[Federal Register Volume 72, Number 71 (Friday, April 13, 2007)]
[Notices]
[Pages 18732-18746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7066]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket Number: FTA-2005-23227]
Notice of Final Title VI Circular
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of Final Title VI and Title VI--Dependent Guidelines for
[[Page 18733]]
Federal Transit Administration Recipients.
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SUMMARY: The Federal Transit Administration (FTA) has revised its Title
VI Circular 4702.1 and is publishing a new Circular 4702.1A, ``Title VI
and Title VI--Dependent Guidelines for Federal Transit Administration
Recipients.'' The purpose of this circular is to provide recipients and
subrecipients of Federal Transit Administration (FTA) financial
assistance with guidance and instructions necessary to carry out the
U.S. Department of Transportation's (``DOT'' or the ``Department'')
Title VI regulations (49 CFR part 21) and to integrate into their
programs and activities considerations expressed in the Department's
Order on Environmental Justice (Order 5610.2), and Policy Guidance
Concerning Recipients' Responsibilities to Limited English Proficient
(``LEP'') Persons (70 FR 74087, December 14, 2005). Circular 4702.1A
includes requirements and procedures which, if followed, will ensure
that no person in the United States shall, on the basis of race, color,
or national origin, be excluded from participation in, denied the
benefits of, or be subjected to discrimination under any program or
activity receiving financial assistance from FTA.
DATES: This guidance becomes effective May 14, 2007. This circular
supersedes Title VI Circular 4702.1, ``Title VI Program Guidelines for
Urban Mass Transit Administration Recipients.''
SUPPLEMENTARY INFORMATION:
Availability of Final Circulars
You may download the circular from the Department's Docket
Management System (http://dms.dot.gov) by entering docket number 23227
in the search field, and then clicking on ``reverse order.'' The
circular is the most recently posted document. You may also download an
electronic copy of the circular from FTA's Web site, at http://www.fta.dot.gov. Paper copies of the circular may be obtained by
calling FTA's Administrative Services Help Desk, at 202-366-4865.
I. Why Has FTA Revised This Circular?
Prior to this notice, FTA's Title VI Circular had not been revised
since May 26, 1988. In the ensuing 18 years, much of the guidance in
Circular 4702.1 has become outdated. Circular 4702.1A has been updated
to incorporate developments in legislation, Executive Orders, DOT
directives, and court cases that have transformed transportation policy
and affected the rights and responsibilities of recipients and
beneficiaries. These directives include the Intermodal Surface
Transportation Equity Act (ISTEA), enacted in 1991; the Transportation
Equity Act for the 21st Century (TEA-21), enacted in 1998; the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU), enacted in 2005; Executive Order 12898,
``Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations'' (issued in 1994); the DOT
Order on Environmental Justice 5610.2 (issued in 1997); Executive Order
13166, ``Improving Access to Services for Persons with Limited English
Proficiency'' (issued in 2000); and DOT's ``Policy Guidance Concerning
Recipients'' Responsibilities to Limited English Proficient Persons''
(referred to as the ``DOT LEP Guidance'') issued in 2001 and reissued
in 2005.
In addition, Circular 4702.1 needed to be updated to eliminate
outdated nomenclature, such as references to FTA as the ``Urban Mass
Transit Administration'' and to statutes such as the ``Urban Mass
Transit Act'' and the ``Federal Aid Urban System Program.''
In the process of revising this circular, FTA took the following
factors into consideration: The requirements of the DOT Title VI
regulations at 49 CFR part 21; external Title VI guidance, including
the Department of Justice's (DOJ's) Title VI Legal Manual and the
Council on Environmental Quality's ``Environmental Justice Guidance
Under the National Environmental Policy Act''; the outcomes of Title VI
administrative complaints and lawsuits generated since the circular's
last revision; the recommendations of the Government Accountability
Office (GAO) in its November 2005 report on limited English proficiency
(see GAO report, ``Transportation Services: Better Dissemination and
Oversight of DOT's Guidance Could Lead to Improved Access for Limited
English-Proficient Populations,'' GAO-06-52); changes in industry
practices since the circular's last revision; and results of FTA Title
VI oversight reviews. The Federal Register Notice accompanying FTA's
draft Title VI Circular Federal Register, Vol. 71, No. 135, July 14,
2006) contains a detailed description of how these factors were taken
into account during the circular's revision process.
