06-6911. Public Transportation on Indian Reservations Program; Tribal Transit Program

AGENCY:

Federal Transit Administration (FTA), DOT.

ACTION:

Notice of funding availability: Solicitation of grant applications for FY 2006 tribal Transit Program Funds.

SUMMARY:

This Notice accomplishes several purposes. First, the U.S. Department of Transportation, Federal Transit Administration (FTA) summarizes and responds to written comments FTA received in response to a March 22, 2006, Federal Register Notice regarding proposed grant program provisions for this new program and to oral comments FTA received during two announced public meetings on this program that were held on April 4, 2006, in Denver, Colorado, and on April 7, 2006, in Kansas City, Missouri. Second, this Notice announces the availability of funds in fiscal year (FY) 2006 for the Public Transportation on Indian Reservations Program, a new program authorized by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. Finally, this Notice announces a national solicitation for applications, with grantees and projects to be selected on a competitive basis; the grant terms and conditions that will apply to this new program; and grant application procedures and selection criteria for FY 2006 projects.

ADDRESSES:

This announcement is available on the FTA's Web site at: http://www.fta.dot.gov. FTA will announce final selections on the Web site and in the Federal Register. A synopsis of this announcement will be posted on the governmentwide electronic grants Web site at: http://www.GRANTS.GOV. Applications may be submitted in one of three ways: electronically through GRANTS.GOV, in hard copy to Federal Transit Administration, 400 Seventh Street, SW., Room 9315,Washington, DC 20590, Attention: Lorna R. Wilson; or sending by e-mail to [e-mail].

DATES:

Complete applications for Public Transportation on Indian Reservations Program grants must be submitted in hard copy to the FTA, via e-mail by October 16, 2006, or submitted electronically through the GRANTS.GOV Web site by October 16, 2006. Anyone intending to apply electronically should initiate the process of registering on the GRANTS.GOV site immediately to ensure completion of registration before the deadline for submission. FTA will announce grant selections in the Federal Register when the competitive selection process is complete.

Applicants should be aware that materials sent through the U.S. Postal Service are subject to significant delays in delivery due to the security screening process. Use of courier or express delivery services is recommended if unable to apply electronically.

FOR FURTHER INFORMATION CONTACT:

Contact the appropriate FTA regional Tribal Liaison (Appendix A) for application-specific information and issues. For general program information, contact Lorna R. Wilson, Office of Transit Programs, [phone], e-mail: [e-mail]. A TDD is available at 1-800-877-8339 (TDD/FIRS).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Overview

II. Background

III. Comments and Responses

A. Process and Criteria

B. Terms and Conditions

C. Other Issues

IV. Funding Opportunity Description

A. Authorized Funding for FY2006

B. Background

V. Award Information

VI. Eligibility Information

A. Eligible Applicants

B. Eligible Projects

VII. Cost Sharing or Matching

VIII. Terms and Conditions

IX. Application Submission Information

X. Guidelines for Preparing Grant Application

XI. Application Content

A. Application Information

B. Technical, Legal, and Financial Capacity

C. Project Information

D. Application Evaluation Criteria

E. Submission Dates

F. Intergovernmental Review

G. Funding Restrictions

H. Other Submission Requirements

XII. Application Review Process

A. Competitive Selection Process

B. Evaluation Criteria

1. Criterion 1: Project Planning and Coordination

2. Criterion 2: Demonstration of Need

3. Criterion 3: Benefits of Project

4. Criterion 4. Financial Commitment and Operating Capacity

C. Proposals for Planning Grants

D. Review and Selection Process

XIII. Award Information

XIV. Other Information

A. Technical Assistance

B. Standard Assurances

C. Reporting

D. Agency Contacts

Appendices

Appendix A. FTA Regional Offices and Tribal Liaison

Appendix B. Federal Fiscal Years 2006 and 2007 Certifications and Assurances for the Federal Transit Administration Public Transportation on Indian Reservations Program

Appendix C. Technical Assistance Contacts

I. Overview

Section 3013 of SAFETEA-LU amended 49 U.S.C. 5311(c) by establishing the Public Transportation on Indian Reservations Program (hereinafter referred to as the Tribal Transit Program). This new program authorizes direct grants “under such terms and conditions as may be established by the Secretary” to Indian tribes for any purpose eligible under FTA's Nonurbanized Area Formula Program, 49 U.S.C. 5311. The funding level authorized for this new program will increase from $8 million in FY 2006 to $15 million in FY 2009. The Conference Report to SAFETEA-LU indicated that the funds set aside for Indian tribes in the Tribal Transit Program are not meant to replace or reduce funds that Indian tribes receive from States through FTA's Nonurbanized Area Formula Program.

II. Background

FTA published a Notice in the Federal Register 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: Notice” which announced changes to current FTA programs and new programs, including the Tribal Transit Program. In the November 30, 2005, Federal Register Notice, FTA set forth and requested public comments on the proposed basis for formula apportionment for the Tribal Transit Program, eligible grant purposes, and proposed program requirements.

On March 22, 2006, FTA published a Notice in the Federal Register (71 FR 14618), “Public Transportation on Indian Reservations Program (49 U.S.C. 5311(c)(1): Notice of Public Meetings, Proposed Grant Program Provisions; Notice.” FTA responded to comments that were received from the public in response to the November 30, 2005 Federal Register Notice, and requested additional comment on the following issues: the proposed basis for allocating funds; grantee eligibility; eligible purposes for grant funds; proposed terms and conditions for the grant program, and local share options. The Notice also announced two one-day outreach meetings on the Tribal Transit Program. The comment period on the March 22, 2006, Federal Register Notice ended on April 21, 2006, but comments submitted after that date were considered.

III. Comments and Responses

FTA received 28 written comments in response to the March 22, 2006, Federal Register Notice and additional oral comments were received from the Indian tribes and other organizations at the two public outreach meetings that were held in April 2006. A summary of the oral comments were placed in the docket for this Notice. All of the written and oral comments received by FTA during the comment period can be divided into the following categories: (a) The process and the criteria that should be established by FTA to allocate funding under the Tribal Transit Program; (b) the terms and conditions that should be applied to grants awarded under the Tribal Transit Program, which includes the proposed options for local match; and (c) other issues that were not specifically proposed or addressed in the March 22, 2006 Federal Register Notice. The comments received from the Indian tribes and others were generally very favorable to the establishment and implementation of this new program and proposed program requirements. However, the Indian tribes and others strongly disagreed with some of FTA's proposals in the March 22, 2006, Federal Register Notice. The Indian tribes also offered recommendations and changes to FTA's proposals based on their unique perspective and experience in providing public transportation on Indian reservations.

A. Process and Criteria

The March 22, 2006, Federal Register Notice proposed a single annual competitive selection process to fund both new and existing tribal transit systems and suggested not establishing minimum or maximum awards. In addition, the Notice proposed the following five criteria that would be evaluated and rated by FTA in making an award selection: Demonstration of need; benefits of the project; adequacy of project planning; financial commitment; and coordination. The Indian tribes were mostly in agreement on FTA's proposal to make single annual competitive selections for awards under the Tribal Transit Program. However, there were divergent comments received concerning the criteria proposed by FTA for project funding under this new program. We will address the comments that were submitted by the Indian tribes and others in the following section of this document.

Comment: There were multiple comments concerning FTA's proposal for allocating funds in this new program. Several comments from small Indian tribes observed that FTA's criteria appeared to be biased in favor of existing tribal transit systems. Comments from larger Indian tribes stated that the criteria should be based on established transit systems or for tribes that have identified their transit needs in the Tribal Transportation Improvement Program. Other comments suggested an additional criterion that would consider the reasonableness of the amount requested or that projects should be funded for multiple years to ensure successful implementation of transit projects.

Response: FTA will ensure that there will be an equitable distribution of funds in this new program for eligible transit projects that are planned, constructed, or operated by the Indian tribes. FTA has decided to include the following four criteria: project planning and coordination; demonstration of need; benefits of project; and financial commitment and operating capacity.

In addition, to further ensure an equitable distribution of funds in this new program, FTA will separately evaluate proposals under the following three categories: (1) Start-up operations; (2) enhancements or expansions of existing transit services; and (3) transit planning and/or operational planning grants. The application process will also allow a tribal government to apply for multiple years of funding, subject to the availability of appropriations.

B. Terms and Conditions

Comment: There was a clear consensus that strongly disagreed with FTA's interpretation of section 5311(c) prohibiting the use of funds in the Tribal Transit Program for planning purposes. Commenters argued that the statute permits funds in the Tribal Transit Program to be used for any purpose eligible under section 5311. The commenters stated that other subsections of section 5311 permit the use of section 5311 funds for planning. Therefore, planning should be an eligible purpose under section 5311(c).

