[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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