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49:49:1.0.1.1.22.1.23.1 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM A Subpart A—General Provisions   § 29.1 What is the purpose and authority for this part? DOT       (a) The regulations in this part implement the Tribal Transportation Self Governance Program established in 23 U.S.C. 207 and set forth rules for compacts and funding agreements negotiated between the Department and Tribes eligible under the Program. (b) The Department prepared and issued these rules pursuant to 23 U.S.C. 207(n) with the active participation and representation of Tribes, Tribal organizations, consortia, and individual Tribal members, consistent with the procedures of the Negotiated Rulemaking Act.
49:49:1.0.1.1.22.1.23.2 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM A Subpart A—General Provisions   § 29.2 What is the Department's policy for the Program? DOT       It is the Department's policy to: (a) Recognize the unique government-to-government relationship with Tribes, including the right of Tribes to self-government, and to support Tribal sovereignty and self-determination; (b) Encourage Tribes to participate in the Program; (c) Affirm and enable the United States to fulfill its obligations to Tribes under treaties and other laws, and to ensure the continuation of the trust responsibility of the United States to Tribes and Indians that exist under treaties, other laws, and Executive orders; (d) Interpret Federal laws and regulations in a manner that will facilitate the inclusion of eligible funds in funding agreements under the Program to carry out Tribal PSFAs, except as otherwise provided by law; (e) Consult with Tribes directly and meaningfully on policies that have Tribal implications and affect the Program; (f) Acknowledge that Tribes perform PSFAs as an exercise of Tribal self-determination and self-governance; are responsible for day-to-day operation of PSFAs carried out under the Program; and accept responsibility and accountability for the use of funds and satisfactory performance consistent with the terms of funding agreements; and (g) Liberally construe this part to effectuate 23 U.S.C. 207 for the benefit of Tribes participating in the Program.
49:49:1.0.1.1.22.1.23.3 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM A Subpart A—General Provisions   § 29.3 What is the effect of this part on existing Tribal rights? DOT       (a) A Tribe may apply for the Program at any time, but nothing in this part requires a Tribe to do so. (b) A Tribe's decision to participate in the Program does not: (1) Affect, modify, diminish, or otherwise impair the sovereign immunity from suit enjoyed by the Tribe; (2) Terminate, waive, modify, or reduce the trust responsibility of the United States to the Tribe or individual Indians; or (3) Reduce the amount of the Tribe's formula or discretionary funding from the Department or impair the Tribe's ability to obtain funding from another Federal program.
49:49:1.0.1.1.22.1.23.4 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM A Subpart A—General Provisions   § 29.4 How do Departmental circulars, policies, manuals, guidance, or rules apply to a Tribe's performance under the Program? DOT       A Tribe's performance under the Program is not subject to any Departmental circular, policy, manual, guidance, or rule, except for this part, unless the Department and the Tribe otherwise negotiate and agree in the compact or funding agreement.
49:49:1.0.1.1.22.1.23.5 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM A Subpart A—General Provisions   § 29.5 Who is responsible for carrying out the functions connected with the Program? DOT       The Department will carry out the Program, including making eligibility determinations; negotiating compacts and funding agreements with Tribes; overseeing compliance with Department requirements; and otherwise administering and implementing the Program consistent with this part. As provided in § 29.402, a Tribe is responsible for day-to-day management of the Tribe's PSFAs consistent with the compact and funding agreement.
49:49:1.0.1.1.22.1.23.6 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM A Subpart A—General Provisions   § 29.6 Must the Department consult with Tribes regarding matters that affect the Program? DOT       The Department must consult with Tribes on matters relating to the Program. The Department will carry out consultations in accordance with Executive Order 13175 and applicable Department policies, including the Department's Tribal Consultation Plan.
49:49:1.0.1.1.22.1.23.7 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM A Subpart A—General Provisions   § 29.7 What is the effect of this Program on existing Tribal Transportation Program agreements? DOT       This Program does not terminate existing authority for a Tribe to enter into agreements with the Federal Highway Administration, or contracts or agreements with the Department of the Interior, for the Tribal Transportation Program. A Tribe may maintain its current contracts or agreements, or include Tribal Transportation Program funds in a funding agreement under this Program. A Tribe may only have one agreement at a time for the same funds.
49:49:1.0.1.1.22.1.23.8 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM A Subpart A—General Provisions   § 29.8 What happens if more than one party purports to be the authorized representative of a Tribe? DOT       If more than one party purports to be the authorized representative of a Tribe during the negotiation of a compact, funding agreement, or amendment, the Department will notify the parties, consult with the Department of the Interior, defer negotiation or execution of any documents, if necessary, until such authority is clarified, and provide written notice to the parties of the Department's decision to defer.
49:49:1.0.1.1.22.1.23.9 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM A Subpart A—General Provisions   § 29.9 What definitions apply to this part? DOT       Unless otherwise provided, the following definitions apply to this part: Appeal means a request by a Tribe for an administrative or judicial review of a decision by the Department. Self-Governance Official means a Department official responsible for overseeing the Program and carrying out the responsibilities set forth in this part. Compact means a legally binding and mutually enforceable written agreement between the Department and a Tribe entered into pursuant to 23 U.S.C. 207(c) and this part that sets forth the general terms that will govern the Tribe's participation in the Program and affirms the government-to-government relationship. Consortium means an organization or association of Tribes that is authorized by those Tribes to participate in the Program under this part and is responsible for negotiating, executing, and implementing compacts and funding agreements on behalf of its member Tribes. Consultation means the process by which the Department and Tribes engage in timely, substantive, and meaningful government-to-government communication, collaboration and participation, and exchange views in furtherance of the Federal trust responsibility and the principles of self-governance, before any action is taken that will have Tribal implications as defined by Executive Order 13175, in accordance with the Department's Tribal Consultation Plan, Executive Order 13175, all subsequent Presidential Memoranda regarding Tribal consultation, and applicable Federal law. Contractor means a third party who has entered into a legally binding agreement with a Tribe to provide goods or services. Days means calendar days. When the last day of any time period specified in this part falls on a Saturday, Sunday, or Federal holiday, the period shall carry over to the next business day unless otherwise prohibited by law. Department means the U.S. Department of Transportation. Discretionary or competitive grant means funds provided by the Department where it selects the award amount and recipients from among a…
49:49:1.0.1.1.22.10.40.1 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.900 What is the purpose of this subpart? DOT       This subpart sets forth procedures that a Tribe may use to resolve disputes with the Department arising before or after the execution of a compact or funding agreement. It also sets forth the process for filing and processing administrative appeals under this part.
49:49:1.0.1.1.22.10.40.10 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.909 When and how must the hearing official respond to the Tribe's appeal? DOT       (a) The hearing official must issue a decision in writing within 60 days of the receipt of the appeal. If the Tribe requests an informal hearing, the hearing official must issue a decision within 60 days of the hearing. (b) All decisions issued by the hearing official must include a statement describing the rights of a Tribe to appeal the decision to the U.S. District Courts. The Department must provide the decision to the Tribe by any method that provides a receipt.
