Fiscal Year 2013 Public Transportation on Indian Reservations Program |
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Peter M. Rogoff
Federal Transit Administration
November 9, 2012
[Federal Register Volume 77, Number 218 (Friday, November 9, 2012)]
[Notices]
[Pages 67439-67442]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27458]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket Number FTA-2012-0054]
Fiscal Year 2013 Public Transportation on Indian Reservations
Program
AGENCY: Federal Transit Administration, DOT.
ACTION: Request for comment; Announcement of public meetings.
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SUMMARY: This notice announces changes in the Public Transportation on
Indian Reservations program (Tribal Transit Program) in accordance with
the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L.
112-141), which authorizes the program for Federal fiscal years (FY)
2013 and 2014. MAP-21 was signed into law by President Barack Obama on
July 6, 2012 and became effective on October 1, 2012. This notice
responds to the new legislation under the Tribal Transit Program by:
(1) Introducing FTA's consultation process and schedule for
implementing changes due to MAP-21; (2) describing and seeking comment
on the methodology for the formula allocation and the assumptions made
regarding who is eligible for the formula program; (3) seeking comment
on the terms and conditions for the formula and discretionary
components of the program; and (4) seeking comments on how the
discretionary program resources should be allocated.
DATES: Comments must be submitted by January 8, 2013. Late-filed
comments will be considered to the extent practicable.
Outreach and Public Meeting: FTA will provide outreach in
conjunction with the National Tribal Transportation Conference,
sponsored by the Northwest Tribal Transit Assistance Program (TTAP).
The meeting will be held on November 14-15, 2012 in Phoenix, Arizona at
the Pointe Hilton Tapatio Cliffs Resort, 11111 North 7th Street. The
first session is scheduled from 1:30 p.m. to 5:00 p.m. on November 14th
and the second session on November 15th from 8:00 a.m. to 12:00 p.m.
All participants must pre-register for the meeting and may register
online at http://ttap.colostate.edu. Additionally, FTA will hold a
public meeting in Washington, DC on December 10, 2012, at the U.S.
Department of Transportation, 1200 New Jersey Avenue SE., Washington,
DC 20590. Please send an email to [Eacute]lan Flippin at
Elan.Flippin@dot.gov with your contact information if you plan to
attend the December meeting in Washington, DC FTA encourages public
participation at these meetings. However, comments must be submitted in
writing directly to the official docket per the instructions found in
the ADDRESSES section of this notice by January 7, 2013.
Details and updates regarding these meetings will be posted on the
FTA Web site www.fta.dot.gov, Tribal Technical Assistance (TTAP)
Program (www.ltap.org), and National RTAP Program www.Nationalrta.org.
FOR FURTHER INFORMATION CONTACT: Lorna Wilson, Federal Transit
Administration, 1200 New Jersey Ave. SE., E46-305, Washington, DC
20590, phone: (202) 366-0893, fax: (202) 366-3809, or email,
Lorna.Wilson@dot.gov or [Eacute]lan Flippin at Elan.Flippin@dot.gov.
ADDRESSES: Comments should be submitted by one of the following
methods, identifying your submission by docket number FTA-2012-0054.
(1) Federal eRulemaking Portal: Go to http://www.regulations.gov
and follow the online instructions for submitting comments.
(2) Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Docket Operations, M-30
West Building Ground Floor, Room W12-140, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
(3) Hand Delivery or Courier: Docket Management Facility: U.S.
Department of Transportation, 1200 New Jersey Avenue SE., Docket
Operations, M-30 West Building Ground Floor, Room W12-140, West
Building, Ground Floor, Room W12-140, Washington, DC 20590-0001 between
9 a.m. and 5 p.m. Eastern time, Monday through Friday, except Federal
holidays.
(4) Fax: 202-493-2251.
You must include the agency name (Federal Transit Administration)
and docket number (FTA-2012-0054) for this notice at the beginning of
your comments. Submit two copies of your comments if you submit them by
mail. For confirmation that FTA received your comments, include a self-
addressed stamped postcard. Note that all comments received will be
posted without change to www.regulations.gov including any personal
information provided and will be available to internet users. You may
review DOT's complete Privacy Act Statement published in the Federal
Register on April 11, 2000 (65 FR 19477).