Response: FTA's interpretation that planning was not an eligible use of Tribal Transit Program funds was based on the program's history. As originally enacted, Nonurbanized Area Formula Program funds could be used only for capital and operating purposes. Although planning was permitted under certain situations set forth in subsections (e) and (f) of section 5311, FTA viewed the limited eligibility of planning in these subsections as an exception to the general rule that planning was not an eligible purpose. It followed that “any purpose eligible under [section 5311]” meant that section 5311(c)(1) funds could only be used for capital and operating purposes.

Based on the comments submitted to the docket from the Indian tribes and other organizations, and comments heard at the two public outreach meetings held in April 2006 concerning the issue that planning should be eligible under this new program, FTA reviewed section 5311(c), as amended by SAFETEA-LU, to determine whether a more expansive interpretation of the statute might be justified. Under a general rule of statutory construction that gives weight to the plain meaning of a statute, we construe the word “any” in section 5311(c)(1) to be synonymous with “all” eligible purposes under section 5311. This rule of statutory construction is consistent with U.S. Supreme Court decisions which have long held that there is no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. U.S. v. American Trucking Ass'ns., 310 U.S. 534, 543 (1940). By applying this rule of statutory construction, FTA has determined that a broader interpretation of this statute will more effectively carry out the purpose of this new program. FTA therefore interprets Section 5311(c) to allow funds apportioned to Indian tribes to be used for “any” purpose identified under section 5311, which includes planning activities.

FTA notes, however, that because section 5311(c)(1) also states that the Tribal Transit Program funds are to be apportioned under such terms and conditions established by FTA, FTA has the discretion to limit the amount of funds available for each eligible purpose under this program. Accordingly, FTA will limit the amount of funds that are available for planning in the Tribal Transit Program to 15 percent of the grant award. In addition, for grants that are exclusively for planning purposes, FTA will limit the amount of funds to $25,000 per applicant.

Comment: Many of the Indian tribes, and several State Departments of Transportation, commented on FTA's proposal for planning requirements. They disagreed with FTA's proposal that Tribal Transportation Improvement Plans (TTIP) or Long Range Transportation Plans be attached or included in the Statewide Transportation Improvement Program (STIP). The State DOT's specifically contended that a TTIP which did not meet various legal requirements (e.g., public participation, fiscally constrained plans) could potentially disqualify the State's STIP process. Therefore, they suggested that this proposed planning requirement be omitted entirely or, alternatively, that the TTIP be attached to a STIP for informational purposes only and that the TTIP not be considered a formal part of the STIP.

Response: FTA agrees with this concern. FTA recognizes that Indian tribes are not subject to Federal planning requirements. To require the attachment of tribal transportation plans to a STIP could not only cause unnecessary delay to the grant making process but also potentially invalidate the State's STIP. Accordingly, FTA will not require Indian tribes to attach tribal transportation plans to a STIP. However, because it would assist both the Indian tribes and State Departments of Transportation to coordinate and assess their planned transportation projects, FTA encourages Indian tribes, for informational purposes only, to submit a copy of their tribal transportation plans to State Departments of Transportation.

Comment: Many comments were received from the Indian tribes on FTA's two proposed options for local share. Most of the comments opposed both options and recommended that FTA eliminate the local share requirement. Others generally favored a 20 percent local match for both capital and operating expenses.

Response: FTA's first option proposed a Federal share of 80 percent and a local share of 20 percent for both capital and operating assistance projects. The second option proposed the highest Federal share allowed under the Title 23 Section sliding scale for States with large public lands. The second option would thus allow a Federal share of 95 percent for capital projects and a federal share of 60 percent for operating assistance projects. Under both of the two proposed options, FTA believes that a Tribal financial contribution was important to register commitment to projects. However, FTA recognizes that many Indian tribes have limited financial resources. In fact, because tribes often lack financial resources, other Federal assistance programs, such as the Federal Highway Administration Indian Reservations Road program, require no Tribal contribution. Since these concerns outweigh FTA's interest in a financial expression of a tribal commitment to the program, FTA will not require a non-Federal matching share for Tribal Transit Program grants. FTA believes that the intent of this new program will be more quickly achieved without a tribal share matching requirement.

Comment: Two commenters disagreed with FTA's proposal not to apply the labor protective provisions in 49 U.S.C. section 5333(b) to grants under this new program. It was argued that the Tribal Transit Program is a program under section 5311 (which is subject to statutory labor protections) and there is no indication that Congress specifically intended for section 5333(b) labor protections to not apply to this new program.

Response: FTA stated in the March 22, 2006 Federal Register Notice that direct grants from FTA to Indian tribes do not involve State-subrecipient relationships. Therefore, the administrative procedures the U.S. Department of Labor (DOL) uses to apply the section 5311 special warranty do not apply.

Accordingly, FTA proposed not to apply the labor protective provisions of 49 U.S.C. 5333(b) to this new program. However, FTA is aware that DOL is currently initiating a Notice of Proposed Rulemaking to revise its labor protective arrangements for all FTA grants (including the special warranty that is applied in the section 5311 program). Also, although Congress chose not to apply section 5333(b) to several other new programs enacted in SAFETEA-LU, Congress amended section 5311(i) to apply section 5333(b) “if the Secretary of Labor utilizes a special warranty that provides a fair and equitable arrangement to protect the interests of employees.” Congress did not exempt the Tribal Transit Program from this requirement. FTA therefore intends to apply the special warranty to the Tribal Transit Program in the future. However, FTA will postpone the application of the special warranty arrangement to the Tribal Transit Program until DOL adopts procedures for the new program.

Comment: Several comments questioned the applicability of Federal Disadvantaged Business Enterprise (DBE) regulations, 49 CFR part 26, to Indian tribes.

Response: The U.S. Department of Transportation's DBE regulation requires a grant recipient to implement a DBE program and to establish annual DBE goals for all contracting opportunities, except for vehicle procurements, where Federal financial assistance exceeds $250,000. However, due to the relatively small size of the grants that will be awarded under this new program and to streamline program requirements for this new program to the benefit of Indian tribes, FTA has determined that the FTA DBE regulation, 49 CFR part 26, will not apply to the Tribal Transit Program.

Comment: A few comments were received from Indian tribes regarding FTA's interpretation and application of the Civil Rights Act of 1964 to tribal employment rights ordinances (TEROs), which provide for Indian preference in employment and contracting.

Response: FTA will not require Indian tribes under this new program to comply with FTA's program-specific guidance for Title VI and Title VII of the Civil Rights Act of 1964. Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance. Title VII of the Civil Rights Act prohibits discrimination in employment in any business on the basis of race, color, religion, sex, or national origin. Indian tribes are specifically excluded from the definition of an “employer” under the Act. Thus, to the extent that TEROs are consistent with federal statutes that authorize a general preference for Indians in employment or contracting for Federally funded work on or around Indian reservations, FTA will of course comply with applicable law. However, although Indian tribes will not be subject to FTA's program-specific requirements under Title VI and Title VII of the Civil Rights Act, Indian tribes under the Tribal Transit Program will nonetheless still be subject to the provisions of Title VI and Title VII of the Civil Rights Act, unless they are specifically exempt from the Act.

C. Other

Comment: A number of the Indian tribes commented on the obligation of FTA to properly consult with the Indian tribes on a government-to-government basis for this new program in accordance with Presidential executive orders and U.S. Department of Transportation procedures.

Response: FTA recognizes that the Federal government has a unique legal relationship with Indian Indian tribes. When FTA implements a program that might have substantial direct effects on the Indian tribes or on the sovereignty of the Indian tribes, FTA must consult and coordinate using established principles. These principles are set forth in Presidential Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” November 6, 2000, and U.S. Department of Transportation Order 5301.1, “Department of Transportation Programs, Policies, and Procedures affecting American Indians, Alaska Natives and tribes for programs affecting Indian tribal governments.”

During the development of policies and procedures for the Tribal Transit Program, FTA consulted and coordinated with the Indian tribes consistent with these Executive Orders. Specifically, FTA announced and invited comments from the Indian tribes concerning the Tribal Transit Program in two separate Federal Register Notices. The first Federal Register Notice, (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: Notice,” was published on November 30, 2005. This first Notice invited comment from the Indian tribes and others on the proposed basis for formula apportionment for the Tribal Transit Program, eligible grant purposes, and proposed program requirements. A second Federal Register Notice, published on March 22, 2006, responded to comments received from the Indian tribes on the November 30, 2005 Notice. The second Notice further solicited comments from the Indian tribes and others on FTA's proposed basis and criteria to allocate funding under this new program, proposed eligible activities, and proposed grant requirements. The second Notice also announced two one-day public outreach meetings on the Tribal Transit Program. In the two public meetings held in Denver, Colorado, and Kansas City, Missouri, FTA presented its proposals as set forth in the March 22, 2006 Notice and received further comments from the Indian tribes in attendance. In addition, prior to the March 22, 2006, Notice, FTA conducted several national teleconferences with the Indian tribes to obtain their input and views on issues concerning the development and implementation of the Tribal Transit Program.

