assistance are subject to many
requirements regardless of the source of funds, for example
restrictions on lobbying. Recipients under the Tribal Transit Program
are subject to these government-wide grant requirements, which are not
all named in this document. In addition, some Federal requirements are
applicable regardless of whether Federal assistance is provided. For
example, the requirement for drivers of vehicles over a certain size is
to hold a Commercial Drivers License.
FTA believes the following specific statutory or regulatory
requirements must or should be applied to grants awarded under this
program:
1. Common Grant Rule (49 CFR part 18), ``Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments.'' (Federally recognized Indian tribes are included in the
definition of ``Government'' in 49 CFR part 18.)
2. Civil Rights Act of 1964. Compliance with civil rights statutes
will be required, including compliance with equity in service and
general Equal Employment Opportunity (EEO) principles. FTA proposes,
however, that grantees under this program not be required to comply
with the FTA program-specific guidance for Title VI and Title VII.
3. Section 504 and ADA requirements in 49 CFR parts 27, 37 and 38.
Part 27 is the regulation for nondiscrimination on the basis of
disability in programs and activities receiving or benefiting from
federal financial assistance. Part 37 is the DOT's regulation that
implements the Americans with Disabilities Act. Part 38 is the
regulation that specifies the accessibility specifications for
transportation vehicles.
4. Drug and Alcohol Testing requirements. 49 CFR part 655 is an FTA
regulation that addresses a national safety issue for operators of
public transit.
5. Planning requirements. The FTA/FHWA joint planning regulations
within 23 CFR part 450 are not applicable since tribal governments are
neither States nor metropolitan areas. However, we propose to require
that all Indian tribes participating in the Tribal Transit Program
include projects within their transportation plans (i.e. Tribal
Transportation Improvement Plan (TTIP) or Long Range Transportation
Plan (LRTP)) and attach their plan to the Statewide Transportation
Improvement Program (STIP). Proposals will be accepted for rating so
long as the project exists in a TTIP or the tribe's LRTP. However, FTA
will not award a grant until the approved project is attached or
included in the STIP.
6. National Environmental Policy Act (NEPA) requirement. This
requirement, similar to the Department's ADA regulation, is an
environmental requirement that applies government-wide to projects
funded with Federal financial assistance, and although Federal
departments might have issued their own regulations, such as DOT's
regulation in part 771, this requirement is considered a cross-cutting
requirement.
7. School Bus and Charter Service. The regulatory implementation
requirements regarding school bus and charter service must apply
because the Tribal Transit Program is ``for purposes eligible under
5311'' and the definition of public transportation does not include
school bus and charter service. Section 5323(d) places limits on the
charter services, which may be provided by federally funded public
transportation operators (49 CFR part 604). Section 5323(f) prohibits
the use of FTA funds for exclusive school bus transportation for school
students and school personnel. The implementing regulation (49 CFR part
605) does permit regular service to be modified to accommodate school
students along with the general public.
8. National Transit Database (NTD) Reporting Requirement. 49 U.S.C
5335 requires NTD reporting for all direct recipients of section 5311
funds. FTA has not yet identified the specific data
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elements that tribes will be required to report or the reporting
mechanism, but will seek to minimize the reporting burden while
collecting basic information about tribal transit systems for inclusion
in assessments of the effectiveness of FTA programs on a national
basis. Specific reporting instructions will be provided in subsequent
years.
Given the precedent established in executive memorandums, executive
orders, and our own DOT order to streamline processes and requirements
for programs that affect Indian tribes, we are proposing not to apply
the DOT and FTA requirements listed below. FTA solicits comments on the
requirements we propose not to apply.
1. Labor Protections (49 U.S.C. 5333(b)). The labor protection
requirements of section 5333(b) are applied to the section 5311 program
through a standard warranty agreed to in writing by each subrecipient
of the States to which funds are apportioned. The State, as FTA's
direct grantee, certifies to the Department of Labor that each
subrecipient has agreed to the warranty. Because the tribes will be
direct recipients of FTA under this program, not subrecipients of the
States, the existing warranty arrangements are irrelevant. Further, the
potential impact of grants under this program on organized labor is
insignificant, so FTA does not consider it necessary to require
alternative labor protective arrangements.