49:49:1.0.1.1.22.10.40.11 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.910 What is the Department's burden of proof for appeals of pre-award decisions? DOT       The Department must demonstrate by clear and convincing evidence the validity of a pre-award decision, and that the decision is consistent with 23 U.S.C. 207.
49:49:1.0.1.1.22.10.40.12 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.911 What is the effect of a pending appeal on negotiations? DOT       A pending appeal of a pre-award decision will not prevent the Department from negotiating and executing the non-disputed, severable provisions of a compact or funding agreement or prevent the Department from awarding funds to the Tribe that may be included in a funding agreement.
49:49:1.0.1.1.22.10.40.2 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.901 Can the Department and a Tribe resolve disputes using alternative dispute resolution processes? DOT       At any time, the Department or a Tribe may request an informal process or an alternate dispute resolution procedure, such as mediation, conciliation, or arbitration, to resolve disputes. The goal of any such process (which may involve a third party) is to provide an inexpensive and expeditious mechanism to resolve disputes by mutual agreement instead of an administrative or judicial proceeding. The Department and the Tribe should resolve disputes at the lowest possible organizational level whenever possible.
49:49:1.0.1.1.22.10.40.3 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.902 Does the Equal Access to Justice Act apply to the Program? DOT       The Equal Access to Justice Act (EAJA), 5 U.S.C. 504 and 28 U.S.C. 2414, and the relevant implementing regulations (48 CFR 6101.30 and 6101.31; 49 CFR part 6) will apply if the Tribe's compact or funding agreement make these provisions applicable.
49:49:1.0.1.1.22.10.40.4 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.903 What determinations may not be appealed under this subpart? DOT       A Tribe may not appeal the following determinations under this subpart: (a) Waiver determination. A waiver determination made pursuant to § 29.534 is a final agency action subject to judicial review under the Administrative Procedure Act. (b) Disputes or appeals arising under other Federal laws. Decisions made under other Federal statutes, such as the Freedom of Information Act and the Privacy Act. Such decisions may be appealable under those statutes and their implementing regulations. (c) Selection and award decisions for discretionary or competitive grants. The Department's selection and level of funding decisions for discretionary or competitive grants are not subject to appeal.
49:49:1.0.1.1.22.10.40.5 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.904 What are pre-award decisions that a Tribe may appeal? DOT       A Tribe may appeal pre-award decisions, which include: (a) A decision whether to include a Department program in a funding agreement; (b) A decision whether an activity is an inherent Federal function; (c) A decision on a final offer before the Department and the Tribe enter into a compact or funding agreement; (d) A decision on a final offer before the Department and the Tribe execute an amendment modifying the terms of an existing compact or funding agreement; and (e) An eligibility determination.
49:49:1.0.1.1.22.10.40.6 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.905 To whom does a Tribe appeal a pre-award decision? DOT       A Tribe appeals a pre-award decision in accordance with the process in § 29.907 to a hearing official who was not involved in the initial decision and is appointed by the General Counsel of the Department.
49:49:1.0.1.1.22.10.40.7 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.906 Must a Tribe exhaust its administrative remedies before initiating a civil action against the Department in the U.S. District Courts for a pre-award decision? DOT       A Tribe must exhaust its administrative remedies before initiating a civil action against the Department in the U.S. District Courts, except a Tribe may appeal the rejection of a final offer directly to the U.S. District Courts in lieu of an administrative appeal.
49:49:1.0.1.1.22.10.40.8 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.907 When and how must a Tribe appeal a pre-award decision? DOT       (a) Unless a Tribe appeals, a pre-award decision becomes final 30 days after receipt by the Tribe. To appeal the pre-award decision, a Tribe must submit a written request to the Office of the General Counsel and the Self-Governance Official within 30 days of receiving the pre-award decision. The request must include a statement describing the reasons for appeal and any supporting documentation. (b) The Tribe may request to resolve the dispute using an alternative dispute resolution process before the hearing official issues a decision.
49:49:1.0.1.1.22.10.40.9 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.908 May a Tribe request an extension of time to file an administrative appeal? DOT       If a Tribe needs additional time, it may request an extension of time to file an appeal of a pre-award decision. Within 30 days of receiving a decision, a Tribe must request the extension from the Office of the General Counsel, which has the discretion to grant the extension, and notify the Self-Governance Official of the request. The request must be in writing and give a reason for not filing its administrative appeal within the 30-day period. The Department may accept an appeal after the 30-day period for good cause.
49:49:1.0.1.1.22.10.41.13 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.912 What is a post-award dispute? DOT       A post-award dispute is a claim that arises under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. 7101-7109. Such disputes arise once a compact or funding agreement is executed. Post-award disputes include: (a) Disputed interpretation of a provision of an executed compact or funding agreement; (b) Disallowance of costs under a funding agreement; (c) Suspension of payments under a funding agreement; (d) Allocation, distribution, or reduction of funds when a dispute arises between a consortium and a withdrawing Tribe; (e) Failure to comply with the terms of a funding agreement; and (f) Any other claim arising out of a compact or funding agreement.
49:49:1.0.1.1.22.10.41.14 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.913 What is a claim under the Contract Disputes Act? DOT       A Contract Disputes Act claim is a written demand filed by a Tribe that seeks one or more of the following: (a) Payment of a specific sum of money under the funding agreement; (b) Adjustment or interpretation of terms in a funding agreement; (c) Payment that is disputed as to liability or amount; (d) Payment that the Department has not acted upon in a reasonable time following a demand for payment; or (e) Any other claim relating to the terms of the compact or funding agreement.
49:49:1.0.1.1.22.10.41.15 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.914 How does a Tribe file a Contract Disputes Act claim? DOT       A Tribe must submit its claim in writing to the Self-Governance Official, who serves as the Department's awarding official for the purposes of Contract Disputes Act claims. The Self-Governance Official will document the receipt of the claim.
49:49:1.0.1.1.22.10.41.16 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.915 Must a Tribe certify a Contract Disputes Act claim? DOT       A Tribe must certify a claim for more than $100,000 in accordance with the Contract Disputes Act. The Tribe must certify that: (a) The claim is made in good faith; (b) Documents or data supporting the claim are accurate and complete to the best of the Tribe's knowledge and belief; (c) The amount claimed accurately reflects the amount the Tribe believes is owed; and (d) The individual making the certification is authorized to make the claim on behalf of the Tribe and bind the Tribe with respect to the claim.
49:49:1.0.1.1.22.10.41.17 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.916 Who bears the burden of proof in a Contract Disputes Act claim? DOT       The Tribe bears the burden of proof to demonstrate, by a preponderance of the evidence, the validity of a Contract Disputes Act claim.
49:49:1.0.1.1.22.10.41.18 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.917 What is the Department's role in processing a Contract Disputes Act claim? DOT       (a) The Department must document the date that the Self-Governance Official received the claim. (b) The Self-Governance Official must provide the Tribe with an opportunity to resolve the claim informally with assistance from Department officials who have not substantially participated in the disputed matter. Such informal mechanisms may include participating in dispute resolution pursuant to § 29.901. (c) If the Department and the Tribe do not agree on a settlement, the Self-Governance Official must issue a written decision on the claim by any method that provides a receipt.