Comment: Although FTA did not solicit comments, or propose guidance, on the following issue, several Indian tribes suggested that FTA should administer grants under this program in a manner that is either the same or similar to contracts and agreements under the Indian Self-Determination and Education Assistance Act (ISDEAA).

Response: FTA recognizes Indian tribes as sovereign governments that can independently administer certain Federal government programs as authorized by the ISDEAA. Although the statutory authority to enter into contracts with Indian tribes under ISDEAA does not include the FTA, FTA is nonetheless implementing this new program in a manner consistent with the principles of self-determination that are embodied in ISDEAA. To do so, FTA is streamlining and omitting many of the U.S. Department of Transportation and FTA regulatory requirements that apply to other FTA programs as authorized in SAFETEA-LU. FTA will make grants directly to Indian Indian tribes. The Tribal Transit grants will not be administered by the Bureau of Indian Affairs or any other Federal agency.

Comment: A few commenters indicated that Indian tribes should not be required to comply with the intercity bus service provisions in section 5311(f).

Response: FTA agrees with these comments. We do not intend to require tribes to spend 15 percent of funds received under the Tribal Transit Program for intercity bus service. This section 5311(f) requirement only applies to section 5311 funds that are apportioned to the States, and not to section 5311 funds disbursed directly to tribes under the Tribal Transit Program. Therefore, Indian tribes that are recipients of funds under the Tribal Transit Program are not required to expend any part of those funds for intercity bus service. However, Indian tribes may use Tribal Transit program funds for purposes eligible under section 5311(f).

Comment: One commenter inquired whether a regional transit district, which is a political body within a State, would be able to apply for grants under the Tribal Transit Program on behalf of several Indian tribes.

Response: As defined in section 5311(a), as amended by SAFETEA-LU, a recipient means a “State or Indian tribe that receives a Federal transit program grant directly from the Federal Government.” Indian tribes, in accordance with this definition, are thus eligible direct recipients of funds under this new program. Under this statutory definition, however, a local government, such as a regional transit district, would not be eligible to be a direct recipient and therefore a regional transit district or any other local government could not directly apply for grants on behalf of Indian tribes under the Tribal Transit Program. Although local governments will not be eligible direct recipients under this new program, Indian tribes may enter into intergovernmental agreements with local governments for the purpose of assisting Indian tribes in grant-related administrative requirements, such as grant preparation, grant reporting, etc.

Comment: Some commenters strongly encouraged FTA to provide funding for technical and planning assistance to tribal transit programs through the seven (7) Tribal Technical Assistance Programs (TTAP) because SAFETEA-LU authorized an increased funding level for FTA's Rural Technical Assistance Program.

Response: FTA's Rural Transit Assistance Program (RTAP) provides funding to assist in training and technical assistance projects and other support services for transit operators in nonurbanized areas. The RTAP program provides an annual allocation to each State in conjunction with the State's administration of the section 5311 formula assistance program. Because TTAPs are experienced in technical assistance to the tribes, FTA will encourage States to work with TTAP centers to provide technical assistance to tribes. FTA is currently creating a partnership between the TTAPs and the National RTAP.

Comment: Commenters requested FTA to either exclude or limit the eligibility of indirect costs for funds received under the Tribal Transit Program. They maintained that high indirect cost rates of many tribes would dampen the program's benefits.

Response: FTA agrees with this comment. FTA has determined that the eligible indirect costs will be limited to 10 percent of each Tribal Transit grant award.

Comment: One commenter inquired whether an Indian tribe that is within an urbanized area would be eligible to receive funds under the Tribal Transit Program.

Response: The Tribal Transit Program is a program established under the section 5311 program. The purpose of the section 5311 program is to carry out transit projects in rural areas. The general authority for the section 5311 program is set forth in subsection (b) which provides that FTA may award grants to recipients located in areas other than urbanized areas (i.e., areas with a population less than 50,000). Therefore, because the set aside of section 5311 funds for the Tribal Transit Program is authorized by statute only for areas other than urbanized areas (i.e., rural areas), an Indian tribe that is located within an urbanized area would not be eligible to receive funds under the Tribal Transit Program.

IV. Funding Opportunity Description

A. Authorized Funding for FY 2006

The Tribal Transit Program was established by section 3013 of SAFETEA-LU. This section authorized $45 million from the Nonurbanized Area Formula Grants Program (49 U.S.C. 5311) for FY 2006-FY 2009 to be apportioned for grants directly to Indian tribes. The actual amount each year is subject to the availability of appropriations. 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). In FY 2006, $7.92 million is available for allocation to projects selected through the process announced in this Notice.

B. Background

Prior to SAFETEA-LU, the section 5311 program did not include a separate public transit program for tribes. Instead, tribes were eligible under the section 5311 program as subrecipients. SAFETEA-LU has now authorized a Tribal Transit Program and has authorized eligible tribes to be direct recipients of section 5311 Program funds. As expressed in the Conference Report for SAFETEA-LU, it is the intent of Congress that funds for the Tribal Transit Program not replace or reduce funds tribes receive from States under the section 5311 program.

V. Award Information

The number and amount of awards will be determined by a competitive process. However, funding is available for start up services, enhancements or expansion of existing transit services, and for planning studies and operational planning. Approximately 25% of the funding is set aside for start up grants. Planning grants will be limited to $25,000 per applicant. Multiple year projects will be considered for funding, subject to the availability of annual appropriations.

VI. Eligibility Information

A. Eligible Applicants

Eligible direct recipients include federally-recognized Indian tribes or Alaska Native villages, groups, or communities as identified by the Bureau of Indian Affairs (BIA) in the U.S. Department of the Interior. To be eligible recipients, tribes must have the requisite legal, financial and technical capabilities to receive and administer Federal funds under this program.

B. Eligible Projects

Tribal Transit Program funds may be used for any purpose authorized under section 5311. This means that grants can be awarded to recipients located in rural and small urban areas with populations under 50,000 not identified as an urbanized area by the Bureau of the Census for public transportation capital projects, operating costs of equipment and facilities for use in public transportation, planning, 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 be accessible to 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.

VII. Cost Sharing or Matching

No cost sharing is required for this program; the Federal grant may fund up to 100 percent of eligible project costs. However, FTA encourages tribes to leverage the program funds and demonstrate commitment to the project through in-kind contributions and use of other funding sources that are available to support public transportation service.

VIII. Terms and Conditions

Section 3013 of SAFETEA-LU amended 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.” Pursuant to this discretionary statutory authority in SAFETEA-LU, FTA published a Notice dated March 22, 2006, in the Federal Register (71 FR 14618), “Public Transportation on Indian Reservations Program (49 U.S.C. 5311(c)(1): Notice of Public Meetings, Proposed Grant Program Provisions,” and proposed certain statutory and regulatory terms and conditions that should apply to grants awarded under this new program. The statutory and regulatory terms and conditions that were proposed by FTA for the Tribal Transit Program pertained only to U.S. Department of Transportation and FTA requirements. As we indicated in the March 22, 2006, Federal Register Notice, FTA does not possess the authority to waive cross-cutting or government-wide statutory and regulatory requirements (e.g., National Environmental Policy Act). However, to the extent permitted by law and in recognition of the unique status and autonomy of Indian Indian tribes, FTA has made every effort in establishing the terms and conditions to balance the objective of this new program, which will directly benefit transit projects for Indian tribes, with other national objectives (e.g., safety) that are important not only to Indian tribes but also to the general public.

FTA received a substantial number of comments from Indian tribes and other groups concerning certain proposed terms and conditions for the Tribal Transit Program and FTA's responses to these comments were specifically addressed earlier in this Notice. However, except for a few proposed terms and conditions, such as FTA's proposal that Tribal transportation plans be attached or included on a STIP, the comments for the most part reflected a consensus that was in agreement with FTA's proposed terms and conditions for this new program. Therefore, after careful review and consideration of the comments received from Indian tribes and others, FTA has established appropriate grant requirements for the Tribal Transit Program. These specific terms and conditions are set forth in a new FTA Master Agreement for the Tribal Transit Program. This Master Agreement is available on FTA's Web site at http://www.fta.dot.gov/​17861_​18441_​ENG_​HTML.htm.

The following terms and conditions, which were initially proposed in the March 22, 2006, Federal Register Notice, apply to the Tribal Transit Program:

1. Common Grant Rule (49 CFR Part 18), “Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.” This is a government-wide regulation that applies to all Federal assistance programs.