This document does not include the final circular; electronic
versions of the circulars may be found on the docket, at http://dms.dot.gov, or on FTA's Web site, at http://www.fta.dot.gov. Paper
copies of the circulars may be obtained by contacting FTA's
Administrative Services Help Desk, at 202-366-4865.
II. How Does the Final Circular Differ From the Proposed Circular?
While much of the content of the final circular is identical to the
proposed version, the final circular includes the following
comprehensive changes made in response to comments received during
FTA's July 14 to September 14, 2006, public comment period:
The title of the final circular has been changed from
``Title VI Guidelines for FTA Recipients'' to ``Title VI and Title VI--
Dependent Guidelines for Federal Transit Administration Recipients''
and provisions of the final circular have been modified to clarify that
the document outlines requirements pursuant to the DOT Title VI
regulations; and guidance pursuant to the DOT Order 5610.2 on
Environmental Justice and the DOT LEP Guidance located at 70 FR 74087
(December 14, 2005). The revised circular covers recipients' and
subrecipients' responsibilities to ensure nondiscrimination on the
basis of race, color, or national origin pursuant to the DOT Title VI
regulations. Pursuant to Executive Order 12898 and the Department of
Transportation Order on Environmental Justice, FTA has advised its
grantees to ensure that the interests and well-being of low-income
populations are considered and addressed during transportation
decisionmaking.
The proposed circular included requirements that FTA
recipients and subrecipients must abide by and recommended procedures
that agencies can follow to meet the requirements. The final circular
more clearly delineates what actions are required and what actions are
merely encouraged or recommended.
The final circular provides recipients and subrecipients
with greater flexibility to meet FTA requirements. While the proposed
circular recommended a single strategy to comply with Title VI, the
final circular in many cases allows recipients and subrecipients to
choose from a menu of options in order to meet certain requirements and
more clearly states that recipients and subrecipients can, in some
cases, develop their own procedures for meeting the requirements in the
DOT regulations and this circular.
The final circular references, on a more consistent basis,
terminology that is already in use in existing FTA or DOT regulations
and directives. Terms of art are used consistently throughout the
document.
The final circular includes updated appendices to assist
recipients and subrecipients with compliance.
[[Page 18734]]
III. How Did FTA Involve the Public in the Circular Revision?
FTA has responded to feedback received during two public comment
periods. During the first comment period, which occurred between
December 15, 2005 and January 17, 2006, FTA invited the public to
comment on Circular 4702.1 and sought input from interested parties on
any problems with compliance, best practices for compliance, and
proposals for changes to this Circular (see Federal Register, Vol. 70,
No. 240, December 15, 2005). FTA received comments from 23 individuals
or organizations in response to this notice and request for comment. A
summary of these comments as well as how they were incorporated into
the proposed Title VI Circular is included in FTA's July 14, 2006,
Federal Register Notice and Request for Comment.
On July 14, 2006, FTA published a notice of its proposed circular
in the Federal Register. The comment period lasted until September 14,
2006. During this period, FTA staff responded to questions from the
public on the proposed circular and also invited stakeholder groups to
submit comments to the docket. A summary of the outreach conducted and
responses to questions received is included in the docket.
In response to the July 14, 2006, notice and request for comment,
FTA received comments from 17 transit agencies, four non-profit
organizations, three metropolitan planning organizations (MPOs), one
State DOT, one individual, and one county government. A total of 27
entities submitted comments to the docket. We received diverse and even
opposing comments.
IV. How Has FTA Responded to Comments Received?
The remainder of this notice summarizes the specific comments
received pursuant to FTA's July 14, 2006, notice and describes FTA's
response.
Positive Feedback
Comments: Five organizations provided general positive feedback on
the proposed circular, including that the circular seems reasonable in
its approaches, that the proposed circular's elimination of outdated
requirements is an improvement over the existing circular, that the
guidance in general represents a great improvement over the 1988
Circular, that consolidation and consistency among the provisions will
clarify FTA's compliance requirements, and that citizens will benefit
from equal and fair access to Federally-funded transit systems.