49:49:1.0.1.1.22.10.41.19 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.918 What information must the Self-Governance Official's decision contain? DOT       (a) The Self-Governance Official's decision must: (1) Describe the claim or dispute; (2) Reference the relevant terms of the compact or funding agreement; (3) Set forth the factual areas of agreement and disagreement; and (4) Set forth the Self-Governance Official's decision, and provide the facts and reasons that support the decision. (b) The Self-Governance Official must provide the decision to the Tribe and describe the Tribe's appeal rights in language similar to the following: This is a final decision. You may appeal this decision to the Civilian Board of Contract Appeals (CBCA), 1800 F Street NW, Washington, DC 20245. If you decide to appeal, you must provide written notice within 90 days of receipt of this decision to the CBCA and provide a copy to the Self-Governance Official. The notice must indicate that an appeal is intended, and refer to the decision and contract number. Instead of appealing to the CBCA, you may bring an action in the U.S. Court of Federal Claims or U.S. District Courts within 12 months of the date you receive this notice. If you do not appeal a decision within one of these time periods, it is not subject to further review.
49:49:1.0.1.1.22.10.41.20 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.919 When must the Self-Governance Official issue a written decision on the claim? DOT       (a) If the claim is for less than $100,000, the Tribe may request that the Self-Governance Official issue a decision within 60 days of the date of receipt of the claim. If the Tribe does not request that the Self-Governance Official issue a decision within 60 days of the date of receipt of the claim, the Self-Governance Official must issue a decision within a reasonable time, which will depend on the size and complexity of the claim and the adequacy of the information provided in support of the claim. The Tribe must request a decision by the Self-Governance Official before seeking an appeal in accordance with paragraph (c) of this section. (b) If the claim is for more than $100,000, the Self-Governance Official must issue a decision within 60 days of the date of receipt of the claim or notify the Tribe of the time within which the Self-Governance Official will issue a decision. Such time frame must be reasonable, which will depend on the size and complexity of the claim and the adequacy of the information provided in support of the claim. (c) If the Self-Governance Official does not issue a decision within these time frames, a Tribe may treat the delay as a denial of its claim and appeal the decision in accordance with § 29.921.
49:49:1.0.1.1.22.10.41.21 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.920 Is a decision of the Self-Governance Official final? DOT       (a) A decision of the Self-Governance Official is final and conclusive, and not subject to review, unless the Tribe timely commences an appeal or suit pursuant to the Contract Disputes Act. (b) Once the Self-Governance Official issues a decision, the decision may not be changed except by agreement of the Department and the Tribe or under the following limited circumstances: (1) Evidence is discovered that could not have been discovered through due diligence before the Self-Governance Official issued the decision; (2) The Self-Governance Official learns that there has been fraud, misrepresentation, or other misconduct by a party; (3) The decision is beyond the scope of the Self-Governance Official's authority; (4) The claim has been satisfied, released, or discharged; or (5) Any other reason justifying relief from the decision. (c) If the Self-Governance Official withdraws a decision and issues a new decision, the Tribe may appeal the new decision in accordance with § 29.921. If the Self-Governance Official does not issue a new decision, the Tribe may proceed under § 29.919(c). (d) If a Tribe files an appeal or suit, the Self-Governance Official may modify or withdraw the final decision before a decision is issued in the pending appeal.
49:49:1.0.1.1.22.10.41.22 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.921 Where may the Tribe appeal the Self-Governance Official's decision on a Contract Disputes Act claim? DOT       The Tribe may appeal the Self-Governance Official's decision on a Contract Disputes Act claim in one of the following forums: (a) The Civilian Board of Contract Appeals. The appeal must be in accordance with the Board's implementing regulations in 48 CFR part 6101; (b) The U.S. Court of Federal Claims; or (c) The U.S. District Courts.
49:49:1.0.1.1.22.10.41.23 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.922 May a party appeal a Civilian Board of Contract Appeals decision? DOT       A party may appeal a decision of the Civilian Board of Contract Appeals within 120 days to the U.S. Court of Appeals for the Federal Circuit.
49:49:1.0.1.1.22.10.41.24 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.923 What is the effect of a pending appeal? DOT       (a) The Tribe must continue performance in accordance with the compact and funding agreement during the appeal of any claims to the same extent the Tribe would have performed had there been no dispute. (b) A pending dispute will not affect or prevent the negotiation or award of any subsequent compact or funding agreement between the Department and the Tribe.
49:49:1.0.1.1.22.10.42.25 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.924 May a Tribe appeal the Department's decision to terminate a compact or funding agreement? DOT       A Tribe may appeal the Department's decision to terminate a compact or funding agreement to the Department's Office of Hearings.
49:49:1.0.1.1.22.10.42.26 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.925 Is a Tribe entitled to a hearing on the record? DOT       (a) The Department must provide a Tribe with a hearing on the record for a non-immediate termination prior to or in lieu of the corrective action period set forth in the termination notice as described in § 29.802. (b) The Department must provide a Tribe with a hearing on the record for an immediate termination. The Department and the Tribe will work together to determine a mutually acceptable time and place for the hearing. The hearing on the record must commence no later than 10 days after the date of such termination or a later date upon mutual agreement. If feasible, the hearing may occur virtually or telephonically. If requested by the Tribe, the Department may arrange for an in-person hearing. (c) A Tribe may decline a hearing in writing.
49:49:1.0.1.1.22.10.42.27 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.926 What rights do the Department and a Tribe have in an appeal of a termination decision? DOT       (a) During the appeal of a termination decision, the Department and a Tribe have the right to: (1) A designated representative; (2) Present the testimony of witnesses, orally or in writing, who have knowledge of the relevant issues; (3) Cross-examine witnesses; (4) Introduce oral or documentary evidence, or both; (5) Receive, upon request and payment of reasonable costs, a copy of the transcript of the hearing, and copies of all documentary evidence that is introduced at the hearing; (6) Take depositions, request the production of documents, serve interrogatories on other parties, and request admissions; and (7) Any other procedural rights established under the Administrative Procedure Act. (b) An administrative law judge assigned by the chief administrative law judge of the Department's Office of Hearings must conduct hearings on the record for a termination decision unless the Tribe waives the hearing.
49:49:1.0.1.1.22.10.42.28 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.927 What notice and service must the Department and the Tribe provide? DOT       (a) The Department and the Tribe must file each document with U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. (b) The Department and the Tribe must serve copies of each document with: (1) The Self-Governance Official; and (2) The authorized Tribal representative.
49:49:1.0.1.1.22.10.42.29 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.928 What is the Department's burden of proof for a termination decision? DOT       The Department must demonstrate by clear and convincing evidence the validity of the grounds for the termination.
49:49:1.0.1.1.22.10.42.30 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.929 How will the Department communicate its decision following a hearing on a termination decision? DOT       After the hearing or any post-hearing briefing schedule established by the Department's Office of Hearings, the administrative law judge must send the Department and the Tribe the decision by any method that provides a receipt. The decision must contain the administrative law judge's findings of fact and conclusions of law on all the issues.