For access to the docket to read background documents and comments
received, go to www.regulations.gov at any time or to the U.S.
Department of Transportation, 1200 New Jersey Ave. SE., Docket
Operations, M-30, West Building Ground Floor, Room W12-140, Washington,
DC 20590 between 9:00 a.m. and 5:00 p.m., Monday through Friday, except
Federal holidays.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview
II. Questions on Proposed Tribal Transit Formula Program Allocations
III. Questions on Proposed Tribal Transit Discretionary Program
IV. Questions on Proposed Cost Sharing, Matching, and Indirect Costs
V. Proposed Terms and Conditions of the Tribal Transit Program
I. Overview
Section 3013 of Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), (Pub. L.
109-59 (August 10, 2005)) established the Public Transportation on
Indian Reservations Program (Tribal Transit Program). The program
authorized direct grants ``under such terms and conditions as may be
established by the Secretary'' to Indian tribes for any purpose
eligible under FTA's Grants for Rural Areas Formula Program, 49 U.S.C.
5311 (Section 5311 program). The Tribal Transit Program was implemented
by FTA in consultation with Indian tribes consistent with the
principles and policies set forth in Presidential Executive Order
13175, ``Consultation and Coordination with Indian Tribal
Governments,'' 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.'' Under SAFETEA-LU, the Tribal
Transit Program was a discretionary program, and funded for a total of
$42 million over the life of SAFETEA-LU and its extensions, with
approximately $15 million available in each of the last four years.
This notice describes changes to the Tribal Transit Program as a
result of the Moving Ahead for Progress in the 21st Century Act (MAP-
21). MAP-21 modifies the Tribal Transit Program and provides $25
million for formula allocation and $5 million for discretionary
allocation in each of fiscal years 2013 and 2014. Through this notice,
FTA seeks comment on the data assumptions and methods FTA will use to
allocate these formula funds. FTA will continue to allocate the $5
million
[[Page 67440]]
in discretionary funding competitively. This notice also seeks comment
on how these funds will be competed. For both the formula and
discretionary program, FTA seeks comments on the terms and conditions.
II. Questions on Proposed Tribal Transit Formula Program Allocations
The Tribal Transit Formula Program distributes $25 million to
eligible Indian tribes providing public transportation on tribal lands.
Since FY 2006, the National Transit Database (NTD) reporting
requirement has applied to the Tribal Transit Program. FTA proposes to
limit eligible recipients to those registered in the NTD. Tribes that
operate public transportation services, but which do not yet
participate in the Tribal Transit Program, may file a report with the
NTD on a voluntary basis for inclusion in future apportionments (FY
2014 and beyond.) Apportionments will be based on a statutory formula
which includes three tiers. Tiers 1 and 2 are based on historical data
reported to the NTD by Indian tribes who received Section 5311 funding
in prior years (including discretionary Tribal Transit Program funds);
Tier 3 is based on 2010 U.S. Census data.
The statutory tiers for the formula are:
Tier 1--50 percent based on vehicle revenue miles as reported to
the NTD.
Tier 2--25 percent apportioned equally amongst Indian tribes
providing at least 200,000 vehicle revenue miles as reported to the NTD
Secretary.
Tier 3--25 percent based on Indian tribes providing public
transportation on reservations in which more than 1,000 low income
individuals reside, with no tribe receiving more than $300,000 for this
tier.