2. Civil Rights Act of 1964. Unless Indian tribes are specifically exempted from civil rights statutes, compliance with civil rights statutes will be required, including compliance with equity in service. However, Indian tribes will not be required to comply with FTA program-specific guidance for Title VI and Title VII.

3. Section 504 and ADA requirements in 49 CFR parts 27, 37, and 38. These are government-wide requirements that apply to all Federal programs.

4. Drug and Alcohol Testing requirements (49 CFR part 655). FTA will apply this requirement because it addresses a national safety issue for operators of public transportation.

5. National Environmental Policy Act. This is a government-wide requirement that applies to all Federal programs.

6. Charter Service and School Bus transportation requirements in 49 CFR parts 604 and 605. The definition of “public transportation” in 49 U.S.C. 5302 specifically excludes school bus and charter service.

7. National Transit Database (NTD) Reporting requirement. 49 U.S.C. 5335 requires NTD reporting for all direct recipients of section 5311 funds. The Tribal Transit Program is a section 5311 program that will provide funds directly to Indian tribes and this reporting requirement will therefore apply.

8. Bus Testing (49 CFR 665) requirement. To ensure that vehicles acquired under this program will meet adequate safety and operational standards, this requirement will apply.

A comprehensive list and description for all of the statutory and regulatory terms and conditions that will apply to the Tribal Transit Program are set forth in FTA's Master Agreement for the Tribal Transit Program available on FTA's Web site at: http://www.fta.dot.gov/​17861_​18441_​ENG_​HTML.htm. In addition, as part of their application for grant award, tribes that are selected for award will be required to sign the Certifications and Assurances for the fiscal year in which they apply for a grant. The Certifications and Assurances are set forth for informational purposes in Appendix B of this Notice. Notably, FTA has required each applicant to submit certifications and assurances for each fiscal year in which the applicant seeks funding and an award is made. But because less than two months remain before the end of fiscal year 2006, FTA will treat certifications and assurances submitted by an Indian tribe in either fiscal year 2006 or 2007 as having fulfilled Federal certification and assurance requirements for Tribal Transit Program applications submitted and awards made in both fiscal years 2006 and 2007.

IX. Application and Submission Information

This announcement includes all of the information that a tribal government will need to apply for competitive selection. It is available on the FTA Web site at http://www.fta.dot.gov. FTA will announce final selections on the Web site and in the Federal Register. A synopsis of this announcement will be posted on the government-wide electronic grants Web site at http://www.GRANTS.GOV.

X. Guidelines for Preparing Grant Application

FTA is conducting a national solicitation for applications under the Tribal Transit Program. Project selection will be made on a competitive basis. FTA will divide the applications into three categories for the purpose of reviewing and selecting projects to be funded:

A. Start ups—applications for funding of new transit service;

B. Existing transit services—applications for funding of enhancements or expansion of existing transit services; and

C. Planning—applications for funding of planning studies and operational planning

The application should provide information on all items for which Indian tribes are requesting funding in FY 2006, and indicate the specific category in which the tribe is applying.

XI. Application Content

A. Applicant Information

1. Name of federally-recognized tribe and, if appropriate, the specific tribal agency submitting the application.

2. Dun and Bradstreet (D&B) Data Universal Numbering System (DUNS) number if available. (Note: if selected, applicant will be required to provide DUNS number prior to grant award and DUNS number is required for submitting through GRANTS.GOV).

3. Contact information for notification of project selection: Contact name, address, and fax and phone number.

4. Description of public transportation services currently provided by tribe, if any, including areas served.

5. Name of person (s) authorized to apply on behalf of tribe (signed transmittal letter should accompany application if submitted in hard copy or e-mail).

B. Technical, Legal, and Financial Capacity To Implement the Proposed Project

Indian tribes that cannot demonstrate adequate capacity in technical, legal and financial areas will not be considered for funding. Every application must describe the tribe's technical, legal, and financial capacity to implement the proposed project (see attached Appendix B, Section B).

1. Legal Capacity: Provide documentation or other evidence to show that the applicant is a Federally Recognized tribe. Also, who is the authorized representative to execute legal agreements with FTA on behalf of the Indian tribes? If currently operating transit service, does the Indian tribes have appropriate Federal or State operating authority?

2. Technical Capacity: Give examples of the tribe's management of other Federal projects. What resources does the tribal government have to implement a transit project?

3. Financial Capacity: Does the Indian tribes have adequate financial systems in place to receive and manage a Federal grant? Describe the tribal government's financial systems and controls.

C. Project Information

1. Budget: Provide the Federal amount requested for each purpose for which funds are sought and any funding from other sources that will be provided. If applying for a multi year project (not to exceed 4 years), show annual request for each year by budget line item.

2. Project Description: Indicate the category for which funding is requested i.e., start-ups, enhancements or replacements of existing transit services or planning studies or operational planning grants to address project development i.e. development of vehicle and equipment specifications and provide a summary description of the proposed project and how it will be implemented (e.g. number and type of vehicles, service area, schedules, type of services, fixed route or demand responsive, route miles (if fixed route) and size of service area, major origins and destinations, population served, and whether the tribe provide the service directly or contract for services? How will vehicles be maintained?

3. Project Timeline: Include significant milestones such as date of contract for purchase of vehicle(s), actual or expected delivery date of vehicles, and service start up dates.

D. Application Evaluation Criteria

Applications for funding of transit services should address the application criteria based on project to be funded (for more detail see section XII)

1. Criterion 1: Project Planning and Coordination.

2. Criterion 2: Demonstration of Need.

3. Criterion 3: Benefits of Project.

4. Criterion 4: Financial Commitment and Operating Capacity.

Applications for planning grants should address the criteria in section XII, C of this Notice.

E. Submission Dates and Times

Complete applications for Tribal Transit Program must be submitted in one of the three ways: electronically through GRANTS.GOV, in hard copy to Federal Transit Administration, 400 Seventh Street, SW., Room 9311,Washington, DC 20590, Attention: Lorna R. Wilson; or sending by e-mail to [e-mail]. by October 16, 2006 or submitted electronically through the GRANTS.GOV Web site by the same date. FTA will announce grant selections when the competitive selection process is complete.

F. Intergovernmental Review

This program is not subject to Executive Order (EO) 12372, “Intergovernmental Review of Federal Programs.”

G. Funding Restrictions

Only applications from eligible recipients for eligible activities will be considered for funding (see section VI). Due to funding limitations, applicants that are selected for funding may receive less than the amount requested. The application process will allow an tribal government to apply for multiple years of funding not to exceed four years, subject to the availability of annual appropriations. Up to $2 million will be made available for start up or new systems, no more than $25,000 will be awarded per planning grant. The remaining funds will be made available for applications for funding of enhancements or expansion of existing transit service.

H. Other Submission Requirements

Applicants submitting hard copies should submit 3 copies of their project proposal application to the Federal Transit Administration, 400 Seventh Street, SW., Room 9311, Washington, DC 20059, Attention Lorna Wilson, or apply electronically through the government wide electronic grant application portal at www.GRANTS.GOV. Alternatively applications may be submitted as an attachment to mailbox: [e-mail]. If applying by e-mail, fax signature documents to 202-366-7951, Attention: Lorna Wilson.

XII. Application Review Process

A. Competitive Selection Process

FTA will divide applications into three categories. The three evaluation categories are as follows:

• Start-ups—applications for funding of new transit service.
• Existing transit services—applications for funding of enhancements or expansion of existing transit services.
• Planning—applications for funding of transit planning studies and/or operational planning.

Applications will be grouped into their respective category for review and scoring purposes. Applications for planning will be evaluated using a pass/fail system, whereas start-up and existing transit services applications will be scored based on the evaluation criteria to determine rank for funding award determination purposes. An applicant can receive up to 25 points for each evaluation criteria.

FTA intends to award the full amount of funding available in FY 2006 for the Tribal Transit Program. FTA encourages applicants to review the evaluation criteria and all other related application information prior to preparation of application. Applicants may receive technical assistance for application development by contacting their FTA regional Tribal liaison, TTAP center, or the National RTAP office. Contact information for technical assistance can be found in Appendix C.

B. Evaluation Criteria for Start-up and Existing Transit Service Proposals

The use of quantitative data and estimates, whenever possible, improves the proposal's clarity in comparison to all the evaluation criteria.