2. Buy America (49 CFR part 661). Currently Buy America
requirements apply only to procurements over $100,000. Given the small
size of the program relative to other FTA programs to which Buy America
applies, FTA believes the benefits of imposing this requirement would
be insignificant relative to the potential increased administrative
burden to the tribes not receiving assistance under any other FTA
program.
3. Pre-award and post-delivery audits (49 CFR part 633). These
requirements are substantially related to the Buy America requirements
described above which we are proposing not to apply.
4. Bus Testing (49 CFR part 665). FTA is proposing not to apply
this requirement to simplify vehicle procurements by tribes funded only
under the Tribal Transit Program. Since the vast majority of vehicle
models that are subject to the requirement will have been tested before
purchase by other FTA grantees, the purposes of the regulation can be
met without imposing additional administrative burdens on the tribes.
5. FTA specific civil rights program requirements, including Title
VI, and Equal Employment Opportunity (EEO) program specific
requirements. FTA believes that requiring compliance with the
underlying civil rights statutes is sufficient. Grantees will be
required to certify annually to providing equity in service and EEO
compliance. The FTA specific requirements described in FTA Circulars
4702.1 and 4704.1 are currently in the process of being updated. Given
the smaller size of the program relative to other FTA programs to which
the FTA specific Title VI and EEO guidance applies, FTA believes the
benefits of imposing these requirements would be insignificant relative
to the potential increased administrative burden to the tribes not
receiving assistance under any other FTA program.
6. Disadvantaged Business Enterprise (DBE) (49 CFR part 26). FTA
has determined that it is not necessary to apply the DBE requirements
to this program, because the administrative burdens of compliance with
the regulation by the tribes may be disproportionate to the incremental
benefits. The cross-cutting nondiscrimination requirements that are
applied to the Tribal Transit Program will satisfy the
nondiscrimination aspects of the DBE rule. Under the regulation, DBE
goals and plans are required only for contracting opportunities,
exceeding $250,000, not including vehicle procurements, which may not
apply to many grantees under this program. Tribes can be expected to
use DBEs, including tribally-owned businesses when there are
contracting opportunities whether or not the rule is applied. Transit
vehicle manufacturers have a direct compliance obligation under the
regulation.
When the terms and conditions for the program are finalized they
will be incorporated into certifications and assurances and grant
agreements that all successful applicants must sign in order to receive
Tribal Transit Program funds. These terms and conditions will be
included in the Notice of Funding Availability for this program. Please
note that tribes receiving grants under other FTA programs are subject
to the standard grant provisions for those programs. The authority of
the Secretary to determine the terms and conditions applies only to the
Tribal Transit Program.
E. Local Share
In response to comments that the requirement for a local share is a
barrier to participation in the program while still ensuring that the
tribe has an investment in the project, FTA proposes two local share
alternatives and invites comments on which the tribes find more
beneficial. The final Notice of Funding Availability will include only
one of these alternatives:
a. FTA proposes a Federal share of 80 percent and a local share of
20 percent for both capital and operating assistance projects. This
reduces the local share required for operating assistance compared to
the standard FTA 50/50 match and maintains the standard 80/20 match for
capital assistance. Under this proposal the Federal share available to
a tribe under the Tribal Transit Program could be lower than the
Federal share for a similar project funded from a State's section 5311
apportionment should that State apply the higher federal share
(``sliding scale'') allowed under section 5311, which ranges for States
described in section 120(b) of title 23 from 81.3 percent to 94.89
percent, in accordance with the formula under that section for States
with a large amount of federal lands; or
b. FTA proposes for the tribal program the highest Federal share
(``sliding scale'') allowed under section 5311 for States described in
section 120(b) of title 23 in accordance with the formula under that
section for States with a large amount of federal lands. Since tribes
are not States and some tribes are located in more than one State, FTA
will allow tribes the highest sliding scale Federal share allowed for
any State under section 120(b)(1): 95 percent (rounded up from 94.89)
for capital and 60 percent (rounded up from 59.31) for operating
assistance. This proposal provides a higher Federal share for capital
projects and a slightly higher Federal share for operating assistance
than the standard 80/20 and 50/50 match and reduces the overall local
share required for most tribal transit projects.
