Developing, Enhancing, and Sustaining Tribal Transit Services: A Guidebook (2012)

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92 C h a p t e r 8 Introduction This chapter answers questions related to funding, such as the following: • What are the funds available to start or enhance a transit program? • Who is eligible to apply for these funds? • Are there grants that can be used toward local match requirements for U.S. Department of Transportation (U.S. DOT) grants? • What is needed to create a sustainable transit service? • What are some innovative approaches to local funding? Funding often is the key to implementing and, more importantly, sustaining tribal transit programs. Although funds may be found to start a service, funds also must be available to con- tinue that service in future years. A number of tribes have been in the position of being forced to discontinue service because a source of funding no longer was available. This chapter describes many of the funding sources available to tribes to plan, develop, and operate transit services. The most successful programs have tapped funds from a variety of these sources so the program is not dependent on any single source of funding. Some tribes have found innovative ways to obtain or increase funding and several of these approaches are described in the chapter. Appendix C provides more detail about the various federal and state grant programs that support tribal transit planning, operations, and services, beginning with the 30 federal programs summarized in Table 8.1. Nearly half of these programs (43 percent) are sponsored by the U.S. Department of Transportation (U.S. DOT), which supports transit in both rural and urban environments; for the general population; and for the special requirements of persons with dis- abilities, elderly persons, low-income persons, and unemployed persons. Tribal transit programs and services are eligible activities for all of the grant programs, but the Tribal Transit Program, Section 5311(c), is designated specifically for tribal governments. The remaining 17 federal pro- grams are sponsored by the U.S. Department of Agriculture (USDA), Commerce, Education (ED), Housing and Urban Development (HUD), Health and Human Services (HHS), and Labor (DOL). These programs encompass the array of special-need transportation services in health, social services, vocational rehabilitation, economic development, and education. Most of the programs (59 percent) are sponsored by HHS. Appendix C also includes a representative sample of state grant programs that support tribal transit programs and services. The sample includes Arizona, California, Oklahoma, Oregon, and Washington State. The goals and requirements of these programs vary by state and illustrate the diversity of interest in and support for tribal transit planning and services at the state level. Finally, this chapter concludes with innovative approaches implemented by several tribes to fund their systems. Funding Tribal Transit Programs

Funding Type Eligible Activity Service Population Grant Allocation Apportion-ment Operating Capital Other Page # 1 US Department of Transportation Federal Transit Administration (FTA) 195 a Major Capital Investment Program (5309) X X General 196 b Job Access and Reverse Commute Formula Program (5316) C F M X X X Low Income 197 c New Freedom Program (5317) X X X Disabled 198 d Over the Road Bus Program C X X Operators 198 e Public Transportation – Tribal Transit Program [5311(c)] C F F C X X Tribal 199 f Rural and Small Urban Areas Program (5311) X X X X Rural 199 g Transportation For Elderly and Persons with Disabilities Program (5310) X X X Elderly, Disabled 200 h Paul S. Sarbanes Transit in Parks Program (5320) X X X General 201 i Livable Communities Initiative C F F X General Federal Highway Administration (FHWA) 201 a Congestion Mitigation / Air Quality Improvement Program (CMAQ) X X X X General 203 b Indian Reservation Roads Program (IRR) X X X X Tribal 204 c Park Roads and Parkways Program X X General 204 d Public Lands Highway Program (PLH) C F F X X X X General 205 e Surface Transportation Program (STP) X X X X General 206 f Transportation Enhancement Program X X X General 2 Other Federal Programs a US Department of Agriculture 206 a.1 Rural Passenger Transportation Technical Assistance Program C X Rural 207 a.2 Community Development Transportation Lending Services, Inc. (CDTLS) X X X Rural, Urban 208 a.3 Tribal Passenger Transportation Technical Assistance Program C X Rural b US Department of Commerce 209 b.1 Economic Development Administration (EDA) Grants C X Rural, Urban c US Department of Education 210 c.1 Vocational Rehab Services for American Indians with Disabilities C X X X Tribal d US Department of Housing and Urban Development 210 d.1 Indian Housing Block Grants F X Tribal e US Department of Health and Human Services 211 e.1 Community Services Block Grant Program F X Low Income 212 e.2 Head Start Program X X Pre-School 212 e.3 Medicaid Program X X Low Income, Disabled 213 e.4 Programs for American Indian, Alaska Native and Native Hawaiian Elders F X X X Tribal Elders 213 214 e.5 Rural Health Outreach Grant Program C X X Rural e.6 Social and Economic Development Strategies (SEDS) Program/ Administration for Native Americans (ANA) C X X X Tribal 214 e.7 Special Programs for the Aging-Title III, Part B: Grants for Supportive Services and Senior Centers F X X Elderly, Rural 215 e.8 Special Programs for the Aging-Title III, Part C: Grants for Nutrition Services F X Elderly 215 e.9 Tribal Self-Governance – Indian Health Services Program X X X X Tribal 216 e.10 Tribal Temporary Assistance for Needy Families Program F F X X X Tribal f US Department of Labor 216 f.1 The Senior Community Service Employment Program X X X X Senior 217 f.2 Workforce Investment Act Programs C X X Tribal Grant = A federal financial assistance award making payment in cash or in kind for a specified purpose. F = Formula-based (usually to states); C = competitive/discretionary; M = mixed. Allocation = An administrative distribution of funds for programs that do not have a statutory distribution formula. Apportionment = The distribution of funds as prescribed by a statutory formula. (Loans) (State determination) (State determination) Table 8.1. Federal funding for tribal transit programs.

94 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook Table 8.1 lists a variety of federal grant programs. It is important to recognize the specific local match requirements that vary within a grant for capital projects, operating projects, and project administration. The federal share usually is higher for capital projects that are geared toward providing access for bicycles to transit facilities, installing equipment for transporting bicycles on transit vehicles, for vehicle-related equipment to comply with the Americans with Disabili- ties Act (ADA), or vehicle-related equipment to comply with the Clean Air Act. In Appendix C, each program or grant discussed has a callout to the side of the page that gives the percentage of federal participation in the grant. The balance is expected to come from local funding sources. Depending on the grants, non-DOT federal funds may or may not be permitted to be used for the local match. Although a range of federal and state grants are available, many tribes may not have enough in local matching funds to qualify for these grants. Also, many tribes have high indirect cost rates for providing a service. Tribes have to assess whether it is feasible to go after some of these grants. When applying for a grant, it also is important to note the reporting requirements for the grant. The time and resources expended in reporting may exceed the value of the grant or program funds received. Potential Local Funding Sources Farebox Revenue and Suggested Donations Farebox revenue and suggested donations are considered income and cannot be used as local share for the project in which they are earned. However, they can be deducted from total oper- ating cost to determine the net operating cost. Keeping track of the farebox revenue and its recovery ratio helps a tribe measure the transit program’s particular financial and operating efficiencies. Such tracking also helps in setting or adjusting the fare level. The farebox recovery ratio is the proportion of the amount of revenue generated through fares or suggested donations to its total operating cost. Innovative Approaches to Local Funding A successful transit operation requires a constant and reliable stream of funds to cover its operating and capital costs and contingencies. A federal grant, such as through Federal Transit Administration Section 5311, provides critical seed money but is not intended to cover all costs over the life of the service. Moreover, the federal grant typically requires a local match, which may be as much as 50 percent of the initial award. If the grant is processed through the state, depending on local criteria, the match requirement may be higher or the award may be less than if processed directly through a federal agency. Additionally, the needs and preferences of the grant applicant are not factors in the decision-making process. Determinations on the timing, duration, and size of the award are at the discretion of the granting agency. These critical factors are controlled by others. Therefore, counterbalancing the uncertainties of the government grant process necessitates the casting of a wide net over a diverse stream of funding resources. Tribes with successful transit programs have found innovative ways to obtain funding to use as the local match to obtain government grants. Several of these innovative approaches are described in this section. Funding innovations undertaken by tribal governments may be characterized by source as follows: • Internal sources: These funds are allocated by the tribal government through its general fund or its business enterprises to support the transit operation. The funds may serve as local match to a government grant or, in some cases, may attract funds from other sources.