The Relationship Between the Circular's Requirements and
Recommendations
Comments: Five organizations requested that the final circular
clarify what actions recipients are required to take and what actions
are merely encouraged or recommended. One commenter stated that FTA
should avoid giving recommendations as opposed to issuing defined
standards; another commenter suggested that FTA issue a summary matrix
differentiating between requirements and recommendations. A third
commenter requested that the circular clarify references to ``shall''
and ``should'' throughout the document. Another commenter stated that
the proposed circular's mix of requirements and recommendations creates
requirements without offering fixed standards for compliance.
FTA Response: The final circular distinguishes between
requirements, flowing from the DOT Title VI regulations, and guidance,
based on the DOT Order on Environmental Justice and the DOT LEP
Guidance. In several instances, the final circular also allows agencies
to meet the requirements by adopting procedures that would not be
overly burdensome and best fit with their existing business practices.
The final circular in some instances allows recipients and
subrecipients to choose from a menu of options or effective practices
in order to comply with many of the requirements listed in Chapter IV
and Chapter V. In some instances, recipients have the option of
developing their own procedure to comply with a specific requirement.
In cases where a recipient develops its own procedure for compliance,
FTA will review the procedure, which should be included as part of the
recipients' Title VI submission, to confirm that it meets the
expectation of the relevant circular provision and the DOT Title VI
regulations. The final circular's Chapter I, parts 1(c)(1) and 1(d)(1)
clarify where the circular's requirements end and guidance begins.
The Circular's Administrative Burden on Grantees
Comments: Four organizations commented that the proposed circular
would impose administrative burdens on FTA grantees. One commenter
stated that many of the proposed changes to the circular would have an
adverse impact on the agency's ability to provide its required level
and quality of service and would be unduly burdensome. A second
commenter stated that the process of preparing and submitting Title VI
reports detracts from their ability to provide public transportation
and that the list of new and expanded recordkeeping and reporting
requirements establish a substantial burden on FTA grantees. A third
commenter suggested that agencies serving areas with under 200,000
people should only be required to file a Title VI report with FTA if
there has been a complaint filed with the agency. A fourth commenter
estimated that a threefold increase in resources over what the agency
currently spends on Title VI administration would be needed in response
to the proposed circular, but stated that the benefits of Title VI
compliance outweigh the increased costs. This commenter also
recommended that the final circular include a directive to appropriate
sufficient resources to facilitate administration of the new circular.
FTA Response: The final circular modifies the administrative and
reporting requirements found in Circular 4702.1. In some instances FTA
has added administrative and reporting requirements. In other instances
FTA has removed administrative and reporting requirements. Under
circular 4702.1A, all recipients and subrecipients, not just those
transit agencies serving areas of 200,000 persons or more, are
responsible for administering their public involvement activities in a
non-discriminatory manner and submitting a summary of these activities
to the FTA or to their direct recipient. Also under circular 4702.1A,
all recipients and subrecipients must take responsible steps to ensure
meaningful access to the benefits, services, information, and other
important portions of their programs and activities for individuals who
are Limited English Proficient (LEP). The final circular gives
recipients and subrecipients great latitude to determine what specific
actions are necessary to fulfill these requirements.
Circular 4702.1A removes the old requirement that all recipients
and subrecipients submit FTA and DOT Title VI assurances that are
separate from FTA's annual list of certifications and assurances. The
revised circular also eliminates the requirement under Circular 4702.1
that recipients report the grants that they receive from the FTA and
that they re-submit in their Title VI compliance report copies of
environmental analyses that had been previously submitted to FTA. Also
removed in the final circular is the requirement that all recipients
who provide transportations service conduct level and quality of
service monitoring
[[Page 18735]]
and report their results to FTA. This requirement is reserved for
transit agencies serving areas with populations of 200,000 persons or
greater.
Circular 4702.1A would further reduce administrative burdens by
giving recipients and subrecipients greater flexibility to meet
requirements through procedures that best match their resources, needs,
and standard practices. For example, Chapter V, part 2 of the proposed
circular required recipients providing transit service to geographic
areas of 200,000 people or greater to monitor the service that they
provide in order to ensure that the end result of policies and
decisionmaking is equitable service. The proposed circular required
that recipients fulfill this requirement by implementing level of
service and quality of service monitoring procedures and analyzing the
results of customer surveys. Chapter V, part 5 of the final circular
continues to require that recipients monitor the service that they
provide to ensure equitable service, but gives recipients the option of
fulfilling this requirement by implementing either the level of service
monitoring procedures, or the quality of service monitoring procedures,
or the analysis of customer surveys, or developing their own monitoring
procedures. Recipients may choose the option that would enable them to
most efficiently meet these requirements. This approach, which is a
departure from the format of Circular 4702.1 and the proposed Title VI
Circular, should allow recipients and subrecipients to reduce the
amount of time and resources that would be devoted to Title VI
compliance while still ensuring that FTA funds are being administered
without regard to race, color, or national origin.