49:49:1.0.1.1.22.10.42.31 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.930 May the Department or the Tribe appeal the decision of an administrative law judge? DOT       (a) The decision of an administrative law judge is a recommended decision that the Department or the Tribe may appeal to the Secretary. (b) The decision of an administrative law judge becomes the final decision of the Secretary 60 days after it is served on the Department and the Tribe unless a petition for review is filed in accordance with § 29.931. The decision of the Secretary is a final agency action that the Tribe may appeal to the U.S. District Courts.
49:49:1.0.1.1.22.10.42.32 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.931 How can the Department or the Tribe obtain review of the recommended decision of an administrative law judge? DOT       (a) Time for filing. Within 30 days after service of any recommended decision of an administrative law judge, the Department or the Tribe may file a petition for review of the recommended decision with the Secretary. A copy must be served on the opposing party. (b) Service. Each document filed with or by the Secretary must be accompanied by a certificate of service specifying the manner in which and the date on which service was made with the Secretary and the opposing party. (c) Form and content of objections. The petition for review must set out separately and in detail each objection to the recommended decision, and the basis and reasons supporting such objection. The petition for review must state whether such objections are related to alleged errors of law or fact. The petition for review must also identify the relief requested. (d) Introduction of new information on review. If the Department or the Tribe fail to object to any errors in the recommended decision, the party waives the right to allege such error in subsequent proceedings. The petition for review may not set forth for the first time on brief to the Secretary any matters of law or fact that were not argued before the administrative law judge. (e) Reply briefs. An opposing party has 30 days from the date of service of the petition for review to file its reply brief. (f) Failure to file timely and adequate objections. Late filed petitions for review are not permitted, and incomplete objections will not be reviewed.
49:49:1.0.1.1.22.10.42.33 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.932 May a Tribe appeal the decision of the Secretary? DOT       The decision of the Secretary on the merits of a petition for review constitutes final agency action. A Tribe may appeal the decision to the U.S. District Courts.
49:49:1.0.1.1.22.10.42.34 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM J Subpart J—Dispute Resolution and Appeals   § 29.933 What is the effect of an appeal on negotiations? DOT       A pending appeal of a termination decision will not affect or prevent the award of another funding agreement or TTP Agreement. However, if the Department terminates all or a portion of a compact or funding agreement due to a finding of gross mismanagement or imminent jeopardy that is sustained on appeal, and the Tribe has not corrected the adverse findings, the Department has discretion to reject a proposal to award the Tribe a new funding agreement or provide new funds in an existing funding agreement.
49:49:1.0.1.1.22.2.23.1 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM B Subpart B—Eligibility and Negotiation Process   § 29.100 What are the criteria for eligibility to participate in the Program? DOT       (a) Eligibility. A Tribe is eligible to participate in the Program if— (1) The Tribe requests participation in the Program by resolution or other official action by the governing body of the Tribe; and (2) The Department determines, based on the evidence submitted by the Tribe, that, over the 3 most recent fiscal years, the Tribe has demonstrated financial stability and financial management capability, and transportation program management capability in accordance with the criteria specified in 23 U.S.C. 207(b) and this section. (b) Financial stability and financial management capability. In making the eligibility determination under 23 U.S.C. 207(b), the Department must determine that a Tribe demonstrates financial stability and financial management capability. To assist the Department in determining whether a Tribe meets the financial stability and financial management capability criterion, a Tribe must satisfy one of the following evidence standards: (1) Conclusive evidence. A Tribe subject to the Single Audit Act demonstrates financial stability and financial management capability by providing evidence establishing that, during the preceding 3 fiscal years, the Tribe had no uncorrected significant and material audit exceptions in the required annual audit of the Tribe's self-determination contracts or self-governance funding agreements with any Federal agency. This will be conclusive evidence that the Tribe has satisfied the financial stability and financial management capability criterion. (2) Sufficient evidence. A Tribe subject to the Single Audit Act that has a TTP Agreement, or a grant award provided by the Department may provide evidence establishing that, during the preceding 3 fiscal years, the Tribe had no uncorrected significant and material audit exceptions in its required single audit of the Tribe's Federal award programs. This will be sufficient evidence that the Tribe has satisfied the financial stability and financial management capability criterion. (3) Evidence without a mandat…
49:49:1.0.1.1.22.2.24.10 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM B Subpart B—Eligibility and Negotiation Process   § 29.109 Who is responsible for drafting the compact or funding agreement? DOT       It is the mutual obligation of the Department and the Tribe to draft the compact, funding agreement, or amendment. Either the Department or the Tribe may prepare the initial draft for the other party's review.
49:49:1.0.1.1.22.2.24.2 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM B Subpart B—Eligibility and Negotiation Process   § 29.101 How does a Tribe commence negotiations for a compact, funding agreement, or amendment? DOT       After the Department notifies a Tribe in writing that it is eligible to participate in the Program pursuant to § 29.100, the Tribe must submit a written request to the Self-Governance Official to begin negotiating a compact and funding agreement. A Tribe participating in the Program may submit a written request to the Self-Governance Official at any time to begin negotiating an amendment. A Tribe may send the request to ttsgp@dot.gov or use any other method that provides receipt.
49:49:1.0.1.1.22.2.24.3 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM B Subpart B—Eligibility and Negotiation Process   § 29.102 What information should a Tribe provide to the Department when it expresses its interest in negotiating a compact, funding agreement, or amendment? DOT       After the Department notifies a Tribe in writing that it is eligible to participate in the Program pursuant to § 29.100, the Tribe may express its interest in negotiating a compact, funding agreement, or amendment by written request. Such request need only request that the Department enter into negotiations for a compact, funding agreement, or amendment. To the degree the Tribe has the following information available to it, the request may include, as appropriate: (a) Whether the Tribe wants to negotiate a compact, funding agreement, or amendment; (b) The funding programs that the Tribe wants to include in the funding agreement or amendment; (c) The terms the Tribe wants to include in the compact, funding agreement, or amendment; (d) Any information or technical assistance the Tribe needs from the Department to assist in pursuing the negotiation process; and (e) The Tribal official with authority to negotiate on behalf of the Tribe, the designated Tribal contact, relevant contact information, and, if applicable, the name and contact information of an attorney authorized to represent the interests of the Tribe in the negotiation.
49:49:1.0.1.1.22.2.24.4 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM B Subpart B—Eligibility and Negotiation Process   § 29.103 How will the Department respond to a Tribe's written request? DOT       Within 15 days of receipt of a Tribe's written request, the Department will notify the Tribe in writing of the identity of the designated representative(s) of the Department who will conduct the negotiation and, to the extent feasible, will provide to the Tribe the information requested by the Tribe consistent with § 29.102(d).
49:49:1.0.1.1.22.2.24.5 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM B Subpart B—Eligibility and Negotiation Process   § 29.104 Must the Department and a Tribe follow a specific process when negotiating compacts, funding agreements, and amendments? DOT       The Department and a Tribe do not have to follow a specific process when negotiating compacts, funding agreements, and amendments. The Department and the Tribe should cooperate to develop a plan to address each issue subject to negotiation and provide the representatives an opportunity to address the Tribal proposals, legal or program issues of concern, the time needed to complete the negotiations, and the development of a term sheet.