1. Criterion 1: Project Planning and Coordination (25 points)

In this section, the applicant should describe how the proposed project was developed and demonstrate that there is a sound basis for the project and that it is ready to implement if funded. Information may vary depending on whether the tribe has a formal plan that includes transit.

a. Applicants without a formal plan that includes transit are advised to consider and address the following areas:

i. Provide a detailed project description including the proposed service, vehicle and facility needs and other pertinent characteristics of the proposed service implementation.

ii. Identify existing transportation services available to the tribe and discuss whether the proposed project will provide opportunities to coordinate service with existing transit services including human service agencies, intercity bus services, or other public transit providers.

iii. Discuss the level of support either by the community and/or tribal government for the proposed project.

iv. Describe the implementation schedule for the proposed project including time frame, staffing, procurement, etc.

b. Applicants with a formal transit plan are advised to consider and address the following areas:

i. Describe the planning document and/or the planning process conducted to identify the proposed project.

ii. Describe how the mobility and client access needs of tribal human service agencies were considered in the planning.

iii. Describe what opportunities for public participation were provided in the planning process and how the proposed transit service or existing service has been coordinated with transportation provided for the clients of human service agencies, with intercity bus transportation in the area, or with any other rural public transit providers.

iv. Describe how the proposed service complements rather than duplicates any currently available services.

v. Describe the implementation schedule for the proposed project, including time frame, staffing, procurements, etc.

vi. Describe any other planning or coordination efforts that were not mentioned above.

Based on the information provided as discussed in the above section, proposals will be rated on the following:

i. How sound is the basis for the proposed project?

ii. Is the project ready to implement?

2. Criterion 2: Demonstration of Need (25 points)

In this section, the application should demonstrate the transit needs of the tribe and discuss how the proposed transit improvements will address the identified transit needs of the tribe. Applications may include information such as destinations and services not currently accessible by transit, need for access to jobs or health care, special needs of the elderly and individuals with disabilities, income-based community needs, or other mobility needs.

Based on the information provided the proposals will be rated on the following:

a. What is the demonstrated need for the project?

b. How well does the project reduce the need?

3. Criterion 3: Benefits of Project (25 points)

In this section applications should identify expected project benefits. Possible examples include increased ridership and daily trips, improved service, improved operations and coordination, and economic benefits to the community.

Benefits can be demonstrated by identifying the population of tribal members and non-tribal members in the proposed project service area and estimating the number of daily, one-way trips the transit service will provide and the number of individual riders. There may be many other, less quantifiable, benefits to the tribe and surrounding community from this project. Please document, explain or show the benefits in whatever format is reasonable to present them.

Proposals will be rated on the basis of:

a. Improved transit efficiency or increased ridership;

b. Improved mobility for the tribe;

c. Improved access to important destinations

d. Expected average cost per trip on the proposed service.

e. Other qualitative benefits.

4. Criterion 4: Financial Commitment and Operating Capacity (25 points)

In this section, the application should identify any other funding sources used by the tribe to support existing or proposed transit services, including human service transportation funding, Indian Reservation Roads, or other FTA programs such as Job Access and Reverse Commute (JARC), New Freedom, section 5311, section 5310, or section 5309 bus and bus facilities funding.

For existing services, the application should show how Tribal Transit Program funding will supplement (not duplicate or replace) current funding sources. If the transit system was previously funded under section 5311 through the State's apportionment, describe how requested Tribal Transit Program funding will expand available services.

Describe any other resources the tribe will contribute to the project, including in-kind contributions, commitments of support from local businesses, donations of land or equipment, and human resources. To what extent does the new project or funding for existing service leverage other funding?

The tribe should show its ability to manage programs by demonstrating the existing programs it administers, in any area of expertise such as human services.

Points will be awarded based on the degree to which:

a. The project deploys new services or complements existing services.

b. Tribal Transit Program funding does not replace existing funding.

c. Tribe has or will provide non-financial support to project.

d. Tribe has demonstrated the ability to provide other services or manage other programs.

e. Project funds are used in coordination with other services for efficient utilization of funds.

C. Evaluation Criteria for Planning Grants Proposals

Criterion: Need for Study

For planning grants the applications should describe in no more than three pages the need for and a general scope of the proposed study.

Based on the information provided, proposals will be rated pass/fail based on the following:

a. Is the tribe committed to planning for transit?

b. Is the scope of the proposed study for tribal transit?

D. Review and Selection Process

Each application will be screened by a panel of members including FTA headquarters regional staff, and representatives of the Indian Reservations Roads Program. Incomplete or non-responsive applications will be disqualified. FTA will make an effort to award a grant to every qualified applicant.

XIII. Award Administration Information

FTA will award grants directly to Federally recognized Indian tribes for the projects selected through this competition. Following publication of the selected recipients, projects, and amounts, FTA regional staff will assist the successful applicants to prepare an electronic application for grant award. At that time, the tribe will be required to sign the Certification and Assurances contained in Appendix B. The Master Agreement is available on FTA's Web site at http://www.fta.dot.gov/​17861_​18441_​ENG_​HTML.htm.

Applicants that are selected for grant awards under the Tribal Transit Program will be required to formally designate, by resolution or other formal tribal action, an authorized representative who will have the authority to execute grant agreements on behalf of the Indian tribes with FTA and who will also have the authority on behalf of the Indian tribes to execute FTA's Annual List of Certifications and Assurances.

FTA will notify all applicants, both those selected for funding and those not selected, when the competitive selection process is complete. Projects selected for funding will be published in a Federal Register Notice.

XIV. Other

A. Technical Assistance

Technical assistance regarding these requirements is available from each FTA regional office. The regional offices will contact those applicants selected for funding regarding procedures for making the required certifications and assurances to FTA before grants are made and will provide assistance in preparing the documentation necessary for grant award.

B. Certifications and Assurances

Applicants that are selected and formally notified of FTA's intention to award a grant under the Tribal Transit Program will be required to complete and execute FTA's Annual List of Certification and Assurances in accordance with the procedures described in this Notice of Funding Availability. The Annual List of Certifications and Assurances is attached in Appendix B for informational purposes only.

C. Reporting

49 U.S.C. 5335 National Transit Database requires NTD reporting for all direct recipients of section 5311 funds including tribes. Specific procedures and data requirements for tribes have not yet been developed and will be provided to grantees at a later date. Annual progress reports and financial status reports will be required of all grantees.

D. Agency Contact(s)

Contact the appropriate FTA regional Tribal Liaison (Appendix A) for application-specific information and issues for general program information, contact Lorna R. Wilson, Office of Transit Programs, [phone], e-mail: [e-mail]. A TDD is available at 1-800-877-8339 (TDD/FIRS).

Issued in Washington, DC, this 8th day of August 2006.

Sandra K. Bushue,

Deputy Administrator.

Appendix A—FTA Regional Offices and Tribal Transit Liaisons

Region I—Massachusetts, Rhode Island, Connecticut, New Hampshire, Vermont and Maine, Richard H. Doyle, FTA Regional Administrator, Volpe National Transportation Systems Center, Kendall Square, 55 Broadway, Suite 920, Cambridge, MA 02142-1093, Phone: [phone], Fax: [phone], Regional Tribal Liaison: Judi Molloy.

Region II—New York, New Jersey, Virgin Islands, Letitia Thompson, FTA Regional Administrator, One Bowling Green, Room 429, New York, NY 10004-1415, Phone: [phone], Fax: [phone], Regional Tribal Liaison: Rebecca Reyes-Alicea.

Region III—Pennsylvania, Maryland, Virginia, West Virginia, Delaware, Washington, DC, Susan Borinsky, FTA Regional Administrator, 1760 Market Street, Suite 500, Philadelphia, PA 19103-4124, Phone: [phone], Fax: [phone].

Region IV—Georgia, North Carolina, South Carolina, Florida, Mississippi, Tennessee, Kentucky, Alabama, Puerto Rico, Yvette G. Taylor, FTA Regional Administrator, 61 Forsyth Street, S.W., Suite 17T50, Atlanta, GA 30303, Phone: [phone], Fax: [phone], Regional Tribal Liaisons: Jamie Pfister and James Garland.

Region V—Illinois, Indiana, Ohio, Wisconsin, Minnesota, Michigan, Marisol R. Simon, FTA Regional Administrator, 200 West Adams Street, Suite 320, Chicago, IL 60606-5232, Phone: [phone], Fax: [phone], Regional Tribal Liaisons: Victor Austin and William Wheeler.

Region VI—Texas, New Mexico, Louisiana, Arkansas, Oklahoma, Robert Patrick, FTA Regional Administrator, 819 Taylor Street, Room 8A36, Ft. Worth, TX 76102, Phone: [phone], Fax: [phone], Regional Tribal Liaison: Lynn Hayes.

Region VII—Iowa, Nebraska, Kansas, Missouri, Mokhtee Ahmad, FTA Regional Administrator, 901 Locust Street, Suite 404, Kansas City, MO 64106, Phone: [phone], Fax: [phone], Regional Tribal Liaisons: Joni Roeseler and Cathy Monroe.