Funding tribal transit programs 95 • Partnership sources: These funds are contributed by local, regional, county, or state stake- holders with an interest in ensuring that the tribal transit operation succeeds. • Grant matching sources: These funds are drawn from one grant source to match or supple- ment, where permissible, funds from another grant source. Internal Sources Internal fund sources are derived directly from the tribal government to support its transit operation. They typically represent funds appropriated from its general fund or from one or several of the for-profit business enterprises owned and controlled by the tribe. • In 2007, the Confederated Salish and Kootenai Tribes (CSKT) in Montana opened Quick Silver, a full-service gas station, luncheonette, and laundry facility. Revenues from this tribal business are used to match government grants that support CSKT’s transit service. CSKT is planning a facility where the maintenance on all 200 vehicles owned by the tribe will be done. The staff of the planned maintenance facility will do oil changes on all these vehicles. Money generated from the facility will be used as local match to obtain grants. • Tribal government funds from the Squaxin Island Tribe in Washington State are used as 50 percent match to government operating grants in support of its transit operation. • The Winnebago Tribe in Nebraska bills its casino enterprise $2.00 monthly for each trip taken by a casino employee on its tribal transit system. The monthly casino payments cover some of the system’s operating cost. • The Seminole Nation in Oklahoma matches Section 5310 operating grants with more than $79,000 from tribal general funds. • The Leech Lake Gaming Division of the Leech Lake Band of Ojibwe provides transportation that is financed solely through tribal gaming revenues. Leech Lake Gaming Transportation provides transit service for the residents of Leech Lake, employees, and guests going to and from their casinos. • Standing Rock Public Transportation (SR Transportation) has been operated by the tribally chartered Sitting Bull College since 1989. Sitting Bull College and the Standing Rock Sioux Tribe both provide local matching funds for operating SR Transportation. SR Transportation also has begun providing automobile maintenance service and tire sales to the public to increase revenue. This is a unique combination of a for-profit and a not-for-profit business model. Partnership Sources Funding partnerships involve agencies and organizations outside of the tribal transit organi- zation that support or partially subsidize the tribal transit operation. Their financial contribu- tions are in proportion to their use of the service, and the terms are usually written down in a service agreement contract. Funding partners typically have a stake in the enterprise, wanting it to supplement their own transportation programs or provide essential rides and mobility for their program clientele. • Menominee Regional Public Transit (MRPT) is operated by the Menominee Indian Tribe in Wisconsin. Financial support for the service comes from a synergistic partnership of agencies located on and off the reservation. The funding partnerships have enabled MRPT to diver- sify its ridership base and extend its operation off the reservation. According to Menominee Director of Transit Services Shawn Klemens, establishing our partnerships was a win-win, as contract dollars that were negotiated for the partnerships were essentially used to apply for additional grants to support the service designed. We also created a transportation advisory committee which all stakeholders, not just partners, are invited to the table to discuss transportation issues. • MRPT’s partnership arrangements include the following: – MRPT uses Bureau of Indian Affairs (BIA) Indian Reservation Roads (IRR) allocations as match to government transit grants. MRPT also has on-reservation transit service coor-

96 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook dination agreements with the Title VI Elder Program and the College of the Menominee Nation. – MRPT also provides school children transportation under contract with the Menominee School. – MRPT maintains another important partnership with the Menominee Health Clinic. Non- emergency transportation once provided by the clinic is now provided by MRPT. These trips have increased from 1,897 to 17,478 per year over time and MRPT’s service now extends off-reservation to additional health care facilities. – MRPT has a service coordination agreement with Menominee County Human Services and is poised in 2011 to provide similar service to Langlade County to the north. The Langlade County payment, using state funds, will serve as local match to a Section 5311 grant. – MRPT anticipates future service coordination agreements with Shawano County to the south and the Stockbridge-Munsee Community, Band of Mohican Indians to the west. An example of the combination of funds used to support the tribal transit operation is shown in Table 8.2. • Road Runner Transit is operated by the Southern Ute Indian Tribe in Colorado. According to Peter Tregillus, program director of Community Action Programs, partnerships that assist in covering costs are expected by tribal government. Tregillus states, “The tribe funding is steady, but since it is a public transit [service], the tribe expects us not to be totally reliant on them, but to get financial support from other local stakeholders.” • The system obtains funds through outreach to stakeholders and through advertising. Support for Road Runner Transit from La Plata County, for example, increased from $4,300 in 2002 to $42,189 in 2008. Funds from the nearby town of Bayfield increased from $24,000 to $37,623 over the same period. With these partnership arrangements, Road Runner passenger-trips doubled, from 10,123 in 2006 to 20,452 in 2008, as did its revenue service-hours, from 2,104 to 4,523. Road Runner Transit’s farebox revenue increased from $17,000 in 2006 to $24,500 in 2008. An example of the combination of funds used to support the Road Runner tribal transit operation is shown in Table 8.3. Source: Menominee Indian Tribe of Wisconsin, 2010. Partnership Source Amount Description Menominee Indian Tribe of Wisconsin $407,072 Tribal government funds. Menominee Clinic Funds $138,996 Local clinic service coordination agreement funds. Menominee County $79,176 County service coordination agreement using state WS 85.21 funds allocated by the state and matched with county funds at 20 percent. State of Wisconsin/Menominee Aging Agency $22,500 State WS 85.215 funds do not require match and are designated only for Indian tribes in Wisconsin. They represent gaming revenue tribes pay to the state. The Statewide Tribal Council lobbied the legislature to set aside these funds just for tribal elderly transportation. Each tribe receives $22,500. MRPT negotiated a memorandum of understanding (MOU) with the Menominee Aging agency for this amount. The funds are used to match Section 5311 grants. Bureau of Indian Affairs $100,000 BIA funds used to match capital grants. Table 8.2. MRPT Section 5311 partnership fund sources.

Funding tribal transit programs 97 • The Confederated Salish and Kootenai Tribes (CSKT) provide general public transit services on the reservation. This tribal transit program has been successful in receiving local funding from a variety of sources. The Salish and Kootenai College, which operates its own bus service for students to access classes and programs, has partnered with DHRD Transit. DHRD Transit now provides most of the transportation for the college and is reimbursed for the trips pro- vided. The tribal health clinic also reimburses DHRD Transit for trips, and DHRD Transit has an informal agreement with the Lake County Council on Aging to refer and help with rides. • The Standing Rock Sioux Tribe in North Dakota have negotiated an arrangement in which stakeholder organizations purchase tickets to give to their patrons and clientele for free transit trips on the tribe’s transportation system. Twelve organizations regularly purchase the tickets. Some of these organizations are faith-based; others are health care and social service agencies. The ticket program provides additional operating funds and fosters a sense of ownership and connection to the transit service. In October 2009, the South Dakota Department of Transportation (South Dakota DOT) paired SR Transportation with a local non-tribal community (Mulbridge) to provide devi- ated fixed-route service. The community is interested in contracting with SR Transporta- tion to provide rides to school for children, which is a completely new type of service for SR Transportation. • Cherokee Transit of the Eastern Band of Cherokee Indians works with various local agen- cies and receives revenues through agency contracts such as the Vocational Opportunities of Cherokee, Inc., the Senior Citizens Program, and occasionally from Tribal Childcare and Tsali Care Center. Cherokee Transit has instituted a token program through which other departments or programs can purchase tokens good for one ride and give them out to their clients in need. One example is the Indian Health Service (IHS) hospital, which has had a hard time purchasing transportation due to contractual requirements. IHS is able to pur- chase 100 tokens for $90. The tokens can be kept at the nurses’ station and at the emergency department for patients who do not have the money for a bus fare home. Some innovative programs implemented by Cherokee Transit allow clients to buy tickets or passes directly to access needed services. Partnership Source 2006 2007 2008 Federal Transit Administration (FTA) Section 5311 $76,000 $131,880 $153,228 Southern Ute Indian Tribe 52,916 61,800 63,509 Town of Ignacio 1,600 1,800 3,000 Town of Bayfield 30,207 36,623 37,623 La Plata County 24,800 24,800 42,189 Advertising 3,311 2,400 2,400 Forest Lakes Metro District 0 0 1,500 FTA New Freedom 0 0 30,800 Total 190,840 261,310 336,257 Source: Southern Ute Community Action Program, 2009. Table 8.3. Example of Road Runner Transit partnership fund sources.

