Suggest a Topic
Didn't see what you needed? Suggest a new topic here!
Click here to suggest your topic.

Section 5311 and the Tribal Transit Program

Tribes can receive FTA Section 5311 funds (U.S. Code Title 49, Section 5311): through the Section 5311 program and/or through the Section 5311(c) Tribal Transit Program (tribes can receive funding from both programs in the same fiscal year).  As a tribal transit manager, it is important to understand the eligibility for and requirements of each program. 

 

Tribes as subrecipients

If your tribe receives funding through the Section 5311 program, your state will be the recipient on your behalf, and you will be a subrecipient of the state.  As a subrecipient of the state, your tribe will be considered the same, and held to the some requirements, as other tribal and non-tribal Section 5311 subrecipients (see Section I of this toolkit for Section 5311 program requirements).  You will enter into a written agreement with the state that will state the terms and conditions of assistance for the project, and the state will submit certifications, assurances and NTD data to the federal government on your behalf.  

 

Tribes as direct recipients

If you are a federally-recognized Indian tribe or Alaska Native village, group, or community as identified by the U.S. Department of the Interior (DOI) Bureau of Indian Affairs (BIA), you are eligible to be a direct recipient under the Public Transportation on Indian Reservations Program (Tribal Transit Program) in Section 5311(c)(1).  Federally-recognized tribes are also eligible to be direct recipients under Section 5311, like a state, but that will not be covered in this section.

As a direct recipient through the Tribal Transit Program, the requirements you would be responsible for are slightly different from those under the Section 5311 program.  The section below will discuss the Tribal Transit Program and how its requirements differ from those under the Section 5311 program.

To learn more about how to apply to be a direct recipient of Tribal Transit Program funding, please see the Public Transportation on Indian Reservations Program (Tribal Transit Program) page on the FTA website. 

 

Tribal Transit Program 

The Tribal Transit Program was established under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users or SAFETEA–LU in 2006 as part of the Section 5311 program. The program has continued and the Fixing America’s Surface Transportation (FAST) Act (signed into law December 4, 2015), authorizes the Public Transportation on Indian Reservations Program (Tribal Transit Program or TTP) for Fiscal Years 2016-2020.

The TTP is still a set-aside from the Formula Grants for Rural Areas (Section 5311) program, but now consists of a $30 million formula program and a $5 million competitive grant program subject to the availability of appropriations. A 10-percent local match is required under the competitive program, however, there is no local match required under the formula program.

Only federally-recognized tribes are eligible recipients under the Tribal Transit Program. However, tribes which are not federally-recognized remain eligible to apply to the state as a subrecipient under the State's apportionment for 5310, 5311, or 5307 funding.

Federally recognized tribes may use the funding for capital, operating, planning, and administrative expenses for public transit projects that meet the growing needs of rural tribal communities. Examples of eligible activities include: capital projects; operating costs of equipment and facilities for use in public transportation; and the acquisition of public transportation services, including service agreements with private providers of public transportation services. 

For more information about the Tribal Transit Program, visit the Tribal Transit Program page on the FTA website. 

Information about the Tribal Transit Program under MAP-21 and the FAST Act (until a new Circular is published) can be found in the Section 5311 Circular (FTA C 9040.1G) - Formula Grants for Rural Areas: Program Guidance and Application Instructions, last update 11/24/2014. See specifically Chapter X - Public Transportation on Indian Reservations, pages X-1 to X-4.

 

Formula program

The Formula Grants for Public Transportation on Indian Reservations Program is authorized under Section 5311(j). These formula funds are distributed to federally-recognized Indian Tribes providing public transportation on tribal lands. In order to received formula funds a tribe must report to the National Transit Database (NTD) on an annual basis.

According to the Section 5311 Circular (FTA C 9040.1G) - Formula Grants for Rural Areas: Program Guidance and Application Instructions, last update 11/24/2014, the formula program apportions funds to Indian tribes using the following three tiers:

  • Tier I – 50% of the funds available under the formula program are apportioned based on vehicle revenue miles (VRM), as reported to the National Transit Database (NTD).
  • Tier II – 25% of the funds available under the formula program are apportioned equally among Indian tribes providing at least 200,000 VRM annually, as reported to the NTD.
  • Tier III – 25% of the funds available under the formula program are apportioned to Indian tribes providing public transportation on tribal lands (American Indian Areas, Alaska Native Areas, and Hawaiian Home Lands, as defined by the Bureau of the Census) where more than 1,000 low-income persons reside as determined by the Bureau of the Census. No recipient shall receive more than $300,000 under Tier III.

