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Section 5311 and the Tribal Transit Program

Tribes can receive FTA 5311 funds in two ways:  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.  This section will discuss the Tribal Transit Program under both the SAFETEA-LU and MAP-21 authorizations.  

Please note that under SAFETEA-LU, the Tribal Transit Program was found in Section 5311(c).  Under MAP-21, the discretionary program remains in Section 5311(c) while the new formula program is found in Section 5311(j). 

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 tribe, you are eligible to be a direct recipient under the Section 5311(c) Tribal Transit Program.  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 “Tribal Transit Webinar Presentation 10 Apr 2012” on the FTA website. 

Tribal Transit Program under SAFETEA-LU

The Tribal Transit Program was established as a take-down from the Section 5311 program, but these funds are not intended to replace or reduce funds that tribes receive from states as subrecipients through the Section 5311 program.  Recipients under the Tribal Transit Program may use these funds for any activities that are eligible for Section 5311 funding, including capital, administration and operating assistance for rural public transit services and support for rural intercity bus service.  Under SAFETEA-LU, the Tribal Transit Program is a discretionary program, and the federal share of project costs is 100%.  Tribal direct recipients must comply with all management requirements of Section 5311 funding as well as with all terms and conditions of FTA’s standard grant agreements.   However, the FTA has developed special terms and conditions for tribes receiving funding through the Tribal Transit Program, which are applicable only to this program: 
 
  • Funding for planning purposes– because subsections of the 5311 program permit the use of section 5311 funds for planning, planning is an eligible purpose under section 5311(c).  However, the FTA has limited 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 limits the amount of funds to $25,000 per applicant.
  • FTA planning requirements– tribes are not subject to federal planning requirements, and the FTA will not require tribes to attach tribal transportation plans to a STIP (Statewide Transportation Improvement Program).  However, the FTA encourages tribes to submit a copy of their tribal transportation plans to the State Departments of Transportation for informational purposes only.
  • Local share requirement– the FTA does not require a non-federal matching share for Tribal Transit Program grants.
  • Federal labor protections– because direct grants from the FTA to tribes do not involve a state-recipient relationship, the labor protective provisions of 49 U.S.C. 5333 (b) do not apply to this program.  However, the following special warranty does apply to the Tribal Transit Program: “if the Secretary of Labor utilizes a special warranty that provides a fair and equitable arrangement to protect the interests of employees” (section 5333 (b)).
  • Disadvantaged Business Enterprise regulation– in order to streamline program requirements, the FTA DBE regulation, 49 CFR part 26, will not apply to the Tribal Transit Program.
  • Buy America – tribes are not expected to comply with the Buy America requirement.
  • Intercity bus service provision– tribes are not required to spend 15 percent of funds received under the Tribal Transit Program for intercity bus service.  
 To read more about these special terms and conditions, please see the FTA Federal Register Vol. 71, No. 157, Tuesday, August 15, 2006.  

Tribal Transit Program under MAP-21

The purpose of the Tribal Transit Program remains the same under MAP-21, however the delivery method of the funds has changed from a purely discretionary program (as it was under SAFETEA-LU) to contain both discretionary and formula funding programs.  MAP-21 authorizes a $25 million dollar formula program and a $5 million dollar discretionary grant program (subject to the availability of appropriations).  Tribes must be federally recognized to be eligible for funding from either program.

Formula program

According to FTA Federal Register Notice Vol. 78, No. 90, issued Thursday, May 9, 2013, the formula program apportions funds to Indian tribes using the following three tiers:

  • Tier 1 -- 50% of the funds available for distribution under the formula program are to be apportioned based on Vehicle Revenue Miles (VRM) as reported to the National Transit Database (NTD).
  • Tier 2 --25% of the funds available for distribution under the formula program are to be apportioned equally among Indian tribes that provide at least 200,000 VRM as reported to the NTD.
  • Tier 3 – 25% of the funds available for distribution under the formula program are apportioned to Indian tribes that provide public transportation service on reservations that have at least 1,000 low income residents according to 2010 U.S. Census data.  A tribe can receive no more than $300,000 from this tier.   

Because eligibility for Tiers 1 and 2 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 3 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.  However, there is no local match for planning grants awarded under this program.  Funding opportunities are announced annually by FTA in a Notice of Funding Availability (NOFA), usually published in the Federal Register and posted on FTA’s website. 

Under MAP-21, the FTA has limited the list of projects that are eligible under this program.  The following is the list of eligible projects as described in the Federal Register Notice Vol. 78, No. 90, Thursday, May 9, 2013:

  • Planning projects— there is a $25,000 cap.
  • Capital projects—this includes start-up, replacement or expansion services.
  • Operating assistance— this includes start-up and new systems. It also includes systems that can prove they operate public transportation and either did not receive any formula funding or only Tier 3 funding in FY2013.  General operating assistance is no longer eligible (except in limited circumstances in FY 2013).

Under MAP-21, tribes that receive TTP funding (both formula and discretionary) must follow the Buy America requirement for all capital procurements.  This is a change from SAFETEA-LU as tribes were exempt from the Buy America requirement under that authorization.

To read more about the Tribal Transit Program under MAP-21, please see the FTA Federal Register Notice Vol. 78, No. 90, Thursday, May 9, 2013.

Information about the Tribal Transit Program under MAP-21 can be found in the proposed Section 5311 titled “Formula Grants for Rural Areas: Program Guidance and Application Instructions.”  Comments on the proposed circular are due to FTA in November 2013, and a final version should be published shortly thereafter. The proposed Section 5311 circular can be found on the FTA website

 

Title VI and hiring practices under TERO 

As a tribe, you are excluded from the definition of an “employer” found in Title VI and Title VII of the Civil Rights Act of 1964.  Based on this exclusion, as long as TEROs (tribal employment rights ordinances) are “in agreement with any federal statutes that authorize a general preference for Indians in employment or contracting for Federally funded work on or around Indian reservations, FTA will comply with applicable law.”  It should be noted that while you, as a tribe, do not have to be in compliance with FTA’s program-specific requirements under Title VI and Title VII of the Civil Rights Act, if you participate in the Tribal Transit Program you will still be subject to the provisions of Title VI and Title VII of the Civil Rights Act, unless you are specifically exempt from the Act.

To read more about this topic, please see FTA Federal Register Vol. 71, No. 157, Tuesday, August 15, 2006 (quote above from this source). 

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
 

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