98 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook – The Parent Pass Program enables children between the ages of 12 and 16 years to travel anywhere within the Qualla Boundary. Parents must sign a release form and provide a list of destinations to which the transit department is allowed to transport their children. The drivers can take them to those destinations. Children use the service to get to school, work, and for recreation purposes. – The Garnishment for Passes program serves enrolled members of the tribe who can use their casino profit (garnishment check) to buy passes. Individuals who are court-ordered to enroll in Alcoholics Anonymous or at treatment centers, who have court dates, or who are looking for work usually use this program. During the last 6 months, the tribe has made $7,000 from this program alone. • The Fort Peck Assiniboine and Sioux Tribes have cooperative agreements with Fort Peck Hous- ing, the work program, community services, the elder care program, and Roosevelt County Council on Aging as well as agreements with the Valley Transit program in Valley County. The Fort Peck Transit program also coordinates with St. Lutheran Home and the Poplar Swing Bed (formerly a nursing home) to provide trips for their residents and be reimbursed by these agen- cies for providing those trips. The tribal transit program also coordinates with the Indian Health Service (IHS) and Community Health Representatives (CHR) to provide some local transporta- tion. These agencies have their own vehicles but they do not have wheelchair-accessible vehicles, which the tribal transit program can provide. According to Fort Peck Transit management, tribal matching dollars also come from the tribe’s general fund. • Resource extraction is another innovative local funding source. If a tribe receives revenues from natural resource extraction, a portion of those revenues can be used as local match to provide transportation for employees who work in the area. Transportation provided for this purpose can be expanded to provide general public transit services in the area. Future revenue from resource extraction can support not only social and community services for the tribe, but also public transportation services. • Where tourism occurs on land owned by the tribe, a lodging tax can be implemented. Revenue from tourism can be used as an important element of the local transit funding formula. A lodging tax can be considered a specialized sales tax placed only upon lodging bills. Taxation of this type has been used successfully in Park City, Utah; Sun Valley, Idaho; Telluride, Colorado; and Durango, Colorado. A lodging tax is imposed only on overnight visitors. Day visitors and residents do not contribute to this transit funding source. Funds raised from the lodging tax can be used toward general public transit services provided in the area. Grant Matching Sources Tribes may also use grant funds that they and their partners are awarded as leverage when applying for additional grants. • Concerned by the delay in receiving a Section 5311(c) award for its rideshare program, the Stillaguamish Tribe of Indians in Washington State used a portion of its BIA-IRR allocation to cover the gap in funding. Executing a BIA planning contract, the tribe received $410,000 to purchase nine rideshare vehicles. The tribe then applied for and received an additional $220,000 through the BIA-IRR American Recovery and Reinvestment Act of 2009 (ARRA) stimulus program, which enabled the purchase of three additional vehicles. The eventual receipt of the 5311(c) funds will supplement the BIA grants. • Community RIDE (also called “the RIDE”)—a rural bus service in Sitka, Alaska, operated by the Sitka Tribe of Alaska (STA), provides another noteworthy example of grant matching. The service is not administered by the tribe, but rather by a nonprofit umbrella agency, the Center for Community (CFC). As a nonprofit, CFC receives Section 5311 grants that cover two-thirds of the cost to operate Sitka Transit, including the Ride. The remaining one-third is covered with BIA-IRR and Section 5311(c) grants received by the STA as a federally recognized tribe.

Funding tribal transit programs 99 Sitka Transit paratransit services are operated by the community’s senior center, Southeast Senior Services (SESS). SESS is subsidized in part with Title III (Older American Act) funds. As the administering agency, CFC coordinates the funds and contracts the bus service to the STA and the paratransit service to SESS. This unique collaboration of a nonprofit agency, the tribe, and the senior center has increased access to traditional and nontraditional grant sources. • Citylink is a free public bus service operated by the Coeur d’Alene Tribe in Idaho. The service began modestly with one route on the reservation. Today the system serves the reservation and most of northern Idaho. Citylink ridership grew from 18,700 to 555,565 in 5 years. – Citylink’s rapid expansion is the direct result of a funding partnership termed the “Co- alition of the Willing,” involving several agencies. Shortly after receiving its first federal transit grant, the tribe collaborated with Kootenai County, which also wanted to institute a public bus service. With the common objective of increasing rural and urban mobility throughout northern Idaho, a coalition was formed representing the Coeur d’Alene Tribe, Kootenai County, the Kootenai County Metropolitan Planning Organization (KMPO), the Panhandle Area Council, and the Idaho Department of Transportation (Idaho DOT). – The partnership pools and leverages the Section 5307, 5310, and 5311 grants that each agency receives, achieving a higher use of the grants than if they were retained separately by each agency. – The “Coalition of the Willing” partnership continues, but the Coeur d’Alene Tribe is now seeking a higher level of participation from the local towns, cities, and agencies that benefit but do not pay for the service. According to Tribal Chairman Chief Allan, “I believe there are other ways to fund our public transportation needs, some of which may involve adding or increasing the contributions of city and county governments, North Idaho College, the local chambers of commerce, and Kootenai Medical Center.” An example of the combination of funds currently supporting the tribal bus service is shown in Table 8.4. As noted, a greater diversity of agency and community funds will be required in the future. Funding Amount* Partnership Source FTA Section 5311 $235,301 Idaho Department of Transportation FTA Section 5311 $108,635 Tribal match FTA Section 5307 $96,699 Kootenai County (transfer of its Section 5307 to Section 5311) Tribal Match $8,407 Tribal match to Section 5307 ($96,699), which was transferred to Section 5311 FTA Section 5307 $555,036 Section 5307 Kootenai County funds FTA Section 5307 $399,380 Tribal match FTA Section 5309 $558,113 FTA grant for bus maintenance garage Tribal Match $111,623 Tribal match to Section 5309 funds FTA Section 5311(c) $225,000 FTA Tribal Transit Grant Total $2,298,194 * 1-year data (FY2007). Source: Grant Management Office of the Coeur d’Alene Tribe. Table 8.4. Example of Citylink partnership fund sources.

100 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook Tribal Transit a Community Resource Tribal transit is an important community resource. Tribal transit financing has evolved over time because of the successful practices described herein and also because of the growing recog- nition that tribal transit services have become and are becoming essential community resources. This evolution is illustrated by Citylink, which began with local tribal funds; grew with federal, state, and county partnerships; and now, because of its success as a regional carrier, is acknowl- edged as a transportation lifeline and subsidized by a growing number of local and regional beneficiaries. Leveraging their services as essential community resources also has heightened the marketing and funding sophistication of the MRPT and Road Runner Transit systems. Compliance and Reporting Requirements FTA Compliance Requirements A request for Federal Transit Administration (FTA) funding commits the tribal organization to a series of legal, regulatory, and administrative requirements. These requirements are met in four phases, as follows: 1. Pre-application 2. Application 3. Grant reporting 4. Grant close-out This section describes each of the four phases, then addresses the compliance requirements of FTA’s Tribal Transit Program, Section 5311(c). The specific requirements will depend on whether the tribe applies directly to FTA or through the state and whether the tribe is a direct recipient from FTA or a subrecipient through one or more states. If the tribe is applying for funding through the state, the tribe should contact the appropriate state office to determine specific requirements. Pre-Application Process Before submitting a request for FTA funding, an applicant must follow pre-application guide- lines. These initial steps ensure project compliance with federal rules and laws. Once performed, they facilitate the processing of the grant application. Project inclusion in area plans: This process is applicable to tribes in urban areas. If possible, the project should be coordinated with area transportation plans and services. The purpose of this requirement is to minimize any duplication of federally supported projects within the service area. The project must be part of a federally approved statewide transportation improve- ment program (STIP) or tribal transportation improvement program (TTIP). If planning is involved, it should also be part of the Unified Planning Work Program (UPWP) of the area transportation planning agency, such as the Metropolitan Planning Organization (MPO). These requirements may vary, based on the size and complexity of the project. Applicants seeking guid- ance should contact the FTA Regional Office for their area. If the applicant anticipates using Section 5310, 5316, 5317, or 5311 funds through the state (does not apply for 5311(c)), the project should be part of a Locally Developed, Coordinated Public Transit, Human Services Transportation Plan that is approved by FTA and the Federal Highway Administration (FHWA). This approval ensures the project complements and sup- ports current social and human service programs within the local service area. National environmental policy: Compliance with the requirements of the National Environ- mental Policy Act of 1969 (NEPA) also is important. These requirements are explained in more