Finally, FTA will be conducting regional training in Calendar Year
2007 to inform recipients and subrecipients of the final circular's
requirements and to discuss effective practices for compliance. FTA
also has plans to develop an automated system where grantees can submit
an electronic Title VI report. These training and electronic reporting
activities should reduce the administrative burden associated with
submitting Title VI reports.
The final circular does not direct agencies to commit a certain
level of resources towards Title VI compliance, because FTA does not
generally dictate the internal resource allocation decisions of its
grantees.
The Relationship Between Title VI and Environmental Justice
Five organizations commented on the proposed circular's treatment
of environmental justice principles and policies. One commenter stated
that minority and low-income persons are an important category of
individuals to which FTA should devote attention. Another commenter
stated that the proposed circular fails to effectively differentiate
between the requirements of Title VI and Executive Order 12898. A third
commenter suggested that the proposed circular more consistently
incorporate definitions and concepts from the DOT Order on
Environmental Justice. Another commenter stated that by combining Title
VI nondiscrimination law with the internal Federal agency policy for
data collection and analysis required by the DOT Order on Environmental
Justice, the proposed circular would create unfunded mandates, and a
statutorily unrecognized protected class of low-income people.
FTA Response: The final circular fulfills the purpose of DOT Order
5610.2, which states that each operating administration in DOT
integrates the considerations of Executive Order 12898 into the
programs, policies, and activities that they administer or implement.
Order 5610.2 is not solely internal to DOT and, in that FTA has
integrated environmental justice considerations into its general grant
program. The reformatted circular's guidance to recipients to identify
and address, as appropriate, adverse and disproportionately high
effects of their policies, programs, and activities on low-income
populations as well as minority populations does not introduce low-
income people as a protected class under Title VI. The final circular's
reference to environmental justice principles and concepts reinforces
considerations already embodied in Title VI and NEPA and does not
create new mandates.
Subrecipient Compliance
Comments: Two organizations commented on the proposed circular's
requirements for subrecipient compliance with Title VI in Chapter IV.
One commenter sought clarification as to whether Section 5316 and 5317
grantees and subrecipients would also be required to comply with the
circular. The commenter also stated that FTA cannot reach around its
grantees to force reports and documents from subrecipients and that
passing on specific compliance requirements to subrecipients risks
forcing subrecipients to prepare multiple, conflicting reports to
comply with the multiple Federal agencies that extend financial
assistance. Another commenter stated that the circular's new
requirements for subrecipients equate to significant administrative
expenses and recommended that subrecipients receiving under $150,000 be
exempt from the public involvement and language access requirements in
Chapter IV of the proposed circular.
FTA Response: The final circular clarifies that Section 5316 and
5317 grantees are to follow the requirements for all recipients and
subrecipients listed in Chapter IV. This notice clarifies that FTA can
require recipients to pass forward Title VI requirements to their
subrecipients, consistent with the final circular's guidance in Chapter
IV. In addition, Chapter V of the final circular provides guidelines to
designated recipients in large urbanized areas, so that these
recipients can ensure that they are apportioning Job Access and Reverse
Commute (JARC) and New Freedom funds to subrecipients without regard to
race, color, or national origin.
In response to the commenter's concern that subrecipients will be
subject to conflicting methodologies for civil rights compliance
stemming from multiple Federal agencies, FTA notes that its circular is
designed in part to clarify the DOT Title VI regulations. These
regulations, as well as those issued by other Federal agencies, are
modeled after Title VI regulations developed by DOJ. Because multiple
Federal agencies have adopted nearly identical Title VI regulatory
language, the risk that a transit provider receiving funds from many
Federal sources will be subject to conflicting or diverging
requirements is small. However, if a transit provider has reason to
believe that one or more of the requirements in Chapter IV of the final
Title VI Circular conflicts with a Title VI data collection or
reporting requirement requested by another Federal agency, the provider
should contact their direct recipient or FTA to discuss a strategy to
resolve the conflict.
