Public Transportation on Indian Reservations Program; Tribal Transit Program; Response to Comments

AGENCY:

Federal Transit Administration (FTA), Department of Transportation (DOT).

ACTION:

Responses to the request for comments and in-person and virtual consultations.

SUMMARY:

This notice summarizes and responds to comments the Federal Transit Administration (FTA) received in response to an August 15, 2023, Federal Register notice, a September 25, 2023, in-person consultation session, and a November 2, 2023, virtual consultation session regarding how the FTA Tribal Transit competitive program and technical assistance should be provided to Tribes.

DATES:

Applicable date: June 10, 2024.

FOR FURTHER INFORMATION CONTACT:

Elan Flippin-Jones, Office of Program Management, (202) 366-3800 or email TribalTransit@dot.gov. A TDD is available at 1-800-877-8339 (TDD/FIRS).

SUPPLEMENTARY INFORMATION:

Table of Contents

A. Program Overview

B. Outreach and Consultation Schedule in 2023

C. Changes to the Tribal Transit Competitive Program: Comments and Responses

D. Tribal Transit Technical Assistance Improvements

A. Program Overview

Federal public transportation law (49 U.S.C. 5338(a)(2)(F) and 49 U.S.C. 5311(j)), as amended by the Infrastructure Investment and Jobs Act (Pub. L. 117-58, the Bipartisan Infrastructure Law or BIL), authorizes the Public Transportation on Indian Reservations Program (the Tribal Transit Program or TTP) for Fiscal Years (FY) 2022-2026. The TTP is funded as a takedown from the FTA's Formula Grants for Rural Areas Program under 49 U.S.C. 5311. Eligible direct recipients are federally recognized American Indian Tribes and Alaskan Native Villages, groups and communities providing public transportation in rural areas, as identified by the U.S. Department of the Interior (DOI) Bureau of Indian Affairs (BIA) and published in the Federal Register (89 FR 944). The TTP funds are allocated for grants to eligible recipients for any purpose eligible under 49 U.S.C. 5311 including capital, operating, and planning projects. The TTP includes a formula component and a competitive component. BIL authorizes a total of $229 million over five years, of which $183.3 million is for the TTP formula program, and $45.8 million for the TTP competitive grant program.

Based on the published solicitation of comments, and in-person and virtual consultations referenced in this notice, FTA is announcing certain policy changes to the TTP competitive program that may significantly affect Tribes. Pursuant to USDOT Order 5301.1A Department of Transportation Tribal Consultation Policy and Procedures, ( https://www.transportation.gov/mission/department-transportation-tribal-consultation-policy-and-procedures ) FTA, as an operating administration (OA) of the United States Department of Transportation (USDOT), is committed to fostering and facilitating positive government-to-government consultations with federally recognized Indian Tribes before implementing any changes to FTA policies, programs, or services that may have Tribal implications.

This notice is consistent with the policies and directives of Executive Order (E.O.) 13175, Consultation and Coordination with Indian Tribal Governments (65 FR 67249). The Federal Government's commitment to implement E.O. 13175 is reaffirmed in the Biden Administration's January 26, 2021, Presidential Memo on Tribal Consultation and Strengthening Nation-to-Nation Relationships ( https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/26/memorandum-on-tribal-consultation-and-strengthening-nation-to-nation-relationships/ ) and the November 30, 2022, Presidential Memo on Uniform Standards for Tribal Consultation ( https://www.whitehouse.gov/briefing-room/presidential-actions/2022/11/30/memorandum-on-uniform-standards-for-tribal-consultation/ ).

The TTP has been administered under the results of the previous consultation for over a decade. During this time frame, funding and the number of Tribes participating in the TTP has increased, and Tribes have dealt with unforeseen circumstances related to the COVID-19 pandemic, supply chain disruptions, and increases in the cost of goods and services. For example, with the authorization of BIL, the funding amount made available under the TTP competitive program increased by 83 percent over levels authorized under the Fixing America's Surface Transportation (FAST) Act. Furthermore, since FY 2013, the number of Tribes receiving funding under the TTP formula program has grown from 110 Tribes to 132 Tribes in FY 2024. Therefore, in light of these changing circumstances, FTA consulted with Tribal recipients to ensure the TTP policies are being administered in effective and beneficial ways.

B. Outreach and Consultation Activities in 2023

1. Outreach and Meetings

An in-person consultation was held in conjunction with the National Transportation in Indian Country Conference (NTICC) in Anchorage, Alaska on September 25, 2023.

Additionally, a virtual consultation was on held on November 2, 2023. Tribes that are eligible recipients of FTA's TTP were encouraged to attend one or both of these meetings. Comments made at these meetings informed FTA's decision-making.