Funding tribal transit programs 101 detail in Chapter 6. The purpose of this requirement is to ensure that the project does not harm the environment. Most rural and small transit projects meet the NEPA criteria for a categorical exclusion (CE) and, once so designated, require no further action. If the possibility of an envi- ronmental impact exists, however, it must be documented in accordance with NEPA guidelines. Assistance with this determination may be obtained from the local or state transportation agency or FTA Regional Office. Certifications and assurances: Each fiscal year, FTA publishes a list of certifications and assurances in the Federal Register. Before submitting a grant application, the applicant must comply with each provision on the list shown in Table 8.5. The applicant should maintain cur- rent, signed copies of each certification and assurance should a compliance issue arise during or after the grant award. For some tribes, these certifications and assurances have been an issue of tribal sovereignty, as discussed in Chapters 1 and 10. Civil rights submissions: The applicant must comply with civil rights laws. Its organization must have the following written plans and administer the following programs: • Title VI Plan, which provides policies and procedures that prohibit discrimination on the basis of race, color, or national origin in programs or activities receiving federal financial assistance • Equal Employment Opportunity (EEO) Program, which ensures fair and equal employment practices • Disadvantaged Business Enterprise (DBE) Program, which involves certified DBEs in the organization’s contracting • An Americans with Disabilities Act (ADA) Paratransit Plan, if applicable, which ensures equal access to federally assisted transportation services for people with disabilities These administrative documents must be submitted to the FTA Regional Civil Rights Offi- cer for approval and updated annually. The applicant must maintain signed copies of the FTA approvals should a civil rights issue arise during or after the grant award. Certification of protective labor arrangements: Direct recipients of FTA grants are required to affirm in writing to the Department of Labor (DOL) that their project complies with protec- tive labor regulations. Section 5311 grantees are not subject to this requirement. The applicant must check with the FTA Regional Office to determine compliance. Transferred funds: If the applicant anticipates fund transfers from FHWA to FTA, the request should be communicated to the FTA Regional Office. The applicant also should notify the state transportation agency, which holds the obligated FHWA funds. The state will formally request FHWA to transfer the funds to FTA. A checklist of these six pre-application steps is shown in Table 8.6. Application Process Once the pre-application requirements have been satisfied, FTA assigns a grant number to the project. The applicant may now enter the online FTA Transportation Electronic Award Management (TEAM) system. A TEAM User Guide with step-by-step instructions is available at http://ftateam web.fta.dot.gov/static/userguide.html. The balance of this section provides a brief summary of the information entered into the TEAM system, along with a checklist (Table 8.7). Recipient information: Using the TEAM system, data are entered about the applicant organi- zation, including address, contact information, union information (if applicable), urbanized area identification number (if applicable), congressional district(s), and the applicant’s Data Universal Numbering System (DUNS) number. The information must be updated as changes occur.

102 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook Table 8.5. FTA compliance requirements: certifications and assurances (2011). Assurance of Authority: The applicant, its authorized representative, and its attorney affirm they have adequate authority under applicable state, local, or Indian tribal law and regulations to execute and file the grant application and the certifications and assurances. They also affirm they have the authority to execute grant agreements and cooperative agreements with FTA. Standard Assurances: The applicant assures compliance with applicable federal statutes and regulations in carrying out the project and with the terms and conditions of the FTA grant agreement or cooperative agreement, including the FTA Master Agreement. Intergovernmental Review Assurance: Except if the applicant is an Indian tribal government seeking assistance authorized by 49 U.S.C. 5311(c)(1), the applicant assures that each application for federal assistance has been submitted or will be submitted for intergovernmental review to the appropriate state and local agencies as determined by the state. Nondiscrimination Assurance: As required by Title VI of the Civil Rights Act of 1964 and U.S. DOT Nondiscrimination in Federally Assisted Programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act, the applicant assures compliance with this law and its regulations so that no person on the basis of race, color, national origin, creed, sex, or age will be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination in any program or activity for which the applicant receives federal assistance. Assurance of Nondiscrimination on the Basis of Disability: As required by U.S. DOT Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance regulations, the applicant assures that no qualified person with a disability shall be, solely by reason of that disability, excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in any program or activity receiving or benefiting from federal assistance. Suspension and Debarment: In accordance with U.S. DOT Nonprocurement Suspension and Debarment regulations and U.S. Office of Management and Budget (OMB) Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement), the applicant certifies that it and its principals, including its first-tier subrecipients: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded or disqualified from covered transactions by any federal department or agency; (b) Have not within a 3-year period been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public transaction or contract under a public trans- action; violation of any federal or state antitrust statute; or commission of embezzlement, theft, forgery, bribery, falsification, or destruction of records, making any false statement or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a govern- mental entity with commission of any of the offenses listed above; (d) Have not within a 3-year period had one or more public transactions terminated for cause or default. U.S. OMB Assurances: The applicant assures it has legal authority to apply for federal assistance and has the institutional, managerial, and financial capability to assure proper planning, management, and completion of the project described in its application. Moreover, assurance is given that the applicant will: - Give FTA, the Comptroller General of the United States, and, if appropriate, the State access to and the right to examine all records, books, papers, or documents related to the award; - Establish a proper accounting system in accordance with generally accepted accounting standards or agency directives;

Funding tribal transit programs 103 - Establish safeguards to prohibit employees from personal or organizational conflicts of interest or personal gain; - Initiate and complete wo rk wi thin the applicable project time periods follo wi ng receipt of FTA approval; - Comply wi th all applicable federal statutes relating to nondiscrimination; - Comply wi th the requirements of Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 , wh ich provide for fair and equitable treatment of persons displaced or persons w hose propert y is acquired as a result of federally assisted programs; - Comply wi th the Davis-Bacon Act , the Copeland “Anti-Kickback ” Act, and the Contract Work Hours and Safety Standards Act regarding labor standards for federally assisted projects; - Comply wi th the flood insurance purchase requirements of the Flood Disaster Protection Act of 1973 , requiring the applicant and its subrecipients in a special flood hazard area to purchase flood insurance if the total cost of insurable construction and acquisition is $10,000 or more; - Comply wi th the Lead-Based Paint Poisoning Prevention Ac t , wh ich prohibits the use of lead-based paint in the construction or rehabilitation of residence structures; - Not dispose of, modif y the use of, or change the terms of the real propert y title or other interest in the site and facilities on wh ich a construction project supported with FTA assistance takes place wi thout instructions from FTA; - Record the federal interest and include a covenant in the title of real proper ty acquired in wh ole or in part wi th federal assistance funds to assure nondiscrimination during the useful life of the project; - Comply wi th FTA provisions concerning the drafting, revie w, and approval of construction plans and specifications of any constructio n project supported wi th FTA assistance; - Provide and maintain compet ent and adequate engineering supervision of an y construction project supported wi th FTA assistance and furnish progress reports and related information as may be required by FTA or the state; - Comply wi th any applica ble environmental standards that may be prescribed to implement the National Environmental Policy Act of 1929 and other such related federal and state environmental la ws . - Comply wi th the Hatch Act , which limits the political activities of state and local agencies and their officers and employees whose primary employment activities are financed in wh ole or part wi th federal fun ds . - Comply wi th the National Research Act and U.S. DOT regulations Protection of Human Subjects , regarding the protection of human subjects involved in research, development, and related activities supported by federal assistance; - Comply wi th the Animal Welfare Act and U.S. Department of Agriculture Animal Welfare regulations, regarding the care, handling, and treatment of wa rm-blooded animals held or used for research, teaching, or other activities supported by federal assistance; - Have performed the financial and compliance audits as required by the Single Audit Act Amendments of 1996 , U.S. OMB Circular A-133: Audits of States, Local Governments, and Non-Profit Organi za ti ons; - Comply wi th all applicable provisions of all other federal la ws or regulations and foll ow the directives governing them. Note: Table 8.5 presents a summary of FTA’s Fiscal Y ear 2011 Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements. The full text describing each provision is available at http://fta.dot.gov/12825_12194.html .