In establishing the apportionment methodology, FTA is proposing a
number of key assumptions shown below. FTA seeks comment on the
following questions:
a. Should FTA include vehicle revenue miles from Indian tribes in
both the Tribal Transit Program formula apportionment and the Rural
Area Formula Program apportionment? FTA proposes to allow vehicle
revenue miles from Indian tribes to count towards both formula
apportionments. Normally, FTA does not allow a single vehicle revenue
mile to count twice towards different formulas (e.g., service between a
rural area and an urbanized area (UZA) must be counted the Rural Area
Formula Program apportionment or the Urbanized Area Formula Program
apportionment, but not both). The Tribal Transit Program formula,
however, refers to ``Indian tribe[s] providing public transportation,''
not where the service is being operated. Therefore, tribes may report
their total vehicle revenue miles, regardless of funding source, to the
NTD, and States may include tribal vehicle revenue miles in their
reporting to the NTD.
b. When another local government entity pays an Indian tribe to
operate service in an off-reservation jurisdiction, should 100% of that
service operated by the Indian tribe count towards the Tribal Transit
Program formula? FTA proposes to count 100% of service operated by
Indian tribes towards the Tribal Transit Program apportionment. This
interpretation is consistent with ``each Indian tribe providing public
transportation service.''
c. When an Indian tribe pays another local government entity to
extend service to the Reservation, should a pro-rated share of the
local government's vehicle revenue miles be counted towards the Tribal
Transit formula? FTA proposes to count a pro-rated share of the
operator's vehicle revenue miles towards the Tribal Transit Program
apportionment, based on the portion of the total operating expenses
provided by the Indian tribe. This share then would count towards both
the Rural and Tribal Transit program formulas.
d. Should FTA consider tribes that actually are providing public
transportation on Indian reservations when no revenue miles are
reported to the NTD for funding under Tier 3? FTA proposes that tribes
that previously received capital assistance through the Tribal Transit
Program should be included in Tier 3 of the Tribal Transit Program
formula, which is based on low-income population on Tribal lands.
e. Should FTA consider allowing Tribal Transit Program grantees who
were otherwise exempt from reporting based on grant dollar amount
(under $50,000) be given an opportunity to report to the NTD or to FTA
for inclusion in the FY 2013 apportionment?
f. For Indian tribes that have multiple operators, should FTA
consolidate the service data for all operators into a single
apportionment?
g. For Indian tribes that share reservation lands, such as in
Oklahoma, how should FTA conduct the apportionment of funds?
h. In some instances tribal operators may serve multiple
reservations. Should FTA combine poverty data for all reservations
served into a single apportionment?
III. Questions on Proposed Tribal Transit Discretionary Program
$5 million in discretionary funds are authorized for grants to
federally-recognized Indian tribes for any purpose under the Section
5311 program. 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 State through FTA's Section 5311 program. Tribal
Transit funds are meant to complement Section 5311 funds that
applicants may be receiving. In light of the $25 million formula
program, FTA seeks comments on the eligibility of applicants, eligible
projects, and cost sharing for the discretionary program. Program
requirements of the Tribal Transit Program under SAFETEA-LU can be
accessed at http://www.fta.dot.gov/documents/06-6911.pdf.
FTA seeks comments on the following questions:
a. Should eligible applicants under the discretionary program be
restricted based on the availability of formula funds?
b. If the discretionary program should be restricted, should
applicants and projects be limited based on the amount of formula
allocation received?
c. Should a portion of discretionary program funds be set aside for
1. Start-up projects, or
2. Planning projects, or
3. Expansion of services?
d. Should FTA establish minimum and maximum grant awards to ensure
that grant funding is large enough to aid Indian tribes?
e. Should operating assistance continue to be eligible under the
discretionary program? If so, what type of operating expenses?
f. Should FTA prioritize projects for funding as a part of the
evaluation criteria? If so, what factors should be used to prioritize
projects (continuation services, start-ups, matching funds, etc.)?
IV. Questions on Proposed Cost Sharing, Matching, and Indirect Costs
FTA recognizes the particular challenges tribes may have providing
a local match, but to ensure that participants in this program have a
vested interest we propose requiring some local match. Matching funds
may be provided from Federal agencies other than the Department of
Transportation with the exception of Federal Lands Highways program
funds, administered by the Federal Highway Administration and Indian
Reservation Roads (IRR) Program.