2. Consultation Activities in 2023

• In-Person listening session at the Department of Transportation Tribal Transit Symposium held in Oklahoma City: May 24-25, 2023.
• Publication of aFederal Register notice with proposed program changes to the TTP competitive program: August 15, 2023 at 88 FR 55498.
• In-person consultation meeting at the NTICC: September 25, 2023.
• Virtual outreach meeting: November 2, 2023.

C. Changes to the Competitive Program: Comments and Responses

A total of $45,812,610 is authorized for FY 2022-2026 for the TTP competitive grant program. Funds may be awarded to federally recognized Indian Tribes for any purpose authorized by 49 U.S.C. 5311. The outcome of this consultation will impact the administration of TTP competitive funding awarded for FY 2024-2026. For FY 2024-2026, a total of $28,123,961 is made available under the TTP competitive program.

Program requirements for the TTP can be found in the FTA Circular 9040.1G: Formula Grants for Rural Areas: Program Guidance and Application Instructions ( https://www.transit.dot.gov/regulations-and-guidance/fta-circulars/formula-grants-rural-areas-program-guidance-and-application ).

FTA received 29 comments from Tribes and other stakeholders and organizations from the in-person and virtual consultations, and through the docket opened for response to the August 15, 2023, Federal Register notice. The comments received from the Tribes and Tribal organizations were generally favorable to FTA's proposed implementation of the TTP. This section outlines the specific questions FTA asked during the consultations, the comment responses received, and FTA's response.

1. Should TTP competitive program funds continue to support capital, operating and planning projects? These types of projects are currently eligible under the program. Limitations on certain activities will leave more funding available for the other types of activities. For example, limiting or removing operating projects as an eligible project type will leave more funding available for capital and planning projects.

Comments: Several Tribes commented that capital and operating assistance are important for their Tribe's specific transit needs. One Tribe commented that capital funds are needed for the replacement of vehicles. Another Tribe commented that capital funds are vital to focus on climate change.

Response: FTA will continue to support eligible capital, operating, and planning projects under the TTP competitive program. Additionally, Tribes are eligible to receive funding under other FTA programs such as the Buses and Bus Facilities Competitive Program (49 U.S.C. 5339(b)), which makes Federal resources available to replace, rehabilitate, and purchase buses and related equipment and to construct bus-related facilities, including technological changes or innovations to modify low or no emission vehicles or facilities.

2. Should operating assistance under the TTP competitive program be limited based on the amount of TTP formula allocation received? Prior to the pandemic, FTA limited operating assistance to applicants who receive less than $20,000 under the TTP formula program. This threshold preserves TTP competitive funds for larger capital projects. Increasing or removing this threshold would potentially reduce the amount of funding available for capital projects.

Comments: No comments were received for this question.

Response: As in recent years, FTA will continue to allow all eligible Tribes to apply for operating assistance with no threshold implemented under the TTP competitive program.

3. Should the TTP competitive program funds continue to support start-up, expansion, and replacement capital projects? These projects are currently eligible under the program. Should FTA prioritize start-up projects in order to advance Tribal transit providers into the formula program? Once a Tribal transit provider begins operating service and providing service data to the National Transit Database, the provider will be eligible to receive TTP formula funds.

Comments: Two Tribes commented that FTA should establish separate TTP competitive programs that support planning, operating, capital, and start-up projects.

Response: Separating start-up projects from existing systems into two separate competitive programs would not increase the available funding. FTA will continue to administer the TTP competitive program as such and support eligible start-up, expansion, and replacement capital projects, as well as support planning and operating projects. This approach gives FTA maximum flexibility to award funding where it is needed most in a particular fiscal year under the TTP competitive program.

4. Should FTA establish a minimum and/or maximum grant amount under the TTP competitive program? Currently, there is no minimum or maximum set for allocations under this program. However, planning grants are capped at $25,000. Establishing a maximum grant amount would preserve funds for additional projects but may prevent larger projects from being funded at the full request.

Comments: One Tribe commented that establishing a minimum or maximum grant amount under the TTP competitive program is too restrictive and there should be no funding request limits.

Response: There will be no set minimum or maximum grant award amount for capital or operating projects. FTA will fund capital and operating projects based on the merit of the application and the Tribe's ability to successfully address all evaluation criteria.

5. Should FTA continue to cap planning grants at $25,000 under the TTP competitive program? Should FTA retain the cap for planning grants but set it at a different amount? This cap preserves TTP competitive funds for larger capital projects.

Comments: Many Tribes commented that there should be an increase to the cap on planning grants under the TTP competitive program. Several Tribes commented that the cap for planning grants should be increased to $50,000.

Response: Starting in FY 2024, FTA will increase the cap on planning grants to $50,000 under the TTP competitive program.