Region VIII—Colorado, North Dakota, South Dakota, Montana, Wyoming, Utah, Lee Waddleton, FTA Regional Administrator, 12300 West Dakota Avenue, Suite 310, Lakewood, CO 80228-2583, Phone: [phone], Fax: [phone], Regional Tribal Liaisons: Jennifer Stewart and David Beckhouse.

Region IX—California, Arizona, Nevada, Hawaii, American Samoa, Guam, Leslie Rogers, FTA Regional Administrator, 201 Mission Street, Suite 1650, San Francisco, CA 94105-1831, Phone: [phone], Fax: [phone], Regional Tribal Liaison: Donna Turchie.

Region X—Washington, Oregon, Idaho, Alaska, Richard Krochalis, FTA Regional Administrator, Jackson Federal Building, 915 Second Avenue, Suite 3142, Seattle, WA 98174-1002, Phone: [phone], Fax: [phone], Regional Tribal Liaisons: Bill Ramos and Annette Clothier.

Appendix B—Federal Fiscal Years 2006 and 2007 Certifications and Assurances for the Federal Transit Administration Tribal Transit Program

In accordance with 49 U.S.C. 5323(n), the following certifications and assurances have been compiled for the Federal Transit Administration (FTA) Public Transportation on Indian Reservation Program (Tribal Transit Program) authorized by 49 U.S.C. 5311(c)(1). It is customary for FTA to require each applicant to submit certifications and assurances for each fiscal year in which the applicant seeks funding. But because less than two months remain before the end of Federal Fiscal Year 2006, FTA will treat certifications and assurances submitted by an Indian tribe in either Federal Fiscal Year 2006 or 2007 applicable to applications for Tribal Transit Program assistance submitted and awards made in Federal Fiscal Years 2006 and 2007.

The Indian tribe, as an eligible applicant for Tribal Transit Program assistance, understands and agrees that these certifications and assurances are pre-award requirements and do not encompass all statutory and regulatory requirements that may apply to the Indian tribe or its Project. A comprehensive list of those requirements will be contained in the Grant Agreement including the Master Agreement accompanying an award under the Tribal Transit Program.

FTA and the Indian tribe also understand and agree that not every certification and assurance will apply to every Project for which FTA provides Federal financial assistance through the Tribal Transit Program. The type of Project will determine which requirements apply. For example FTA believes that the following requirements within the listed certifications and assurances will have limited, if any, impact:

1. Many provisions required by the Office of Management and Budget (OMB) set forth in Certification F involve requirements that in most cases will not be invoked, such as:

a. Title III of the Uniform Relocation and Real Property Acquisition Policies Act, as amended, and implementing U.S. DOT regulations will apply only when the Indian tribe acquires real property with FTA assistance.

b. Title II of the Uniform Relocation and Real Property Acquisition Policies Act, as amended, and implementing U.S. DOT regulations will apply only when the Indian tribe's project requires relocation of a person or business; and the Lead-Based Paint Poisoning Prevention Act is invoked only in connection with residential construction, not likely to take place under the Tribal Transit Program

c. The Flood Disaster Protection Act applies to projects in flood hazard areas.

d. Only for construction projects will the Davis-Bacon Act, Seismic Safety regulations, and OMB engineering supervision requirements apply.

e. Many environmental protection requirements are limited to the specific problem addressed by the statute. If, for example, the project will not affect endangered species, the requirements of the Endangered Species Act will not be invoked.

2. With respect to Certification H, “Bus Testing,” only if the Indian tribe acquires the first bus of a new bus model or the first bus of a new major configuration of a new bus will FTA's Bus Testing requirements be invoked.

Except to the extent that FTA determines otherwise in writing, each Indian tribe that applies for Tribal Transit Program assistance, however, must provide all certifications and assurance set forth below. FTA may not award any Federal assistance under the Tribal Transit Program until the Indian tribe provides these certifications and assurances.

A. Assurance of Authority of the Indian Tribe and Its Representative

The authorized representative of the Indian tribe and the attorney who sign these certifications, assurances, and agreements affirm that both the Indian tribe and its authorized representative have adequate authority under Federal and Indian tribal law, regulations, or by-laws to:

(1) Execute and file the application for Federal assistance on behalf of the Indian tribe;

(2) Execute and file the required certifications, assurances, and agreements on behalf of the Indian tribe binding the Indian tribe; and

(3) Execute grant agreements with FTA on behalf of the Indian tribe.

B. Standard Assurances

The Indian tribe assures that it will comply with all applicable Federal laws and regulations in carrying out any project supported by an FTA grant. The Indian tribe agrees that it is under a continuing obligation to comply with the terms and conditions of the Grant Agreement issued for its project with FTA. The Indian tribe recognizes that Federal laws and regulations may be modified from time to time and those modifications may affect project implementation. The Indian tribe understands that Presidential executive orders and Federal directives, including Federal policies and program guidance may be issued concerning matters affecting the Indian tribe or its project. The Indian tribe agrees that the most recent Federal laws, regulations, and directives will apply to the project, unless FTA issues a written determination otherwise.

C. The Indian Tribe's Capacity To Comply With Relevant Section 5311 Requirements

The Indian tribe assures that:

(1) It has or will have the necessary legal, financial, and managerial capability to apply for, receive, and disburse Federal assistance authorized for 49 U.S.C. 5311; and to carry out each project, including the safety and security aspects of that project;

(2) It has or will have satisfactory continuing control over the use of project equipment and facilities;

(3) The project equipment and facilities will be adequately maintained; and

(4) Its project will achieve maximum feasible coordination with transportation service assisted by other Federal sources.

D. Nondiscrimination Assurance

As required by Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, and by U.S. DOT regulations, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act,” 49 CFR part 21 at 21.7, the Indian tribe assures that it will comply with all requirements imposed by or issued pursuant to 42 U.S.C. 2000d, and 49 CFR part 21, so that no person in the United States, on the basis of race, color, or national origin, will be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination in any program or activity (particularly in the level and quality of transportation services and transportation-related benefits) for which the Indian tribe receives Federal assistance awarded by the U.S. DOT or FTA.

Specifically, during the period in which Federal assistance is extended to the project, or project property is used for a purpose for which the Federal assistance is extended or for another purpose involving the provision of similar services or benefits, or as long as the Indian tribe retains ownership or possession of the project property, whichever is longer, the Indian tribe assures that:

(1) Each project will be conducted, property acquisitions will be undertaken, and project facilities will be operated in accordance with all applicable requirements imposed by or issued pursuant to 42 U.S.C. 2000d, and 49 CFR part 21, and understands that this assurance extends to its entire facility and to facilities operated in connection with the project.

(2) It will promptly take the necessary actions to effectuate this assurance, including notifying the public that complaints of discrimination in the provision of transportation-related services or benefits may be filed with U.S. DOT or FTA. Upon request by U.S. DOT or FTA, the Indian tribe assures that it will submit the required information pertaining to its compliance with these provisions.

(3) It will include in each subagreement, property transfer agreement, third party contract, third party subcontract, or participation agreement adequate provisions to extend the requirements imposed by or issued pursuant to 42 U.S.C. 2000d and 49 CFR part 21 to other parties involved therein including any subrecipient, transferee, third party contractor, third party subcontractor at any level, successor in interest, or any other participant in the project.

(4) Should it transfer real property, structures, or improvements financed with Federal assistance provided by FTA to another party, any deeds and instruments recording the transfer of that property shall contain a covenant running with the land assuring nondiscrimination for the period during which the property is used for a purpose for which the Federal assistance is extended or for another purpose involving the provision of similar services or benefits.

(5) The United States has a right to seek judicial enforcement with regard to any matter arising under the Act, regulations, and this assurance.

(6) It will make any changes in its Title VI implementing procedures as U.S. DOT or FTA may request to achieve compliance with the requirements imposed by or issued pursuant to 42 U.S.C. 2000d and 49 CFR part 21.

E. Assurance of Nondiscrimination on the Basis of Disability

As required by U.S. DOT regulations, “Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance,” at 49 CFR 27.9, the Indian tribe assures that, as a condition to the approval or extension of any Federal assistance awarded by FTA to construct any facility, obtain any rolling stock or other equipment, undertake studies, conduct research, or to participate in or obtain any benefit from any program administered by FTA, no otherwise qualified person with a disability shall be, solely by reason of that disability, excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in any program or activity receiving or benefiting from Federal assistance administered by the FTA or any entity within U.S. DOT. The Indian tribe assures that project implementation and operations so assisted will comply with all applicable requirements of U.S. DOT regulations implementing the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, et seq., and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. 12101 et seq., and implementing U.S. DOT regulations at 49 CFR parts 27, 37, and 38, and any other applicable Federal laws that may be enacted or Federal regulations that may be promulgated.