Because eligibility for Tiers I and II comes from NTD data, tribes that are exempt from reporting to NTD are encouraged to start doing so voluntarily in order to be eligible for funding going forward under these tiers.  For consideration for Tier III formula funding a tribe must be registered with the NTD as of October 1st of the current Fiscal Year and be providing public transportation.  There is no local match for funds received under the formula program.

 

Discretionary program

Discretionary program funds are available annually on a competitive basis, and tribes can apply for discretionary funds regardless of whether or not they receive formula funds.  Unlike the formula program, there is a 10% local match required unless a tribe can demonstrate financial hardship.  Funding opportunities are announced annually by FTA in a Notice of Funding Opportunity (NOFO), usually published in the Federal Register and posted on FTA’s website. 

For more information about the discretionary Tribal Transit Program, which may vary year to year, visit the Tribal Transit Program page on the FTA website. 

For full details about the Fiscal Year 2018 discretionary funding, see the FY 2018 Competetive Funding Opportunity: Public Transportation on Indian Reservations Program; Tribal Transit Program NOFO in the Federal Register on July 11, 2018. 

For full details about the Fiscal Year 2017 discretionary funding, see the FY 2017 Competitive Funding Opportunity: Public Transportation on Indian Reservations Program; Tribal Transit Program NOFO in the Federal Register on January 19, 2017.

Information about the Tribal Transit Program under MAP-21 and the FAST Act (until a new Circular is published) can be found in the Section 5311 Circular (FTA C 9040.1G) - Formula Grants for Rural Areas: Program Guidance and Application Instructions, last update 11/24/2014. See specifically Chapter X - Public Transportation on Indian Reservations, pages X-1 to X-4.

 

Title VI and hiring practices under TERO 

As a tribe, you are excluded from the definition of an “employer” under Title VII of the Civil Rights Act of 1964. Based on this Title VII exclusion, as long as TEROs (tribal employment rights ordinances) are consistent with federal laws that authorize a general preference for Indians in employment or contracting for Federally funded work on or around Indian reservations, TEROs may be used by a tribe. 

In addition, while you, as a tribe, do not have to comply with FTA’s program-specific requirements for Title VI, if you participate in the Tribal Transit Program you will still be subject to the statutory provisions of Title VI of the Civil Rights Act.

 

TERO

According to the Leech Lake Band of Ojibwe, “TERO Ordinances require that all employers who are engaged in operating a business on reservations give preference to qualified Indians in all aspects of employment, contracting, and other business activities,” and the authority of a tribe to enact such a law is based on its inherent sovereign powers of self-government.  TERO Ordinances enforce Indian Preference law, and, as stated above, this law works to ensure employment, training, contracting and subcontracting, and business opportunities for Indian/Alaska Native people on and near reservations and native villages.
 

The Leech Lake Band of Ojibwe website gives an overview of what TERO does (list and quote above taken directly from the tribe’s website):

  • Sets conditions– it mandates the tribal requirements for Indian Preference that all covered employers must comply with in order to be eligible to perform work on reservations.
  • Establishes authority– it empowers the TERO Commission and staff with sufficient authority to fully enforce all provisions of TERO.
  • Assigns responsibility– it defines and describes the duties and responsibilities of TERO staff and commission.
  • Delineates penalties for violations– it clearly spells out penalties employers may face for violations of tribal law.
  • Provides due process– it provides principles of legal fairness to all parties involved in compliance or violation dispute issues.
To read more about TERO, and learn about the Leech Lake Band of Ojibwe Tribe, please see their website

 

Indian Preference

The Department of the Interior published a document that details the statutory requirements of Indian Preference, which is derived from Section 7(b) of the Indian Self-Determination and Education Assistance Act (Public Law 93-638, 88 Stat. 2205, 25 U.S.C 450e(b)).  These requirements state that any contract or subcontract entered into in accordance with any act authorizing contracting with tribes or contracting for the benefit of tribes, is required to include the following (this list is taken directly from the Department of Interior Acquisition Regulation (DIAR) document):  
 
  • that preferences and opportunities for training and employment in connection with the administration of such contracts or grants shall be given to Indians; and
  • that preference in the award of subcontracts and subgrants in connection with the administration of such contracts or grants shall be given to Indian organizations and to Indian-owned economic enterprises as defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 77).

To read the full Department of the Interior Acquisition Regulation (DIAR) document, please click here