49:49:1.0.1.1.22.2.24.6 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM B Subpart B—Eligibility and Negotiation Process   § 29.105 Will negotiations commence or conclude within a specified time period? DOT       Unless the Department and the Tribe agree otherwise, negotiations will commence within 60 days of the Department's receipt of the Tribe's written request to negotiate a compact, funding agreement, or amendment. The Department and the Tribe should make every effort to conclude negotiations within 90 days from the date on which negotiations commence, unless they agree to extend the time period for negotiations. Negotiations may proceed by electronic mail, teleconferences, or in-person meetings.
49:49:1.0.1.1.22.2.24.7 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM B Subpart B—Eligibility and Negotiation Process   § 29.106 What are best practices to pursue negotiations? DOT       (a) The Department and the Tribe should collaborate and provide a clear explanation of their positions and interests. Each party should provide timely and specific responses to proposals presented during negotiations in order to conclude negotiations as soon as possible within the period provided in § 29.105. (b) In negotiating the applicable construction, design, monitoring, or health and safety requirements that apply to the PSFAs the Tribe carries out using funds included in a funding agreement, along with the other terms set forth in § 29.307, the Department and the Tribe should cooperate and the Department will prioritize the reduction of administrative requirements on the Tribe when negotiating the terms of the compact, funding agreement, or amendment to effectuate Tribal self-governance. (c) The Department and the Tribe should conduct the negotiations in order to reach agreement on as many items as possible, and to refine unresolved issues in order to avoid disputed terms. The negotiations should conclude with mutually agreed upon terms and conditions. If any unresolved issues remain, the Tribe may submit a final offer to the Department under subpart C of this part.
49:49:1.0.1.1.22.2.24.8 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM B Subpart B—Eligibility and Negotiation Process   § 29.107 What recourse does the Department or the Tribe have if the negotiations reach an impasse? DOT       The Department and the Tribe should resolve disagreements informally and by mutual agreement whenever possible. If the Department and the Tribe are unable to reach agreement by the agreed upon date for completing negotiations, the Tribe may request to participate in an alternative dispute resolution process pursuant to § 29.901, or it may submit a final offer to the Self-Governance Official in accordance with subpart C of this part.
49:49:1.0.1.1.22.2.24.9 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM B Subpart B—Eligibility and Negotiation Process   § 29.108 May the Department and the Tribe continue to negotiate after the Tribe submits a final offer? DOT       The Department and the Tribe may continue negotiations after the Tribe submits a final offer by mutual agreement, and may execute the remaining terms of the compact, funding agreement, or amendment not subject to the final offer, consistent with § 29.213.
49:49:1.0.1.1.22.3.25.1 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.200 What is covered by this subpart? DOT       This subpart explains the final offer process for resolving, within a specific time frame, disputes that may develop in negotiation of a compact, funding agreement, or amendment.
49:49:1.0.1.1.22.3.25.10 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.209 On what basis may the Department reject a Tribe's final offer? DOT       The Department may reject a Tribe's final offer for any of the following reasons: (a) The amount of funds proposed in the final offer exceeds the applicable funding level to which the Tribe is entitled; (b) The subject of the final offer is an inherent Federal function that cannot legally be delegated to the Tribe; (c) Carrying out the PSFA would result in significant danger or risk to public health or safety; or (d) The Tribe is not eligible to participate in self-governance under section 23 U.S.C. 207(b).
49:49:1.0.1.1.22.3.25.11 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.210 How does the Department reject a final offer? DOT       The Department must reject a final offer by providing written notice to the Tribe based on the criteria in § 29.209 no more than 45 days after receipt of a final offer by the Self-Governance Official, or within a longer time period as agreed to by the Department and the Tribe consistent with this subpart. The notice must explain the basis for the rejection of the final offer.
49:49:1.0.1.1.22.3.25.12 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.211 Is technical assistance available to a Tribe to overcome rejection of a final offer? DOT       The Department must provide technical assistance to overcome the objections stated in the Department's rejection of a final offer.
49:49:1.0.1.1.22.3.25.13 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.212 May a Tribe appeal the rejection of a final offer? DOT       A Tribe may appeal the rejection of a final offer in accordance with §§ 29.904 through 29.911.
49:49:1.0.1.1.22.3.25.14 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.213 If a Tribe appeals a final offer, do the remaining provisions of the compact, funding agreement, or amendment not in dispute go into effect? DOT       If a Tribe appeals the rejection of a final offer, the Department and the Tribe may execute and make effective any non-disputed, severable provisions of the compact, funding agreement, or amendment that are not already executed and are not subject to appeal.
49:49:1.0.1.1.22.3.25.2 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.201 In what circumstances should a Tribe submit a final offer? DOT       If the Department and a Tribe are unable to agree, in whole or in part, on the terms of a compact, funding agreement, or amendment, the Tribe may submit a final offer to the Department.
49:49:1.0.1.1.22.3.25.3 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.202 How does a Tribe submit a final offer? DOT       (a) A Tribe must submit a written final offer to the Self-Governance Official to ttsgp@dot.gov or send the final offer using any other method that provides receipt to: Self-Governance Official, U.S. Department of Transportation, Office of the Secretary, Office of the Assistant Secretary for Governmental Affairs (I-10), 1200 New Jersey Avenue SE, Washington, DC 20590. (b) The final offer should be a separate document from the compact, funding agreement, or amendment and clearly identified as a “Final Offer—Response due within 45 days of receipt.”
49:49:1.0.1.1.22.3.25.4 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.203 What must a final offer contain? DOT       A final offer must contain a description of the disagreement between the Department and the Tribe, the Tribe's final proposal to resolve the disagreement, including any draft proposed terms to be included in a compact, funding agreement, or amendment, and the name and contact information for the person authorized to act on behalf of the Tribe. If the final offer is insufficient for the Department to make a decision, the Department will notify the Tribe and request additional information. A request for more information has no effect on deadlines for response.
49:49:1.0.1.1.22.3.25.5 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.204 How many days does the Department have to respond to a final offer? DOT       The Department has 45 days to respond to the final offer. The 45-day review period begins on the date the Self-Governance Official receives the final offer.
49:49:1.0.1.1.22.3.25.6 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.205 How does the Department acknowledge receipt of a final offer? DOT       Within 10 days of the Self-Governance Official receiving the final offer, the Department will send the Tribe an acknowledgement of the final offer, together with documentation that indicates the date on which the Self-Governance Official received the final offer. The Department's failure to send the acknowledgement does not constitute approval of the final offer.
49:49:1.0.1.1.22.3.25.7 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.206 May the Department request and obtain an extension of time of the 45-day review period? DOT       The Department may request an extension of time before the expiration of the 45-day review period. The Tribe may either grant or deny the Department's request for an extension. Any grant of extension of time must be in writing and signed by a person authorized by the Tribe to grant the extension before the expiration of the 45-day review period.
49:49:1.0.1.1.22.3.25.8 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.207 What happens if the Department takes no action within the 45-day review period (or any extensions thereof)? DOT       The final offer is accepted by operation of law if the Department takes no action within the 45-day review period (or any extensions thereof).