F. U.S. Office of Management and Budget (OMB) Assurances

Consistent with OMB assurances set forth in SF-424B and SF-424D, the Indian tribe assures that, with respect to itself and its project, the Indian tribe:

(1) Has the legal authority to apply for Federal assistance and the institutional, managerial, and financial capability to ensure proper planning, management, and completion of the project described in its application;

(2) Will give FTA, the Comptroller General of the United States, and, if appropriate, the state, through any authorized representative, access to and the right to examine all records, books, papers, or documents related to the award; and will establish a proper accounting system in accordance with generally accepted accounting standards or agency directives;

(3) Will establish safeguards to prohibit employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest or personal gain;

(4) Will initiate and complete the work within the applicable project time periods following receipt of FTA approval;

(5) Will comply with all applicable Federal statutes relating to nondiscrimination including, but not limited to:

(a) Title VI of the Civil Rights Act, 42 U.S.C. 2000d, which prohibits discrimination on the basis of race, color, or national origin;

(b) Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. 1681 through 1683, and 1685 through 1687, and U.S. DOT regulations, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” 49 CFR part 25, which prohibit discrimination on the basis of sex;

(c) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, which prohibits discrimination on the basis of disability;

(d) The Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101 through 6107, which prohibits discrimination on the basis of age;

(e) The Drug Abuse Office and Treatment Act of 1972, Pub. L. 92-255, March 21, 1972, and amendments thereto, 21 U.S.C. 1174 et seq. relating to nondiscrimination on the basis of drug abuse;

(f) The Comprehensive Alcohol Abuse and Alcoholism Prevention Act of 1970, Pub. L. 91-616, Dec. 31, 1970, and amendments thereto, 42 U.S.C. 4581 et seq. relating to nondiscrimination on the basis of alcohol abuse or alcoholism;

(g) The Public Health Service Act of 1912, as amended, 42 U.S.C. 290dd-3 and 290ee-3, related to confidentiality of alcohol and drug abuse patient records;

(h) Title VIII of the Civil Rights Act, 42 U.S.C. 3601 et seq., relating to nondiscrimination in the sale, rental, or financing of housing; and

(i) Any other nondiscrimination statute(s) that may apply to the project;

(6) To the extent applicable, will comply with, or has complied with, the requirements of Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, (Uniform Relocation Act) 42 U.S.C. 4601 et seq., which, among other things, provide for fair and equitable treatment of persons displaced or persons whose property is acquired as a result of Federal or federally assisted programs. These requirements apply to all interests in real property acquired for project purposes and displacement caused by the project regardless of Federal participation in any purchase. As required by sections 210 and 305 of the Uniform Relocation Act, 42 U.S.C. 4630 and 4655, and by U.S. DOT regulations, “Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs,” 49 CFR 24.4, the Indian tribe assures that it has the requisite authority under its applicable tribal government law to comply with the requirements of the Uniform Relocation Act, 42 U.S.C. 4601 et seq., and U.S. DOT regulations, “Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs,” 49 CFR part 24, and will comply with that Act or has complied with that Act and those implementing regulations, including but not limited to the following:

(a) The Indian tribe will adequately inform each affected person of the benefits, policies, and procedures provided for in 49 CFR part 24;

(b) The Indian tribe will provide fair and reasonable relocation payments and assistance as required by 42 U.S.C. 4622, 4623, and 4624; 49 CFR part 24; and any applicable FTA procedures, to or for families, individuals, partnerships, corporations, or associations displaced as a result of any project financed with FTA assistance;

(c) The Indian tribe will provide relocation assistance programs offering the services described in 42 U.S.C. 4625 to such displaced families, individuals, partnerships, corporations, or associations in the manner provided in 49 CFR part 24;

(d) Within a reasonable time before displacement, the Indian tribe will make available comparable replacement dwellings to displaced families and individuals as required by 42 U.S.C. 4625(c)(3);

(e) The Indian tribe will carry out the relocation process in such manner as to provide displaced persons with uniform and consistent services, and will make available replacement housing in the same range of choices with respect to such housing to all displaced persons regardless of race, color, religion, or national origin;

(f) In acquiring real property, the Indian tribe will be guided to the greatest extent practicable under state law, by the real property acquisition policies of 42 U.S.C. 4651 and 4652;

(g) The Indian tribe will pay or reimburse property owners for necessary expenses as specified in 42 U.S.C. 4653 and 4654, with the understanding that FTA will provide Federal financial assistance for the Indian tribe's eligible costs of providing payments for those expenses, as required by 42 U.S.C. 4631;

(h) The Indian tribe will execute such amendments to third party contracts and subagreements financed with FTA assistance and execute, furnish, and be bound by such additional documents as FTA may determine necessary to effectuate or implement the assurances provided herein; and

(i) The Indian tribe agrees to make these assurances part of or incorporate them by reference into any third party contract or subagreement, or any amendments thereto, relating to any project financed by FTA involving relocation or land acquisition and provide in any affected document that these relocation and land acquisition provisions shall supersede any conflicting provisions;

(7) To the extent applicable, will comply with the Davis-Bacon Act, as amended, 40 U.S.C. 3141 et seq., the Copeland “Anti-Kickback” Act, as amended, 18 U.S.C. 874, and the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. 3701 et seq., regarding labor standards for federally assisted projects;

(8) To the extent applicable, will comply with the flood insurance purchase requirements of section 102(a) of the Flood Disaster Protection Act of 1973, as amended, 42 U.S.C. 4012a(a), requiring the Indian tribe and its subrecipients in a special flood hazard area to participate in the program and purchase flood insurance if the total cost of insurable construction and acquisition is $10,000 or more;

(9) To the extent applicable, will comply with the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. 4831(b), which prohibits the use of lead-based paint in the construction or rehabilitation of residence structures;

(10) To the extent applicable, will not dispose of, modify the use of, or change the terms of the real property title or other interest in the site and facilities on which a construction project supported with FTA assistance takes place without permission and instructions from FTA;

(11) To the extent required by FTA, will record the Federal interest in the title of real property, and will include a covenant in the title of real property acquired in whole or in part with Federal assistance funds to assure nondiscrimination during the useful life of the project;

(12) To the extent applicable, will comply with FTA provisions concerning the drafting, review, and approval of construction plans and specifications of any construction project supported with FTA assistance. As required by U.S. DOT regulations, “Seismic Safety,” 49 CFR 41.117(d), before accepting delivery of any building financed with FTA assistance, it will obtain a certificate of compliance with the seismic design and construction requirements of 49 CFR part 41;

(13) To the extent applicable, will provide and maintain competent and adequate engineering supervision at the construction site of any project supported with FTA assistance to ensure that the complete work conforms with the approved plans and specifications, and will furnish progress reports and such other information as may be required by FTA or the state;

(14) To the extent applicable, will comply with any applicable environmental standards that may be prescribed to implement the following Federal laws and executive orders:

(a) Institution of environmental quality control measures under the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321 through 4335 and Executive Order No. 11514, as amended, 42 U.S.C. 4321 note;

(b) Notification of violating facilities pursuant to Executive Order No. 11738, 42 U.S.C. 7606 note;

(c) Protection of wetlands pursuant to Executive Order No. 11990, 42 U.S.C. 4321 note;

(d) Evaluation of flood hazards in floodplains in accordance with Executive Order No. 11988, 42 U.S.C. 4321 note;

(e) Assurance of project consistency with the approved state management program developed pursuant to the requirements of the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451 through 1465;

(f) Conformity of Federal actions to State (Clean Air) Implementation Plans under section 176(c) of the Clean Air Act of 1955, as amended, 42 U.S.C. 7401 through 7671q;

(g) Protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. 300f through 300j-6;

(h) Protection of endangered species under the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 through 1544; and

(i) Environmental protections for Federal transportation programs, including, but not limited to, protections for parks, recreation areas, or wildlife or waterfowl refuges of national, state, local, or tribal government significance or any land from a historic site of national, state, local, or tribal government significance to be used in a transportation project as required by 49 U.S.C. 303(b) and 303(c);

(j) Protection of the components of the national wild and scenic rivers systems, as required under the Wild and Scenic Rivers Act of 1968, as amended, 16 U.S.C. 1271 through 1287; and

(k) Provision of assistance to FTA in complying with section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470f; with the Archaeological and Historic Preservation Act of 1974, as amended, 16 U.S.C. 469 through 469c ; and with Executive Order No. 11593 (identification and protection of historic properties), 16 U.S.C. 470 note;