FTA seeks comments on the following questions:
a. Should FTA require an 80/20 Federal/local match for tribes for
both capital and operating assistance under
[[Page 67441]]
both the formula and discretionary Tribal Transit Programs?
b. Would an 80/20 match present a financial burden on tribes? If
so, is there a proposed match amount that would be less burdensome?
c. Under SAFETEA-LU, FTA limited the indirect cost to not more than
10 percent of each Tribal Transit grant award. Should FTA retain the
condition that indirect costs not exceed 10 percent of each Tribal
Transit grant award under MAP-21?
V. Proposed Terms and Conditions of the Tribal Transit Program
Section 5311(c) of Title 49 U.S.C., as amended by MAP-21, provides
that available funds shall be apportioned for grants to Indian tribes,
``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. 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 Driver's License.
To the extent permitted by law and in recognition of the unique
status and autonomy of Indian tribes, FTA has made every effort in
establishing the terms and conditions to balance the objectives of this
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.
Other applicable program requirements were established for the Tribal
Transit Program under SAFETEA-LU.
Therefore, FTA seeks guidance on the following terms and
conditions, which are being considered for both the formula and
discretionary programs.
a. 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.
b. 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.
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 Tribal Employment Rights Offices (TERO)
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 of course will 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 nonetheless still will 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. Section 504 of the Rehabilitation Act of 1973 and Americans with
Disabilities Act (ADA) requirements in 49 CFR parts 27, 37, and 38 are
government-wide requirements that apply to all Federal programs.
d. Drug and Alcohol Testing requirements (49 CFR Part 655). Should
FTA continue to apply this requirement because it addresses a national
safety issue for operators of public transportation?
e. National Environmental Policy Act. This is a government-wide
requirement that applies to all Federal programs.
f. 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.
g. 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 therefore will apply.
h. Bus Testing (49 CFR part 665) requirement. To ensure that
vehicles acquired under this program will meet adequate safety and
operational standards, should FTA now apply this requirement?
i. Labor Protection requirement. The U.S. Department of Labor (DOL)
will, pursuant to 49 U.S.C. 5333(b), apply the section 5311 special
warranty. 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 continue to apply the special
warranty to the Tribal Transit Program.
j. Buy America requirements. FTA did not apply the Buy America
requirements to the Tribal Transit program prior to FY 2012. However,
FTA proposes including Buy America requirements on the formula and
discretionary programs under MAP-21.
k. MAP-21, Section 5329 requires all grantees to develop
comprehensive agency safety management plans that at a minimum include
methods for identifying and evaluating safety risks, strategies to
minimize exposure to hazards and unsafe conditions, and performance
targets for safety performance criteria and state of good repairs
standards established in a forthcoming National Public Transportation
Safety plan. A rulemaking is forthcoming to further explain the
requirements for the development and certification of agency safety
plans and following that rulemaking, FTA will be finalizing
requirements through a rulemaking at a later date. In the interim, we
are seeking comment on whether to apply these provisions to the Tribal
Transit Program.
l. Transit Asset Management Provisions. MAP-21 requires each
recipient and subrecipient of FTA grants to establish a ``transit asset
management'' (TAM) plan for its transit system. This requirement,
however, would not be a condition for receiving FTA grants until FTA
issues its rule-making. Further, depending on the outcome of that rule-
making, FTA would propose that so long as tribes have a system for
maintaining their capital asset inventory and a basis for prioritizing
and replacing capital assets, it would not require the tribe to prepare
a TAM plan. FTA seeks comment on whether to apply this requirement to
the Tribal Transit Program.
[[Page 67442]]
m. Pre-award and post-delivery audits (49 CFR part 633). FTA seeks
comment on whether to apply this requirement.
n. Should U.S. DOT's DBE regulation, 49 CFR part 26, continue not
to apply to the Tribal Transit Program?
A comprehensive list and description of all of the statutory and
regulatory terms and conditions that FTA applied to the SAFETEA-LU
Tribal Transit Program are set forth in FTA's Master Agreement for the
Tribal Transit Program available on FTA's Web site at:
www.fta.dot.gov/. Annual certifications and assurances are also
available on FTA's Web site.
Issued in Washington, DC, this 6th day of November, 2012.
Peter M. Rogoff,
Administrator.
[FR Doc. 2012-27458 Filed 11-8-12; 8:45 am]
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