49:49:1.0.1.1.22.3.25.9 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM C Subpart C—Final Offer Process   § 29.208 What happens once the Department accepts the Tribe's final offer or the final offer is accepted by operation of law? DOT       Once the Department accepts the Tribe's final offer or the final offer is accepted by operation of law, the Department must add the terms of the Tribe's accepted final offer to the compact, funding agreement, or amendment, and transfer funds consistent with §§ 29.403 through 29.405.
49:49:1.0.1.1.22.4.26.1 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM D Subpart D—Contents of Compacts and Funding Agreements   § 29.300 What is included in a compact? DOT       A compact only includes the general terms that govern a Tribe's participation in the Program and such other terms as the Department and the Tribe mutually agree that will continue to apply from year to year, and affirms the government-to-government relationship between the Department and the Tribe. Such terms include the authority, purpose, and obligations of the Department and the Tribe. The written compact memorializes matters on which the Department and the Tribe agree. The compact will not include language not agreed to by the Department and the Tribe.
49:49:1.0.1.1.22.4.26.2 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM D Subpart D—Contents of Compacts and Funding Agreements   § 29.301 Is a compact required to participate in the Program? DOT       A Tribe must have a compact in place to participate in the Program. A compact must be in effect between the Department and the Tribe before the Tribe may enter into a funding agreement with the Department. The Tribe may negotiate a compact at the same time it is negotiating a funding agreement, so long as the compact is executed prior to or concurrent with the funding agreement.
49:49:1.0.1.1.22.4.26.3 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM D Subpart D—Contents of Compacts and Funding Agreements   § 29.302 What is the duration of a compact? DOT       A compact remains in effect until it is terminated by mutual written agreement, retrocession, or reassumption under this part.
49:49:1.0.1.1.22.4.26.4 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM D Subpart D—Contents of Compacts and Funding Agreements   § 29.303 May more than one Tribe enter into a single compact and funding agreement? DOT       A consortium of two or more Tribes may participate in the Program by entering into a single compact and funding agreement on the same basis as an individual Tribe. A consortium may comprise a combination of one or more Tribes that may or may not be independently eligible under § 29.100, so long as the consortium is eligible.
49:49:1.0.1.1.22.4.26.5 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM D Subpart D—Contents of Compacts and Funding Agreements   § 29.304 May a compact be amended? DOT       A compact may be amended at any time by the mutual written agreement of the Department and the Tribe.
49:49:1.0.1.1.22.4.27.10 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM D Subpart D—Contents of Compacts and Funding Agreements   § 29.309 Will a funding agreement include provisions pertaining to flexible or innovative financing? DOT       If the Department and a Tribe agree, a funding agreement will include provisions pertaining to flexible financing and innovative financing. In that event, the Department and the Tribe will establish terms and conditions relating to the flexible and innovative financing provisions that are consistent with 23 U.S.C. 207(d)(2)(C).
49:49:1.0.1.1.22.4.27.11 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM D Subpart D—Contents of Compacts and Funding Agreements   § 29.310 How is a funding agreement amended? DOT       A funding agreement may be amended by the mutual written agreement of the Department and the Tribe as provided for in the funding agreement. The Department will not revise, amend, or require additional terms in a new or subsequent funding agreement without the consent of the Tribe, unless such terms are required by Federal law.
49:49:1.0.1.1.22.4.27.12 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM D Subpart D—Contents of Compacts and Funding Agreements   § 29.311 Is a subsequent funding agreement retroactive to the end of the term of the preceding funding agreement? DOT       When the Department and a Tribe execute a subsequent funding agreement, the provisions of such a funding agreement are retroactive to the end of the term of the preceding funding agreement.
49:49:1.0.1.1.22.4.27.6 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM D Subpart D—Contents of Compacts and Funding Agreements   § 29.305 When can a Tribe initiate negotiation of a funding agreement? DOT       Concurrent with or after a Tribe has entered into a compact with the Department, the Department and the Tribe will negotiate a funding agreement, consistent with §§ 29.101 through 29.109. The funding agreement is the legally binding written agreement that identifies the funds the Tribe will use to carry out its PSFAs, and sets forth the terms and conditions under which the Tribe will receive the funds.
49:49:1.0.1.1.22.4.27.7 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM D Subpart D—Contents of Compacts and Funding Agreements   § 29.306 What is the duration of a funding agreement? DOT       (a) The duration of a funding agreement is one year unless the Department and a Tribe negotiate a multi-year funding agreement or, for an initial funding agreement, a partial-year agreement. (b) Each funding agreement will remain in full force and effect until the Department and the Tribe execute a subsequent funding agreement, except when: (1) The Tribe provides notice to the Department that it is withdrawing or retroceding funds for the operation of one or more PSFAs (or portions thereof) identified in the funding agreement; (2) The Department terminates the funding agreement under 23 U.S.C. 207(f)(2); or (3) The Department and the Tribe agree otherwise.
49:49:1.0.1.1.22.4.27.8 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM D Subpart D—Contents of Compacts and Funding Agreements   § 29.307 What terms must a funding agreement include? DOT       A funding agreement must set forth the following: (a) The funds the Department will provide, including those funds provided on a recurring basis; (b) The PSFAs the Tribe intends to carry out using the funds; (c) The general budget category assigned to the funds; (d) The time and method of transfer of funds; (e) The responsibilities of the Department and the Tribe; (f) Any applicable statutory limitations on the use of funds; (g) Any statutory or negotiated reporting requirements; (h) Any applicable Federal or federally approved design, construction, and monitoring standards, or the Tribe's design, construction, and monitoring standards, if they are consistent with or exceed the Federal or federally approved standards; (i) Other Federal health and safety requirements that apply to the funds included in the funding agreement, or the Tribe provides adequate assurance that its relevant health and safety requirements are consistent with or exceed such requirements; (j) If the funding agreement includes TTP funds under 23 U.S.C. 202 and § 29.400(a), provisions related to planning, inventory, and allowable use of funds in 25 CFR part 170 necessary for administration of the TTP, consistent with the Program's goal to reduce administrative burdens on the Tribe, or Tribal provisions that meet or exceed those standards; (k) Any other provision agreed to by the Department and the Tribe, such as program oversight, accountability, annual reporting on expenditure of Federal funds, and technical assistance; and (l) Provisions authorizing the Department to terminate the funding agreement (in whole or in part) and reassume the remaining funding for transfer, as appropriate.
49:49:1.0.1.1.22.4.27.9 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM D Subpart D—Contents of Compacts and Funding Agreements   § 29.308 May the funding agreement include additional terms from title I of the Indian Self-Determination and Education Assistance Act? DOT       At a Tribe's request, the Department and the Tribe may incorporate into a compact or funding agreement any other provision of title I of the Indian Self-Determination and Education Assistance Act, unless the Department determines there is a conflict between the provision and 23 U.S.C. 207. The Department will make the determination consistent with 23 U.S.C. 207(j).