(15) Because a tribal government is not covered by the Hatch Act, the Indian tribe is not required to comply with the requirements of the Hatch Act, 5 U.S.C. 1501 through 1508 and 7324 through 7326, which limit the political activities of state and local agencies and their officers and employees whose primary employment activities are financed in whole or part with Federal funds including a Federal grant agreement except, in accordance with 49 U.S.C. 5307(k)(2) and 23 U.S.C. 142(g), the Hatch Act does not apply to a nonsupervisory employee of a public transportation system (or of any other agency or entity performing related functions) receiving FTA assistance to whom that Act does not otherwise apply;

(16) To the extent applicable, will comply with the National Research Act, Pub. L. 93-348, July 12, 1974, as amended, 42 U.S.C. 289 et seq., and U.S. DOT regulations, “Protection of Human Subjects,” 49 CFR part 11, regarding the protection of human subjects involved in research, development, and related activities supported by Federal assistance;

(17) To the extent applicable, will comply with the Laboratory Animal Welfare Act of 1966, as amended, 7 U.S.C. 2131 et seq., and U.S. Department of Agriculture regulations, “Animal Welfare,” 9 CFR subchapter A, parts 1, 2, 3, and 4, regarding the care, handling, and treatment of warm blooded animals held or used for research, teaching, or other activities supported by Federal assistance;

(18) Will have performed the financial and compliance audits as required by the Single Audit Act Amendments of 1996, 31 U.S.C. 7501 et seq., OMB Circular A-133, “Audits of States, Local Governments, and Non-Profit Organizations,” Revised, and the most recent applicable OMB A-133 Compliance Supplement provisions for the U.S. DOT; and

(19) To the extent applicable, will comply with all applicable provisions of all other Federal laws, regulations, and directives governing the project, except to the extent that FTA has expressly approved otherwise in writing.

G. Procurement Compliance

In accordance with 49 CFR 18.36(g)(3)(ii), the Indian tribe certifies that its procurement system will comply with the requirements of 49 CFR 18.36, or will inform FTA promptly that its procurement system does not comply with 49 CFR 18.36.

H. Bus Testing

As required by 49 U.S.C. 5318 and FTA regulations, “Bus Testing,” at 49 CFR 665.7, the Indian tribe certifies that, before expending any Federal assistance to acquire the first bus of any new bus model or any bus model with a new major change in configuration or components, or before authorizing final acceptance of that bus (as described in 49 CFR part 665), the bus model:

A. Will have been tested at FTA's bus testing facility; and

B. Will have received a copy of the test report prepared on the bus model.

I. Charter Service Agreement

(1) As required by 49 U.S.C. 5323(d) and (g) and FTA regulations, “Charter Service,” at 49 CFR 604.7, the Indian tribe agrees that it and each subrecipient and third party contractor at any tier will:

(a) Provide charter service that uses equipment or facilities acquired with Federal assistance authorized under 49 U.S.C. chapter 53 (except 49 U.S.C. 5310 or 5317), or under 23 U.S.C. 133 or 142 for transportation projects, only to the extent that there are no private charter service operators willing and able to provide the charter service that it or its subrecipients or third party contractors at any tier desire to provide, unless one or more of the exceptions in 49 CFR 604.9 applies; and

(b) Comply with the requirements of 49 CFR part 604 before providing any charter service using equipment or facilities acquired with Federal assistance authorized under 49 U.S.C. chapter 53 (except 49 U.S.C. 5310 or 5317), or under 23 U.S.C. 133 or 142 for transportation projects.

(2) The Indian tribe understands that:

(a) The requirements of 49 CFR part 604 will apply to any charter service it or its subrecipients or third party contractors provide,

(b) The definitions of 49 CFR part 604 will apply to this Charter Service Agreement, and

(c) A violation of this Charter Service Agreement may require corrective measures and imposition of penalties, including debarment from the receipt of further Federal assistance for transportation.

J. School Transportation Agreement

(1) As required by 49 U.S.C. 5323(f) and (g) and FTA regulations at 49 CFR 605.14, the Indian tribe agrees that it and each subrecipient or third party contractor at any tier will:

(a) Engage in school transportation operations in competition with private school transportation operators only to the extent permitted by 49 U.S.C. 5323(f) and (g), and Federal regulations; and

(b) Comply with the requirements of 49 CFR part 605 before providing any school transportation using equipment or facilities acquired with Federal assistance authorized under 49 U.S.C. chapter 53 or under 23 U.S.C. 133 or 142 for transportation projects.

(2) The Indian tribe understands that:

(a) The requirements of 49 CFR part 605 will apply to any school transportation service it or its subrecipients or third party contractors provide,

(b) The definitions of 49 CFR part 605 will apply to this School Transportation Agreement, and

(c) A violation of this School Transportation Agreement may require corrective measures and imposition of penalties, including debarment from the receipt of further Federal assistance for transportation.

K. Demand Responsive Service

As required by U.S. DOT regulations, “Transportation Services for Individuals with Disabilities (ADA),” at 49 CFR 37.77(d), the Indian tribe certifies that its demand responsive service offered to individuals with disabilities, including individuals who use wheelchairs, is equivalent to the level and quality of service offered to individuals without disabilities. When the Indian tribe's service is viewed in its entirety, the Indian tribe's service for individuals with disabilities is provided in the most integrated setting feasible and is equivalent with respect to: (1) Response time, (2) fares, (3) geographic service area, (4) hours and days of service, (5) restrictions on trip purpose, (6) availability of information and reservation capability, and (7) constraints on capacity or service availability.

L. Alcohol Misuse and Prohibited Drug Use

As required by FTA regulations, “Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations,” at 49 CFR part 655, subpart I, the Indian tribe certifies that it has established and implemented an alcohol misuse and anti-drug program, and has complied with or will comply with all applicable requirements of FTA regulations, “Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations,” 49 CFR part 655.

M. National Intelligent Transportation Systems Architecture and Standards

If the Indian tribe's project involves the acquisition of an Intelligent Transportation System (ITS), defined as technology or system of technologies that provides or significantly contribute to the provision of one or more ITS user services as defined in the National ITS Architecture, the Indian tribe will use its best efforts to ensure that any Intelligent Transportation System solutions used in its Project do not preclude interface with other Intelligent Transportation Systems in the Region. (See FTA Notice, “FTA National ITS Architecture Policy on Transit Projects” 66 FR 1455 et seq. January 8, 2001 and other FTA Program Guidance that may be issued.)

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Appendix C—Technical Assistance Contacts

Tribal Technical Assistance Program (TTAP) Centers

TTAP-Alaska

Alaska Tribal Technical Assistance Program, NW & AK TTAP, 329 Harbor Dr. #208, Sitka, AK 99835, Contact: Dan Moreno, Telephone: [phone], Fax: [phone], E-mail: [e-mail], Web: www.ewu.edu/​TTAP.

TTAP-California

TTAP-California-Nevada, The National Center for American Indian Enterprise Development, 11138 Valley Mall, Suite 200, El Monte, CA 91731, Contact: Lee Bigwater, Telephone: [phone], Fax: [phone].

TTAP-Colorado

Tribal Technical Assistance Program at Colorado State University, Rockwell Hall, Rm. 321, Colorado State University, Fort Collins, CO 80523-1276, Contact: Ronald Hall, Telephone: [phone], Fax: [phone], E-mail: [e-mail], Web: http://ttap.colostate.edu/​.

TTAP-Michigan

Tribal Technical Assistance Program, 301-E Dillman Hall, Michigan Technological University, 1400 Townsend Dr., Houghton, MI 49931-1295, Contact: Bernard D. Alkire, Telephone: [phone], Fax: [phone], E-mail: [e-mail], Web: http://www.ttap.mtu.edu.

TTAP-North Dakota

Northern Plains Tribal Technical Assistance Program, United Tribes Technical College, 3315 University Drive, Bismarck, ND 58504, Contact: Dennis Trusty, Telephone: [phone] ext. 1262, Fax: [phone], E-mail: [e-mail] or [e-mail], Web: http://www.uttc.edu/​organizations/​ttap/​ttap.asp.

TTAP-NW

Northwest Tribal Technical Assistance Program, Eastern Washington University Department of Urban Planning, Public & Health Administration, 216 Isle Hall, Cheney, WA 99004, Contact: David Frey, Telephone: [phone], Fax: [phone], E-mail: [e-mail], Web: www.ewu.edu/​TTAP.

TTAP-Oklahoma

Tribal Technical Assistance Program at Oklahoma State University, Oklahoma State University, 5202 N. Richmond Hills Road, Stillwater, OK 74078-0001, Contact: James Self, Telephone: [phone], Fax: [phone], E-mail: [e-mail], Web: http://ttap.okstate.edu.

National RTAP (National Rural Transit Assistance Program), E-mail: [e-mail], http://www.nationalrtap.org/​,, Dave Barr 202-218-6722, Community Transportation Association of America), The Resource Center—1800-891-0590, http://www.ctaa.org/​.