104 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook Project information: This section of the award management system collects data about whether the project is a new grant, a grant amendment, or a budget revision, along with project costs. Also entered are the project start and end dates, its transportation improvement program (STIP or TTIP) inclusion date, the MPO concurrence date (if applicable), and the Executive Order 12372 review date, if applicable. (Executive Order 12372, Intergovernmental Review of Federal Programs, requires federal consultation with state and local governments on decisions involving grants and other forms of financial assistance. Under the order, states, in consultation with their local governments, design their own review processes and select the federal finan- cial assistance activities they wish to review. The date of any such review must be entered into TEAM.) The grant project costs also are entered. Project description: This section involves a description of the project with sufficient detail to assist FTA review on eligibility. If several projects (called program of projects, or POP) are part of the application, each project should be listed. If there are subrecipients, they should be identified and their activities entered. Project Inclusion in Area Plans Part of state or tribal Transportation Improvement Program? If planning involved, part of local agency Unified Planning Work Program? If Section 5311, part of Locally Developed, Coordinated Public Transit, Human Services Transportation Plan? National Environmental Policy Is project Categorical Exclusion (CE)? If no, is classification determined? Has required analysis been performed with findings? Is NEPA documentation completed? Certifications and Assurances Obtained and reviewed current FTA certifications/assurances? Are all certifications/assurances signed and filed? Civil Rights Compliance Title VI Plan current and FTA approved? EEO and DBE Programs current and FTA approved? ADA Paratransit Plan, if applicable, current and FTA approved? Protective Labor Compliance Department of Labor requirements apply? Obtained guidance from FTA Regional? Transferred Funds If fund transfer needed—FTA Regional Office and state DOT notified? Have funds been obligated? Table 8.6. FTA compliance requirements: pre-application checklist.

Funding tribal transit programs 105 Part 1 – Recipient Information Annual certifications and assurances entered? Applicant contact and organization information complete? Urbanized area (UZA) identification number and congressional district entered (if applicable)? Union contact information entered (if applicable)? Civil rights program documentation approved by FTA? Applicant DUNS number entered in the appropriate field? Part II – Project Details Does the project description (including the POP) include information on each subrecipient? Part III – Project Information (Complete Applicable Fields) New application or amendment? Start and end date? Approval date of the TIP and UPWP (if applicable)? Control totals entered? If pre-award authority is applicable, has “yes” been selected? Has the EO 12372 review been completed (if applicable)? Part IV – Budget Are alternative line item (ALI) codes entered correctly? Have funding percentages been verified to ensure the federal funds are not over the allowable share? Does the funding amount entered match financial information entered in the Project Information field, for federal funds and local match? Does the rolling stock (vehicle) line item contain accurate information such as description and fuel type? Details: Has descriptive information been added for each ALI, identifying the items being funded within the line item? If the grant contains funding to tribal governments, has the “non-add scope” been entered? Part V – Project Milestones Are milestones listed for each ALI? If an ALI does not have milestones, have they been added? Estimated completion dates entered? Part VI – Environmental Findings (NEPA) Environmental finding entered for each ALI? Table 8.7. FTA compliance requirements: TEAM grant application checklist. Program information: This section is a confirmation that the project is included in a current TIP by noting the TIP page(s) on which the project is listed. The date of the most recent FTA-FHWA TIP approval is entered along with the approval date of the UPWP (if applicable). Budget: The project budget is described using alternative line items (ALIs). All sources of project funds are identified and confirmed. The project activities are entered. All rolling stock procurements are identified and include vehicle descriptions and fuel types. Fleet expansion requests are entered with justification text. For tribal transit funds, such as Section 5311, the appli- cant must enter “non-add scope 992-00” and the amount of funding allocated to each tribe. Assis-

106 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook tance with this line item in the TEAM system may be obtained from the FTA Regional Office, which should have advance notice of the Tribal 5311 request and any fund transfers. Project milestones: This section covers the estimated completion dates for important stages of the project. If milestones are not automatically pre-populated by FTA’s software, the add function can be used to insert them. Environmental findings: The NEPA classification of the project is recorded with supporting documentation. Fleet status: Fleet status information typically is not required for Section 5311 grant applications. For most other grants, however, an accounting of fleet assets is entered. Grant approval: Once FTA determines the application is compliant and the TEAM data entries are approved, the grant is awarded and the grant funds are obligated. Typically a Master Agreement document is prepared by FTA and signed by the applicant. Implementation: FTA Purchasing Rules FTA produces the Best Practices Procurement Manual to assist transit agencies in following federally mandated approaches to purchasing. The manual discusses every aspect of the proj- ect, from solicitation of bids and contract administration through close-out. Of special note is Chapter 8 of the manual, which discusses contract clauses. Depending on the type of services being rendered, only some of these clauses may be required in the request for proposals (RFP). Appendix A of the Best Practices Procurement Manual provides a clause-by-clause discussion of the applicability of each of the 31 clauses. This section of the guidebook presents information about some of the most commonly appli- cable contract clauses. Buy America: This clause applies to the acquisition of goods or rolling stock for the grantee and subcontractors. The clause says that federal funds may not be obligated unless steel, iron, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted. Appropriate Buy America certification must be submitted with all bids for FTA-funded contracts. Charter bus requirements: Organizations receiving FTA assistance are prohibited from pro- viding charter service using federally funded equipment or facilities if an existing charter service is willing and able to provide these services. If charter service is provided under one of the excep- tions, it must not interfere with or detract from the provision of mass transportation. School bus requirements: Organizations receiving FTA assistance may not engage in school bus operations exclusively for the transportation of students and school personnel in competi- tion with private school bus operators. Clean water requirements: All contractors must comply with applicable standards and regu- lations pursuant to the Federal Water Pollution Control Act. The contractor must also agree to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with FTA assistance. Clean air requirements: All contractors must comply with applicable standards and regula- tions pursuant to the Clean Air Act. The contractor also must agree to include these require- ments in each subcontract exceeding $100,000 financed in whole or in part with FTA assistance. Civil rights: The contractor must agree not to discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. Disadvantaged business enterprises (DBEs): The DBE program applies to all DOT-assisted contracting activities. Each agency should have a DBE goal for participation. A formal clause

Funding tribal transit programs 107 must be included in all contracts above the micro-purchase level. Please note that some states have different DBE goals or processes. According to the Federal Register, DOT issued a num- ber of changes to its DBE regulations (Fed. Reg. Vol. 76, No. 19, Jan. 28, 2011). Among those changes, DOT amended its regulation to make it easier for DBEs certified in one state to have their certification adopted by other states. As of January 1, 2012, states are required to comply with these certification amendments. In tribal transit, DBE comes up primarily when dealing with contracts on construction of a facility or other capital improvements. Drug and alcohol testing: The drug and alcohol testing clause must be present in all opera- tional service contracts. All subcontractors must adhere to guidelines established by FTA for drug and alcohol testing. The actual testing and monitoring of these rules can be done in numer- ous ways, depending on the most appropriate means between the agency and subcontractor. Appendix A of the Best Practices Procurement Manual outlines three ways in which this goal may be accomplished. The entire Best Practices Procurement Manual may be accessed in various media at the follow- ing online address: http://www.fta.dot.gov/funding/thirdpartyprocurement/grants_financing_ 6037.html. FTA Reporting Once the grant is awarded and the Master Agreement has been signed, the tribal government commits to reporting requirements, most of which are performed using the TEAM system. FTA requires this reporting to determine whether • the purpose of the grant is being achieved; • the project is progressing on time and within budget; • the grantee is demonstrating competence and control in executing the project; • the project meets all program requirements; and • there is a problem which may require FTA resources to resolve. Reporting requirements for state-administered FTA funding programs are similar, but the specific requirements are established by each state. This section of the guidebook describes the grant reporting requirements, which are also summarized in Table 8.8. Financial status reports: The Financial Status Report (FSR) submitted in TEAM must be prepared using the accrual basis of accounting; that is, income is recorded when earned instead of when received and expenses are recorded when incurred instead of when paid. The FSR must contain all project financial data and activity (e.g., expenditures and obligations) for the report- ing period. Supporting documentation should be maintained by the grantee. Milestone progress reports: The Milestone Progress Report (MPR) is a narrative entered electronically in TEAM. It collects information about the following items: • Status of each open ALI • Description of project status including problems encountered in implementation • Discussion of any budget or schedule changes • Dates of expected or actual requests for bid or delivery of service • Completion dates for completed milestones • Any revised estimated milestone completion dates when original dates are not met • Explanation of why milestone completion dates were not met, narrative describing how the problems will be solved, and discussion of the expected impacts from the delays • Analysis of significant project cost variances • Acceptance of equipment and construction with a breakout of the costs incurred and the costs required to complete the project