49:49:1.0.1.1.22.5.28.1 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.400 What funds may a Tribe elect to include in a funding agreement? DOT       A Tribe may elect to include in a funding agreement the following funds: (a) Funds provided to the Tribe under the Tribal Transportation Program identified in 23 U.S.C. 202 in accordance with the statutory formula set forth in 23 U.S.C. 202(b); (b) Any transit funds provided to the Tribe under 49 U.S.C. 5311; (c) Funds for any discretionary or competitive grant administered by the Department awarded to the Tribe for a transportation program under title 23 of the U.S. Code or chapter 53 of title 49 of the U.S. Code; (d) Funds for any other discretionary or competitive grant for a transportation-related purpose administered by the Department otherwise available to the Tribe; (e) Federal-aid funds apportioned to a State under chapter 1 of title 23 of the U.S. Code if the State elects to transfer, pursuant to 23 U.S.C. 207(d)(2)(A)(ii) or 23 U.S.C. 202(a)(9), a portion of such funds to the Tribe for an eligible project; and (f) Formula funds awarded to a State under 49 U.S.C. 5311 that the State elects to award to the Tribe, where the Tribe and State agree that the Department will award the funds directly to the Tribe.
49:49:1.0.1.1.22.5.28.10 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.409 May a Tribe carry over from one fiscal year to the next any funds that remain at the end of the funding agreement? DOT       A Tribe may carry over from one fiscal year to the next any funds that remain at the end of the funding agreement, consistent with the following: (a) The period of availability for formula funds included in a funding agreement does not lapse. After transfer to the Tribe, such funds will remain available until expended. If a Tribe elects to carry over funds from one fiscal year to the next, such carryover funds will not diminish the amount of formula funds the Tribe is authorized to receive under its funding agreement in that or any subsequent fiscal year. (b) The period of availability for discretionary or competitive grants are specific to the funding source and will be set forth in the funding agreement.
49:49:1.0.1.1.22.5.28.11 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.410 May a Tribe use remaining funds from a discretionary or competitive grant included in a funding agreement? DOT       A Tribe may use remaining funds from a discretionary or competitive grant included in a funding agreement, but only with written approval from the Department. The Department must determine that the use of such funds is consistent with the statutory requirements of the grant program, including purpose and time, and is for the project for which the grant was provided.
49:49:1.0.1.1.22.5.28.12 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.411 Are funds included in a compact and funding agreement non-Federal funds for purposes of meeting matching or cost participation requirements under any other Federal or non-Federal program? DOT       Notwithstanding any other provision of law, pursuant to 25 U.S.C. 5325(j), funds included in a compact and funding agreement are considered non-Federal funds for purposes of meeting matching or cost participation requirements under any other Federal or non-Federal program.
49:49:1.0.1.1.22.5.28.13 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.412 May the Department increase the funds included in the funding agreement if necessary to carry out the Program? DOT       The Department may increase the funds included in the funding agreement if necessary to carry out the Program. However, the Department and the Tribe must agree to any transfer of funds to the Tribe unless otherwise provided for in the funding agreement.
49:49:1.0.1.1.22.5.28.14 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.413 How will the Department assist a Tribe with its credit requests? DOT       At the request of a Tribe that has applied for a loan or other credit assistance from a State infrastructure bank or other financial institution to complete an eligible transportation-related project with funds included in a funding agreement, the Department will provide documentation in its possession or control to assist the Tribe.
49:49:1.0.1.1.22.5.28.15 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.414 What limitations apply to Department actions related to transfer of funds associated with PSFAs? DOT       The Department will not: (a) Fail or refuse to transfer to a Tribe its full share of funds due under the Program, except as required by Federal law; (b) Withhold portions of such funds for transfer over a period of years; (c) Reduce the amount of funds identified for transfer in a funding agreement to make funding available for self-governance monitoring or administration by the Department; (d) Reduce the amount of funds included in a funding agreement in subsequent years, except pursuant to: (1) A reduction in appropriations from the previous fiscal year or a change in the funding formula; (2) A congressional directive in legislation or accompanying report; (3) A Tribal authorization; (4) A change in the amount of pass-through funds; (5) Completion of a project, activity, or program for which discretionary or competitive grant funds were provided; (6) Expenditure of all discretionary or competitive grant funds authorized by the Department under separate statutory authorities for an eligible project, activity, or program; or (7) A final decision by the Department pursuant to subpart I to terminate a compact or funding agreement (or portions thereof) due to a finding of gross mismanagement or imminent jeopardy. (e) Reduce the amount of funds identified in a funding agreement to pay for Federal functions, including Federal pay costs, Federal employee retirement benefits, automated data processing, technical assistance, and monitoring of activities under the Program, except that such prohibition is inapplicable when Congress authorizes the Department to set aside a portion of the funds for Department project monitoring and oversight related functions; or (f) Reduce the amount of funds required under the Program to pay for costs of Federal personnel displaced by compacts and funding agreements.
49:49:1.0.1.1.22.5.28.16 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.415 Does the Prompt Payment Act apply to funds included in a funding agreement? DOT       The Prompt Payment Act, 31 U.S.C. 3901 et seq., applies to the transfer of funds under the Program.
49:49:1.0.1.1.22.5.28.17 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.416 What standard applies to a Tribe's management of funds included in a funding agreement? DOT       (a) A Tribe must invest and manage funds included in a funding agreement as a prudent investor would, in light of the purpose, terms, distribution requirements, and applicable provisions, in the compact and funding agreement. This duty requires the exercise of reasonable care, skill, and caution, and is to be applied to investments not in isolation, but in the context of the investment portfolio and as a part of an overall investment strategy, which should incorporate risk and return objectives reasonably suited to the Tribe. In making and implementing investment decisions, the Tribe has a duty to diversify the investments unless, under the circumstances, it is prudent not to do so. (b) A Tribe must: (1) Conform to fundamental fiduciary duties of loyalty and impartiality; (2) Act with prudence in deciding whether and how to delegate authority and in the selection and supervision of agents; and (3) Incur only costs that are reasonable in amount and appropriate to the investment responsibilities of the Tribe.
49:49:1.0.1.1.22.5.28.18 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.417 Must a Tribe continue performance of the Tribal Transportation Program or the Tribal Transit Program under a compact and funding agreement if the Department does not transfer sufficient funds? DOT       A Tribe does not have to continue performance of the Tribal Transportation Program (23 U.S.C. 202(b)) or the Tribal Transit Program (49 U.S.C. 5311(c)(1)) that requires an expenditure of funds in excess of the amount of funds included in a funding agreement. If at any time the Tribe has reason to believe that the total amount included in a funding agreement is insufficient, the Tribe must provide reasonable notice of such insufficiency to the Self-Governance Official. If the Department does not increase the amount of funds included in the funding agreement for the Tribal Transportation Program or Tribal Transit Program, the Tribe may suspend performance of the program activity until such time as the Department transfers additional funds.