6. Should FTA require a local match of 10 percent of total project costs for both capital and operating assistance projects under the TTP competitive program? If so, should FTA continue to include an option for Tribes to submit a local match waiver request? In recent years, there has been no match required for either the TPP competitive or formula programs. However, in the past, a 10 percent match was required on TTP competitive program projects, unless the Tribe applied for a hardship waiver. Requiring a local match would allow for more projects to be funded but may discourage some Tribes from applying for funding.

Comments: Several Tribes commented in favor of eliminating the local match requirement or expanding the hardship waiver. One Tribe commented that it is difficult to obtain a match for smaller Tribal communities. Another Tribe commented that the local match hinders the Tribe's ability to apply for funds for needed programs. Another Tribe stated that it is discouraged from applying for grants where local match is required because of the administrative factor.

Response: FTA will not require a local match for either capital or operating assistance projects under the TTP competitive program. FTA already does not require a match for planning projects. FTA will still permit Tribes to voluntarily provide local match or contribute to their projects with eligible matching funds.

7. Should FTA retain the condition that indirect costs not exceed 10 percent of each TTP competitive grant allocation? Providing a cap on the percentage of a grant that can be applied to indirect costs reserves more funding for capital projects but may underestimate the true amount of indirect costs attributable to a project.

Comments: One Tribe commented that the 10 percent is limited, while indirect cost expenses are significantly greater. Two Tribes commented to eliminate indirect cost eligibility. Another Tribe supported retaining the 10 percent indirect cost cap.

Response: FTA will retain the condition that indirect costs do not exceed 10 percent of each TTP competitive grant allocation. This will ensure the limited competitive resources are spent on tangible transit services and equipment.

8. Should FTA continue to provide Tribes 90 days to submit applications under the TTP competitive program Notice of Funding Opportunity? In the past, FTA has had either a 60-day or a 90-day deadline for application submission under the TTP competitive program.

Comments: Two Tribes commented that FTA should maintain the 90-day window to submit proposals.

Response: Since 2022, proposals under the TTP competitive program have been required to be submitted within 90 days. FTA will continue to provide Tribes 90 days to submit proposals under the TTP competitive program Notice of Funding Opportunity.

9. Should FTA examine or alter any other aspect of the TTP competitive program?

Comments: Several comments were received from Tribes requesting additional funding be made available under the TTP competitive program. One Tribe commented that FTA should consider listing examples of applications that were not funded.

Response: In FY 2023, FTA allocated $9.9 million for capital, operating, and planning projects. The BIL includes nearly $46 million in competitive funding over five years for the TTP, an increase of nearly 83 percent. FTA will continue to offer debrief meetings to unsuccessful applicants. During the debrief, FTA explains why the competitive application was not funded and provides technical assistance that is intended to assist the Tribe in submitting a more competitive application in a subsequent competition. Since 2023, FTA has conducted approximately 20 debriefs for unsuccessful Tribal applicants.

FTA also asked whether any Tribes had comments about the administration of the TTP formula program, however no comments were received on that topic.

D. Tribal Transit Technical Assistance Improvements

Through the Tribal Transit Technical Assistance Assessments Initiative, FTA collaborates with TTP recipients to review processes and identify areas in need of improvement, and then assists by offering solutions to address these needs—all in a supportive manner that results in technical assistance. These assessments include discussions of compliance areas pursuant to FTA's Master Agreement ( https://www.transit.dot.gov/funding/grantee-resources/sample-fta-agreements/fta-grant-agreements ), site visits, promising practices reviews, and technical assistance from FTA and its contractors. These assessments also provide FTA with opportunities to learn more about Tribal perspectives. To date, FTA has conducted 105 assessments and will conduct 34 additional assessments by the end of the FY 2024 assessment cycle.

FTA also offers technical assistance to Tribes through its National Rural Transit Assistance Program (National RTAP) ( https://www.nationalrtap.org/ ) and FTA Regional Offices ( https://www.transit.dot.gov/about/regional-offices/regional-offices ) provide direct technical assistance to Tribal recipients in their respective regions. FTA sought comments on its technical assistance efforts through the following question:

1. How can FTA improve its technical assistance efforts for Tribal recipients?

Comments: Two commenters requested more training resources for TrAMS and National Transit Database reporting. Two Tribes commented that more training should be available for transit planning and resources for the implementation of start-up transit services.

Response: FTA will continue to improve, enhance, and expand technical assistance efforts for TrAMS and NTD. National RTAP offers resources for Tribal and rural transit providers and will continue to offer those resources and expand their technical assistance to include trainings on the implementation of a Tribal transit system. Some of the currently available National RTAP resources can be found at: https://www.nationalrtap.org/Toolkits/Transit-Managers-Toolkit/Tribal-Transit/Welcome.