108 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook • A list of outstanding claims exceeding $100,000 and all claims settled during the reporting period, along with a description of estimated costs and reasons for the claims • A list of potential and executed change orders, with description on amounts exceeding $100,000 • A list of claims or litigation involving third-party contracts that – have a value exceeding $100,000; – involve a controversial matter, regardless of amount; or – involve a highly publicized matter, regardless of amount • A list of real property acquisitions, including just compensation, property(s) under litigation, administrative settlements, and condemnation for each parcel during the reporting period Report due dates: Grantees in urbanized areas with more than 200,000 in population submit the FSR and MPR quarterly. Grantees in urbanized areas with fewer than 200,000 in population submit annually. All Section 5309 grantees, regardless of location and population area, must submit quarterly reports when grants involve construction. Transit enhancement reports: Transit enhancement reports must be submitted by grantees receiving Urbanized Area Formula Program (Section 5307) funds. A report listing the projects performed during the previous fiscal year and the amounts expended is required in the fourth- quarter MPR. Report Description Frequency Grant Type 1. Financial Status Report (FSR) Project financial data prepared on the accrual basis of accounting Quarterly Urbanized Area Grant > 200,000 Annual Non-Urbanized Grant < 200,000 2. Milestone Progress Report (MPR) Narrative on status of every aspect of the project Quarterly Urbanized Area Grant > 200,000 Annual Non-Urbanized Grant < 200,000 3. Transit Enhancements Report Summary of enhancement projects from the previous fiscal year Annual - 4th Quarter MPR Section 5307 4. Civil Rights Reports EEO Report Equal opportunity compliance activities Triennial Grantees with 50+ employees and $1M+ FTA funding Title VI Report Anti-discrimination and environmental justice activities Triennial All DBE Report Disadvantaged business contracting activities Triennial Grantees awarding prime contracts = $250,000+ 5. National Transit Database (NTD) Report Operational and financial characteristics of transit project Annual All 6. Significant Events Report Unforeseen events that impact the project As necessary All 7. Electronic Clearing House Operation System (ECHO- Web) Way to process reimbursement requests As needed All Table 8.8. FTA compliance requirements: grant reporting.

Funding tribal transit programs 109 Civil rights reports: Grantees must report, on a triennial basis, their compliance with • Circular 4702.1, Title VI and Title VI Dependent Guidelines for FTA Recipients; • FTA EEO Circular; and • FTA DBE regulations. It should be noted that EEO reporting requirements apply to grantees with 50 or more employ- ees and receiving $1 million or more of FTA assistance, and that DBE goal-setting requirements apply to grantees awarding prime contracts (excluding vehicle purchases) exceeding $250,000 in FTA funds in any given year. If applicable, DBE goals must be submitted to the FTA Regional Civil Rights Office annually. Reports of significant events: Unforeseen events that have an impact on the schedule, cost, capacity, usefulness, or purpose of the project must be reported immediately. Such events include • problems, delays, or adverse conditions affecting the grantee’s ability to achieve project objec- tives within the scheduled time period or within the approved project budget, or • favorable developments that will enable the grantee to achieve project goals and complete project activities ahead of schedule or at lower cost. When unforeseen events with a negative impact are reported, the report should discuss actions taken or contemplated, and any federal assistance needed, to resolve the situation. National Transit Database reporting: FTA grant recipients must enter their transit operating and financial data annually to the National Transit Database (NTD). The NTD was established by Congress as the primary source for information and statistics on the transit systems of the United States. This reporting requirement is described at http://www.ntdprogram.gov/. Tribal transit systems receiving Section 5311 funds through the state must report to the state for the rural NTD report. Tribes which are direct recipients of funds from FTA must report directly to the NTD. Electronic Clearing House Operation System (ECHO-Web). ECHO-Web is an FTA computer-based system used by FTA grantees to process reimbursement requests. It allows FTA to electronically make payments to its grantees’ bank accounts. Questions about the ECHO-Web can be directed to the Transportation Program Specialist from your FTA Regional Office. A summary of grant reporting requirements appears in Table 8.8. Grant Close-Out Grant close-out signifies that all project activities have ended and the federal funds have been expended. This section summarizes the responsibilities of the grantee and FTA in the close-out process. Grantee responsibilities: Close-out documentation must be submitted within 90 days of the completion of grant activities. The grantee must notify FTA by letter or e-mail that the grant is ready for close-out. The grantee must enter the following information into TEAM: • A final budget reflecting actual project costs by scope and activity and a final FSR • A final MPR with description and completion date for each ALI and a list of project property purchased under the grant • A request to de-obligate any unexpended balance of federal funds • Any other reports required in the terms and conditions of the grant Project records must be retained, generally for 3 years. The starting date for record retention is the date of submission of the final FSR. The record retention period for equipment begins when

110 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook the equipment is disposed, replaced, or transferred. In some cases, grantees must report income after a grant is closed. Here the retention period starts from the end of the fiscal year in which the income is earned. If any litigation, claim, negotiation, audit, or other action involving the project records occurs before the expiration of the 3-year retention period, they must be retained an additional 3 years after completion of the action. FTA responsibilities: FTA may unilaterally initiate grant close-out at any time. Circum- stances for close-out include the following: • Grantee failure to comply with the terms or conditions of the grant agreement or other federal requirements • Project continuation would not produce results commensurate with further expenditure of funds • Funds are no longer needed to accomplish the grant purpose • Failure by the grantee to make reasonable progress to complete the grant activities • Determination that the project has been essentially completed or that approved funds have been substantially drawn down Any adjustments to the federal share of cost are made after FTA receives and reviews the close- out information. Adjustments may continue after the required OMB Circular A–133 project audit is performed. Tribal Transit Program Master Agreement The compliance requirements described in the previous section apply to all FTA grant recipi- ents. For the one FTA grant program designated for tribal governments—the Tribal Transit Program, Section 5311(c)—compliance and reporting are essentially the same. There are no material differences except that tribes must sign the FTA Tribal Transit Program Master Agree- ment (TTP Master Agreement). Selected provisions from this agreement are excerpted and reproduced below. Ellipses indicate breaks in the excerpted copy. The full version of the agree- ment is available at http://www.fta.dot.gov/documents/2011-TTP-Master_Agreement.doc. Excerpts from the FTA Tribal Transit Program Master Agreement Section 1: Definitions This section of the TTP Master Agreement provides definitions such as the following: (j) Grant Agreement, for purposes of the Tribal Transit Program, means the instrument by which FTA awards federal assistance to a specific Indian Tribe to support a particular project in which FTA does not take an active role or retain substantial control. The Grant Agreement consists of the FTA Award estab- lishing the specific parameters of the Tribal Transit Project, an execution statement signed by the Indian Tribe, and may include additional Special Conditions, Special Requirements, or Special Provisions. (k) Indian Tribe, as used in this Tribal Transit Program Master Agreement, means a federally recognized Indian Tribe that receives Tribal Transit Program assistance authorized by 49 U.S.C. § 5311(c)(1) directly from FTA to support its Tribal Transit Project. As used in this Tribal Transit Program Master Agreement, “Indian Tribe” means a Grantee or Recipient of Tribal Transit Program assistance. Section 2: Project Implementation This section of the TTP Master Agreement advises that tribal laws may conflict with federal laws and vice versa. The section also explains tribal government responsibilities when subcontracting all or a portion of its transit services to subrecipients or third-party providers.