49:49:1.0.1.1.22.5.28.19 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.418 May a funding agreement include transfers of State funds? DOT       (a) A State may elect to provide a portion of Federal-aid funds apportioned to the State under chapter 1 of title 23 of the U.S. Code to an eligible Tribe for a project eligible under 23 U.S.C. 202(a). (b) If a State provides such funds, the transfer may occur in accordance with 23 U.S.C. 202(a)(9), 23 U.S.C. 207(d)(2)(A)(ii), or the State may transfer the funds to the Department, and the Department will transfer the funds to the participating Tribe through the Tribe's funding agreement. (c) If a State provides such funds, the Tribe (and not the State) will be responsible for: (1) Constructing and maintaining any projects carried out using the funds; (2) Administering and supervising the projects and funds in accordance with 23 U.S.C. 207; (3) Complying with applicable post-construction requirements. (d) The receipt of any State funds transferred at the election of a State to the Tribe pursuant to 23 U.S.C. 202(a)(9), 23 U.S.C. 207(d)(2)(A)(ii), or funds awarded to a State pursuant to 49 U.S.C. 5311 that are transferred at the election of a State to the Federal Transit Administration for the benefit of a Tribe does not entitle the Tribe to receive contract support costs under 25 U.S.C. 5325(a). While a Tribe is not entitled to additional funds for contract supports costs, a Tribe may use a portion of such State funds for overhead and administrative expenses if such costs are reasonable, allowable, and allocable in accordance with 2 CFR part 200 and the statutory and regulatory requirements applicable to the funding source.
49:49:1.0.1.1.22.5.28.2 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.401 What funds must the Department transfer to a Tribe in a funding agreement? DOT       (a) Subject to the terms of a funding agreement, the Department must transfer to a Tribe all the funds provided for in the funding agreement. (b) The Department must provide funds for periods covered by a joint resolution adopted by Congress making continuing appropriations and authorization extensions, to the extent permitted by such resolutions. The Department will defer payment of funds to the Tribe if the period of continuing appropriations is less than 35 days. (c) To the extent a Tribe elects to include the following funds in its funding agreement, the Department will include the amount equal to: (1) The amount awarded to the Tribe for any discretionary or competitive grant; (2) The amount transferred to the Tribe by a State; (3) The sum of the funds that the Tribe would otherwise receive in accordance with a funding formula or other allocation method set forth in title 23 of the U.S. Code or chapter 53 of title 49 of the U.S. Code; and (4) Such additional amounts as the Department determines equal the amounts that would have been withheld, if any, for the costs of the Bureau of Indian Affairs to administer the program or project on behalf of the Tribe.
49:49:1.0.1.1.22.5.28.20 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.419 Does the award of formula funds entitle a Tribe to receipt of contract support costs? DOT       The award of formula funds does not entitle a Tribe to receive contract support costs under 25 U.S.C. 5325(a). A funding agreement will not provide additional funds for contract support costs to carry out PSFAs. While a Tribe is not entitled to additional funds for contract support costs, a Tribe may use a portion of its formula funds (§ 29.400(a) and (b)) for overhead and administrative expenses if such costs are reasonable, allowable, and allocable in accordance with 2 CFR part 200 and the statutory and regulatory requirements applicable to the funding source.
49:49:1.0.1.1.22.5.28.21 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.420 Is a Tribe entitled to enter into facility leases from the Department and to receive facility support costs? DOT       A Tribe is not entitled to enter into facility leases with the Department and receive facility support costs. A funding agreement will not provide additional funds for facility leases and facility support costs to carry out PSFAs. However, facility leases and facility support costs may be an eligible and allowable use of funds a Tribe receives under a funding agreement.
49:49:1.0.1.1.22.5.28.22 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.421 May a Tribe redesign, consolidate, reallocate, or redirect the funds included in a funding agreement? DOT       (a) A Tribe may redesign, consolidate, reallocate, or redirect funds included in a funding agreement in any manner it considers to be in the best interest of the Indian community being served, provided that: (1) The funds are expended on projects identified in a transportation improvement program approved by the Department, where statutorily required; and (2) The funds are used in accordance with the requirements in appropriations acts, title 23 of the U.S. Code, chapter 53 of title 49 of the U.S. Code, and any other applicable law. (b) Consistent with 23 U.S.C. 207(e)(1)(B), a Tribe may not redesign, consolidate, reallocate, or redirect any discretionary or competitive grant funds or State transfers of funds that are included in the funding agreement. A Tribe may use remaining funds from a discretionary or competitive grant in accordance with § 29.410.
49:49:1.0.1.1.22.5.28.3 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.402 Is the Tribe responsible for the funds included in a funding agreement? DOT       The Tribe is responsible for implementing the Tribe's PSFAs using the funds included in a funding agreement and for administering the funds in accordance with this part. In addition, the Tribe must carry out its PSFAs in accordance with the funding agreement, and all applicable statutes and regulations identified in the funding agreement.
49:49:1.0.1.1.22.5.28.4 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.403 When must the Department transfer to a Tribe the funds identified in a funding agreement? DOT       When a funding agreement requires an annual transfer of funds to be made by the Department at the beginning of a fiscal year, or requires semiannual or other periodic transfers of funds to be made to a Tribe, the Department will make the first transfer no later than 10 days after the apportionment of such funds by the Office of Management and Budget to the Department, unless the funding agreement provides otherwise. Consistent with the Prompt Payment Act, the Department is not responsible for any interest penalty if the Department makes the transfer within 30 days.
49:49:1.0.1.1.22.5.28.5 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.404 When must the Department transfer funds that were not paid as part of the initial lump sum payment (or initial periodic payment)? DOT       The Department must transfer any funds that were not paid in the initial lump sum payment (or initial periodic payment) within 10 days after the apportionment of such funds by the Office of Management and Budget to the Department, unless the funding agreement provides otherwise. Consistent with the Prompt Payment Act, the Department is not responsible for any interest penalty if the Department makes the transfer within 30 days.
49:49:1.0.1.1.22.5.28.6 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.405 When must the Department transfer funds for a discretionary or competitive grant? DOT       If the Department selects a Tribe for a discretionary or competitive grant, and the Tribe elects to include the grant funds in its funding agreement, the Department will transfer the funds to the Tribe in accordance with the terms of the Notice of Funding Opportunity or as the Department and the Tribe may otherwise agree. The Department will transfer these funds no later than 10 days after the Department and the Tribe execute a funding agreement or an amendment covering the grant, unless the funding agreement provides otherwise. Consistent with the Prompt Payment Act, the Department is not responsible for any interest penalty if the Department makes the transfer within 30 days.
49:49:1.0.1.1.22.5.28.7 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.406 Does the award of funds for a discretionary or competitive grant entitle a Tribe to receive the same amount in subsequent years? DOT       The award of funds for a discretionary or competitive grant does not entitle a Tribe to receive the same amount of funds in subsequent years.
49:49:1.0.1.1.22.5.28.8 49 Transportation A   29 PART 29—TRIBAL TRANSPORTATION SELF-GOVERNANCE PROGRAM E Subpart E—Rules and Procedures for Transfer and Use of Funds   § 29.407 Does the award of funds for discretionary or competitive grants entitle the Tribe to receive contract support costs? DOT       Receipt of discretionary or competitive grant awards does not entitle the Tribe to receive contract support costs or any other amounts identified in 25 U.S.C. 5325. However, a Tribe may use grant awards to cover overhead and administrative expenses associated with operation of the grant, as provided in the grant award.

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