To encourage coordination among Federal agencies that provide
transportation services, matching funds may be provided from Federal
agencies other than the Department of Transportation. Federal Lands
Highway program funds, administered by the Federal Highway
Administration, may also be used as matching funds as can Indian
Reservation Roads (IRR) Program funds.
FTA solicits comments on the requirements presented above that we
propose to apply under this program.
IV. Public Outreach Meetings
FTA is holding one-day outreach meetings in Denver, Colorado on
Tuesday, April 4, 2006 and Kansas City, Missouri on Friday, April 7,
2006 as
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part of the implementation of the Tribal Transit Program created by
SAFETEA-LU. The meetings will be a combination of general sessions and
break-out sessions and will last from 8 a.m. until 4 p.m. The meetings
will allow FTA to provide a program update and receive input from
interested parties on the information presented in this notice. While
we encourage free dialogue during the public meetings, comments must be
submitted in writing to the docket in order to be considered by FTA.
All participants must pre-register for the meeting of their choice by
registering online at http://ttap.colostate.edu/ParticipantRegistration.cfm. Registration is also available by fax;
please send an e-mail to [email protected] if registration
forms are needed or if you have any questions regarding these meetings.
Registration for the meetings was scheduled to end Thursday, March 16,
2006. However, due to the late publication of this notice, we will
accept registration through March 23, 2006.
Issued in Washington, DC, this 16th day of March, 2006.
Sandra K. Bushue,
Deputy Administrator.
Appendix--FTA Regional Offices
Richard H. Doyle, Regional Administrator, Region 1--Boston,
Kendall Square, 55 Broadway, Suite 920, Cambridge, MA 02142-1093,
Tel. 617 494-2055.
States served: Connecticut, Maine, Massachusetts, New Hampshire,
Rhode Island, and Vermont.
Letitia Thompson, Regional Administrator, Region 2--New York,
One Bowling Green, Room 429 New York, NY 10004--1415, Tel. No. 212
668-2170.
States served: New Jersey, New York, and the Virgin Islands.
Susan Borinsky, Regional Administrator, Region 3--Philadelphia,
1760 Market Street, Suite 500, Philadelphia, PA 19103-4124, Tel. 215
656-7100.
States served: Delaware, Maryland, Pennsylvania, Virginia, West
Virginia, and District of Columbia.
Yvette Taylor, Regional Administrator, Region 4--Atlanta,
Atlanta Federal Center, Suite 17T50, 61 Forsyth Street SW, Atlanta,
GA 30303, Tel. 404 562-3500.
States served: Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, Puerto Rico, South Carolina, and Tennessee.
Don Gismondi, Deputy Regional Administrator, Region 5--Chicago,
200 West Adams Street, Suite 320, Chicago, IL 60606, Tel. 312 353-
2789.
States served: Illinois, Indiana, Michigan, Minnesota, Ohio, and
Wisconsin.
Robert C. Patrick, Regional Administrator, Region 6--Ft. Worth,
819 Taylor Street, Room 8A36, Ft. Worth, TX 76102, Tel. 817 978-
0550.
States served: Arkansas, Louisiana, Oklahoma, New Mexico and
Texas.
Mokhtee Ahmad, Regional Administrator, Region 7--Kansas City,
MO, 901 Locust Street, Room 404, Kansas City, MO 64106, Tel. 816
329-3920.
States served: Iowa, Kansas, Missouri, and Nebraska.
Lee O. Waddleton, Regional Administrator, Region 8--Denver,
12300 West Dakota Ave., Suite 310, Lakewood, CO 80228-2583, Tel.
720-963-3300.
States served: Colorado, Montana, North Dakota, South Dakota,
Utah, and Wyoming.
Leslie T. Rogers, Regional Administrator, Region 9--San
Francisco, 201 Mission Street, Room 1650, San Francisco, CA 94105-
1926, Tel. 415 744-3133.
States served: American Samoa, Arizona, California, Guam,
Hawaii, Nevada, and the Northern Mariana Islands.
Rick Krochalis, Regional Administrator, Region 10--Seattle,
Jackson Federal Building, 915 Second Avenue, Suite 3142, Seattle, WA
98174-1002, Tel. 206 220-7954.
States served: Alaska, Idaho, Oregon, and Washington.
[FR Doc. E6-4100 Filed 3-21-06; 8:45 am]
BILLING CODE 4910-57-P