Funding tribal transit programs 111 c. Application of Federal, State and Local Laws, Regulations, and Directives (2) State, Territorial, and Local Law. Should a federal law preempt the Indian Tribe’s laws, regulations, or ordinances, the Indian Tribe must comply with the federal law and implement federal regulations. No provision of the Grant Agreement for the Tribal Transit Project or this Tribal Transit Program Master Agreement, however, requires the Indian Tribe to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of its tribal laws, regulations or ordinances, or an applicable state, territorial, or local law, regulation, or ordinance. If compliance with any provi- sion of Grant Agreement for the Tribal Transit Project or this Tribal Transit Program Master Agreement would require the Indian Tribe to violate its tribal laws, regulations or ordinances, or any applicable state, territorial, or local law, regulation, or ordinance, the Indian Tribe agrees to notify FTA immediately in writing. Should this occur, FTA and the Indian Tribe agree that they will make appropriate arrangements to proceed with or, if necessary, terminate the Tribal Transit Project expeditiously. . . . e. The Indian Tribe’s Responsibility to Extend Federal Requirements to Other Entities (1) Entities Affected. Only entities that are signatories to the Grant Agreement for the Tribal Transit Project are parties to that Grant Agreement. To achieve compliance with certain federal laws, regulations, or directives, however, other entities participating in the Tribal Transit Project, (such as a subrecipient, lessee, third-party contractor, or other participant at any tier of the project) will necessarily be affected. Accordingly, the Indian Tribe agrees to take the appropriate measures necessary to ensure that all project participants comply with applicable federal laws and regulations, and follow federal directives affecting project implementation, except to the extent FTA determines otherwise in writing. In addition, if another entity is expected to fulfill responsibilities typically performed by the Indian Tribe, the Indian Tribe agrees to assure that the entity carries out the Indian Tribe’s responsibilities as set forth in the Grant Agreement for the Tribal Transit Project or this Tribal Transit Program Master Agreement. Section 8: Reporting, Record Retention, and Access This section of the TTP Master Agreement advises compensation of the executive officers of the tribe and its subrecipients under certain conditions. (2) Reporting Sub-awards and Executive Compensation (b) Reporting Total Compensation of Indian Tribe Executives. 1 Applicability and what to report. The Indian Tribe agrees to report total compensation for each of its five most highly compensated executives for the preceding completed fiscal year, if— a The total federal funding authorized to date under this award is $25,000 or more; b In the preceding fiscal year, the Indian Tribe received— i. 80 percent or more of the Indian Tribe’s annual gross revenues from federal procurement contracts (and subcontracts) and federal financial assistance . . . ; and ii. $25,000,000 or more in annual gross revenues from federal procurement contracts (and subcontracts) and federal financial assistance . . . 2 Where and when to report. The Indian Tribe agrees to report executive total compensation . . . a As part of the Indian Tribe’s registration profile at http://www. ccr.gov. b By the end of the month following the month in which this award is made, and annually thereafter . . . . . . (d) Exemptions. If, in the previous tax year, any Indian Tribe had gross income, from all sources, under $300,000, that Indian Tribe is exempt from the requirements to report: 1 Sub-awards, and 2 The total compensation of the five most highly compensated executives of any subrecipient.

112 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook Section 13: Planning and Private Enterprise This section of the TTP Master Agreement requires coordination of the tribal project with other transportation and social service programs. (1) General. The Indian Tribe agrees that its Tribal Transit Project will be consistent with documents, including a formal plan, if any, provided to FTA in support of the development and basis of the Tribal Transit Project. In addition, the Indian Tribe agrees that the Tribal Transit Project is or will be coordi- nated with transportation service assisted by other federal sources to the maximum extent feasible. (2) Governmental and Private Nonprofit Providers of Non-emergency Transportation. In addition to providing opportunities to participate in planning, to the extent feasible the Indian Tribe agrees to comply with the provisions of 49 U.S.C. § 5323(k), which afford governmental agencies and nonprofit organizations that receive federal assistance for non-emergency transportation from federal government sources (other than U.S. DOT) an opportunity to be included in the design, coordination, and planning of transportation services. FTA Master Agreement The FTA Master Agreement is a comprehensive agreement that summarizes the statutory and regulatory requirements that apply to each FTA-funded project. The full version of the agree- ment is available at http://www.fta.dot.gov/documents/15-Master.pdf. Excerpts from the FTA Master Agreement Section 1: Definitions As for the TTP Master Agreement, this section of the FTA Master Agreement provides defini- tions, such as the following: (j) Grant Agreement means the instrument by which FTA awards federal assistance to a specific recipient to support a particular project in which FTA does not take an active role or retain substantial control. The Grant Agreement consists of the FTA Award establishing the specific parameters of the project, an execution statement signed by the recipient, and may include additional Special Conditions, Special Requirements, or Special Provisions. (k) Local Government includes a public transportation authority, as well as a county, municipality, city, town, township, special district, council of governments, public corporation, board, or commission established under the laws of a state (whether or not incorporated as a private nonprofit organization under state law), regional or interstate government entity, Indian tribal government, or any agency or instrumentality thereof. Section 2: Project Implementation This section of the FTA Master Agreement explains recipients’ responsibilities to comply with the terms of their grant agreement for the project. Specific provisions include the following: c. Application of Federal, State, and Local Laws, Regulations, and Directives (2) State, Territorial, and Local Law. Should a federal law preempt a state, territorial, or local law, regulation, or ordinance, the recipient must comply with the federal law and implementing regulations. Nevertheless, no provision of the Grant Agreement or Cooperative Agreement for the Project, or this Master Agreement requires the recipient to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of state, territorial, or local law, regulation, or ordinance. Thus, if compliance with any provision of the Grant Agreement or Cooperative Agreement for the Project, or this Master Agreement violates or would require the recipient to violate any state, territorial, or local law, regulation, or ordinance, the recipient agrees to notify FTA immediately in writing. Should this occur, FTA and the recipient agree that they will make appropriate arrangements to proceed with or, if necessary, terminate the Project expeditiously. . . .

Funding tribal transit programs 113 e. Recipient’s Responsibility to Extend Federal Requirements to Other Entities (1) Entities Affected. Only entities that are signatories to the Grant Agreement or Cooperative Agreement for the Project are parties to that Grant Agreement or Cooperative Agreement. To achieve compliance with certain federal laws and regulations, in accordance with applicable federal direc- tives, however, other entities participating in the Project through their involvement with the recipi- ent, (such as a subrecipient, lessee, third-party contractor, or other participant) will necessarily be affected. Accordingly, the recipient agrees to take appropriate measures necessary to ensure that all project participants comply with all applicable federal laws and regulations, and follow applicable federal directives affecting project implementation, except to the extent FTA determines otherwise in writing. In addition, if an entity other than the recipient is expected to fulfill any responsibilities typi- cally performed by the recipient, the recipient agrees to assure that the entity carries out the recipient’s responsibilities as set forth in the Grant Agreement or Cooperative Agreement for the Project or this Master Agreement. Section 8: Reporting, Record Retention, and Access This section of the document explains recipients’ responsibilities to submit reports and other information in the format specified by FTA. During the course of the project and 3 years there- after, the recipient should maintain this information. a. Types of Reports. The recipient agrees to submit to FTA all reports required by federal laws and regu- lations, in accordance with federal directives, the Grant Agreement or Cooperative Agreement for the Project, this Master Agreement, and any other reports FTA may specify, except to the extent that FTA determines otherwise in writing. Section 13: Planning and Private Enterprise This section of the FTA Master Agreement requires coordination of the project with other federal planning projects, and coordination with other DOT and non-DOT transportation providers. a. General. The recipient agrees to implement the project consistent with the plans developed in accor- dance with the following federal planning and private enterprise provisions: (1) 49 U.S.C. 5303, 5304, 5306, and 5323(a)(1); (2) Joint FHWA/FTA regulations, “Statewide Transportation Planning; Metropolitan Transporta- tion Planning,” 23 C.F.R. Part 450 and 49 C.F.R. Part 613 and any later amendments thereto, and (3) FTA regulations, “Major Capital Investment Projects,” 49 C.F.R. Part 611, to the extent that those regulations are consistent with the SAFETEA-LU amendments to the public transportation planning and private enterprise laws and, when promulgated, any later amendments to those regulations. b. Governmental and Private Nonprofit Providers of Non-emergency Transportation. In addition to providing opportunities to participate in planning as described in Subsection 13.a of this Master Agree- ment, to the extent feasible the recipient agrees to comply with the provisions of 49 U.S.C. § 5323(k), which afford governmental agencies and nonprofit organizations that receive federal assistance for non- emergency transportation from federal government sources (other than U.S. DOT) an opportunity to be included in the design, coordination, and planning of transportation services. State Program Reporting Requirements Tribal governments may receive FTA transit grants directly from the federal government (as direct recipients) or they may request these grants through state governments (as subrecipi- ents). In the latter situation, the state enters into a written agreement with each subrecipient. The agreement describes the terms and conditions of the project. As direct recipients, states generally comply with the requirements discussed in this guidebook’s section on FTA compli- ance requirements. There are minor differences, such as the flexibility offered to states in their accounting methods, equipment management, and procurement practices. State responsibility

114 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook and requirements under Section 5311, Formula Grants for Other than Urbanized Areas, are discussed here. State Management Plan The state must prepare a State Management Plan (SMP) that describes the state policies and procedures for administering the Section 5311 program. The policies of the Section 5310, 5316, and 5317 programs typically are included in the same document. All states must have an approved SMP on file in the FTA Regional Office. Financial Management State financial management systems: States may account for grant funds under their current laws and procedures. The fiscal control and accounting procedures of the state and its subre- cipients must be sufficient to • permit preparation of reports as required in federal reporting, and • permit the tracing of funds to a level of expenditures adequate to establish the funds have been used as intended. State financial records: FTA does not maintain detailed financial records on individual proj- ects. Financial records, supporting documentation, and all other records are retained by the designated state agency and its subrecipients. The financial records must be available for a period of 3 years from the date the state electronically submits its final FSR. The computation of the federal share and the required local match for each project must be documented. Reporting Requirements Annual program of projects status reports: The state must report annually on the status of each active grant. Civil rights compliance issues occurring during the year, such as Title VI, EEO, or DBE complaints against the state (or its subrecipients), are addressed in the report. The state also reports the accomplishments and issues for each subrecipient. MPRs: The state submits annual MPRs for its projects and its subrecipient projects. FSRs: The state submits annual financial reports for active grants. DBE reports: If the state receives planning, capital, or operating assistance and awards prime contracts exceeding $250,000 in FTA funds during a fiscal year, the state must have a DBE pro- gram and goal. This requirement also applies to state subrecipients. NTD Reports: The state is responsible for ensuring subrecipients comply with NTD reporting. Grant Close-Out States must initiate project close-out with its subrecipients within 90 days after project funds are expended and activities have ended. The states must similarly initiate close-out of programs within the required time period. This information is submitted electronically via TEAM. Audit States are responsible for ensuring that audits are performed consistent with the requirements of OMB Circular A–133: Audits of States, Local Governments, and Non-Profit Organizations. Audits of subrecipients are not required when assistance has been provided solely in the form of capital equipment procured directly by the state. In all other cases, the audit is required.

Funding tribal transit programs 115 Real Property Subrecipients may use state staff appraisers to prepare independent appraisals of real property, if and as required. Construction Management and Oversight FTA does not approve subrecipient design plans for construction projects. The responsibility for construction management and oversight lies with the state. Equipment Management Under the common grant rule, a state may use, manage, and dispose of equipment acquired under a Section 5311 grant in accordance with its procurement laws and procedures. Specifically: Vehicle useful life and replacement standards: FTA does not apply to the state-administered Section 5311 program its policies regarding useful life standards for vehicles, vehicle replace- ment, or the requirement to use the straight-line depreciation method for determining fair market value and FTA reimbursement. Instead, FTA holds states responsible for establishing and implementing their own rolling stock requirements for all categories of vehicles acquired under the Section 5311, 5310, 5316, or 5317 programs. For these programs only, FTA permits states to • establish their own minimum useful life standards for vehicles; • use their own procedures for determining fair market value; and • develop their own policies and procedures for maintenance and replacement of vehicles. Disposition: States and their subrecipients follow state laws and procedures for disposing of equipment. States are not required to return to FTA proceeds from the disposition of equip- ment, regardless of the fair market value at the time the equipment is sold, but should follow their own procedures regarding the use of proceeds, so long as the proceeds remain in use for public transit purposes. This applies to all equipment purchased with Section 5311 funds. Continuing Control and Responsibility When capital equipment or facilities are acquired, built, or improved for use by any entity for a federally supported transportation service, there must be provisions for the continuing control of these assets. The state is ultimately responsible for compliance with this requirement. When vehicles or other equipment acquired with Section 5311 funds are operated by an entity other than the subrecipient, control and responsibility for the operation of the vehicles or equip- ment must remain with the subrecipient unless the state authorizes transfer of the control and responsibility to another subrecipient. Procurement Although the federal threshold for small purchases is $100,000, the state may set a lower threshold for itself and its subrecipients. At minimum, state procurement practices must comply with five federal requirements, as follows: 1. For rolling stock, a 5-year limitation on the contract period of performance. 2. A requirement for full and open competition. 3. A prohibition against geographic preferences. 4. The use of Brooks Act procedures for procurement of architectural and engineering services if the state has not adopted a statute governing procurement of such services. (The Brooks Act requires that architects and engineers be selected using a process based on qualifications and not on price.) 5. Inclusion in contracts of clauses required by federal statutes and executive orders and their implementing regulations.

116 Developing, enhancing, and Sustaining tribal transit Services: a Guidebook Subrecipients that are governmental authorities (such as local or tribal governments), private nonprofit organizations, and private for-profit organizations also must comply with these pro- curement rules. States are responsible for their compliance. For More Information Federal Transit Administration. Job Access and Reverse Commute Formula Program. http:// www.fta.dot.gov/grants/13093_3550.html. Federal Transit Administration. New Freedom Program. http://www.fta.dot.gov/grants/ 13093_3549.html. Southern, V. J. Tribal Transportation Best Practices Guidebook. Publication No. FHWA-HEP- 10-005, U.S. Department of Transportation, Federal Highway Administration, Washington, D.C., 2009. http://www.tribalplanning.fhwa.dot.gov/bestPractices_guidebk.aspx. CityLink Asks Others to Pay Their Share. Indian Country. Today Media Networks, February 2011. http://indiancountrytodaymedianetwork.com/2011/01/30/citylink-asks-others-to-pay- their-share-14733. Federal Transit Administration. State Transit Program Manager’s Guide: Administration & Oversight of FTA Grant Programs. U.S. Department of Transportation, Washington, D.C., 2008. http://www.fta.dot.gov/documents/State_Program_Guide_May_2008.pdf. Federal Transit Administration. Fiscal Year 2011 Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements. U.S. Department of Transportation, Washington, D.C. http://fta.dot.gov/12825_12194.html. Exec. Order No. 12372, Intergovernmental Review of Federal Programs. http://knowledge.fhwa. dot.gov/ReNEPA/ReNepa.nsf/docs/7FE1D242CF0FE10E85256DC4004919FF?opendocument &Group=NEPA%20Process%20and%20Documentation&tab=REFERENCE. Burkhardt, J. E., et al. Comprehensive Financial Management Guidelines for Rural and Small Urban Transportation Providers. AASHTO Multi-State Technical Assistance Program, 1992. Burkhardt, J. E., et al. TCRP Report 101: Toolkit for Rural Community Coordinated Transportation Services. Transportation Research Board of the National Academies, Washington, D.C., 2004. Federal Transit Administration, Office of Planning and Office of Program Management. Guid- ance for Transit Financial Plans. U.S. Department of Transportation, Washington, D.C., 2000. http://www.fta.dot.gov/images/gftfp.pdf. Federal Transit Administration. National Transit Database (NTD). http://www.ntdprogram. gov/ntdprogram/ntd.htm. FTA Circular 9300.1B: Capital Investment Program Guidance and Application Instructions. http://www.fta.dot.gov/documents/Final_C_9300_1_Bpub.pdf. FTA Circular 9050.1: The Job Access and Reverse Commute (JARC) Program Guidance and Application Instructions. http://www.fta.dot.gov/documents/FTA_C_9050.1_JARC.pdf.

Funding tribal transit programs 117 FTA Circular 9045.1: New Freedom Program Guidance and Application Instructions. http:// www.fta.dot.gov/documents/FTA_C_9045.1_New_Freedom.pdf. Federal Transit Administration. Over-the-Road Bus Accessibility Program Grants. 75 Fed. Reg. 2583 (Jan. 15, 2010). http://edocket.access.gpo.gov/2010/pdf/2010-703.pdf. Federal Transit Administration. Over-the-Road Bus Accessibility Program Grants: Corrections. 75 Fed. Reg. 20034 (Apr. 16, 2010). http://edocket.access.gpo.gov/2010/pdf/2010-8963.pdf. Federal Transit Administration. Public Transportation on Indian Reservations Program; Tribal Transit Program. 71 Fed. Reg. 46959 (August 15, 2006). http://edocket.access.gpo.gov/2006/pdf/ 06-6911.pdf. FTA Circular 9040.1F: Nonurbanized Area Formula Program Guidance and Grant Application Instructions. http://www.fta.dot.gov/documents/FTA_C_9040.1F.pdf. FTA Circular 9070.1F: Elderly Individuals and Individuals with Disabilities Program Guidance and Application Instructions. http://www.fta.dot.gov/documents/C9070.1F.pdf.