Chapter IV Section 3 of the final circular coffers guidance that
subrecipients seek out and consider the viewpoints of minority, low-
income, and LEP populations in the course of conducting public outreach
and involvement activities; however, this section states that
recipients and subrecipients have wide latitude to determine how, when,
and how often specific public involvement measures should take place,
and what specific measures are most appropriate. Subrecipients can take
the resources available to their agency into account when determining
the appropriate public involvement steps. Chapter IV Section 4 of the
final circular requires that all subrecipients take reasonable
[[Page 18736]]
steps to ensure meaningful access to their programs and activities by
people with limited English proficiency; however, the final circular
clarifies that certain FTA recipients or subrecipients, such as those
serving very few LEP people or those with very limited resources may
choose not to develop a written LEP plan as recommended in the DOT LEP
Guidance.
Data Collection Methodology
Comments: Three organizations commented on the data collection and
analysis methodology in the proposed circular. One commenter requested
that FTA restore the definition of ``minority transit route'' contained
in Circular 4702.1. A second commenter requested that the proposed
circular reinsert a modified definition of ``minority transit route''
as ``a route that has at least 40 percent of its total route mileage in
Census tracts or traffic analysis zones with a percentage of minority
population greater than the percentage of the minority population in
the transit service area,'' and that agencies use this definition to
assess the demographics of transit routes where no demographics on
ridership based on customer survey data are available. A third
commenter suggested that the circular define a ``minority transit
route'' as a route where more than one-third of a route's passenger
boardings are in minority areas or a route where more than one third of
the stops are located in minority areas.
FTA Response: The final circular does not include a definition of
``minority route'' in part because comments received during the
December 15, 2005 to January 17, 2006, comment period questioned the
usefulness of this definition and in part because FTA wants to ensure
that recipients have the option of using methodology that best fits
their needs. If recipients choose to develop their own procedures in
order to evaluate the impacts of service reductions, as is an option in
Chapter V, part 1b, or if recipients choose to develop their own
procedures to monitor transit service for equity concerns, as is an
option in Chapter V, part 1d, they have the option to incorporate the
old circular's definition of ``minority transit route'' or their own
definition of a ``minority transit route'' into their locally developed
procedures.
Title VI Requirements for Paratransit Service
Comments: Two organizations commented on the proposed circular's
treatment of paratransit service. One commenter requested that agencies
that provide only paratransit service not be required to submit a Title
VI report. A second commenter asked that FTA clarify the reporting
requirements of agencies that provide only paratransit services.
FTA Response: The final circular does not provide guidance or
requirements for agencies that provide Americans with Disabilities Act
(ADA) complementary paratransit service. Title VI guidance for this
mode of transportation was not included in part because of concerns
that Title VI requirements might conflict with the detailed
requirements for ADA complementary paratransit contained in the DOT
regulations implementing Titles II and III of the ADA (49 CFR part 37).
In addition, FTA has not, in recent years, received complaints that ADA
complementary paratransit providers were discriminating on the basis of
race, color, or national origin, nor have we received requests for
guidance in this area. If FTA receives specific complaints that ADA
complementary paratransit providers are engaging in disparate treatment
or disparate impact discrimination, we will investigate such complaints
and work with the transit provider to ensure that paratransit service
is being administered consistent with Title VI.
The general requirements presented in Chapter IV of the circular,
including the reporting requirements, would apply to agencies that
provide demand-response transportation that is available to the general
public or, in the case of services funded under FTA's Section 5310
program, is open to eligible older adults and individuals with
disabilities. The requirements of this chapter also apply to providers
of fixed-route transportation.
Minority Representation on Decision Making Bodies
Comments: One organization noted that the proposed circular
eliminated a provision in Circular 4702.1 that recipients provide a
racial breakdown of their nonelected boards, advisory councils, or
committees and provide a description of the efforts made to encourage
minorities to participate on such boards, councils, or committees. The
organization recommended that FTA require transit agencies and MPOs to
report on how affected communities of color are represented on decision
making bodies.
FTA Response: In the course of its Title VI oversight activities,
FTA determined that most transit agencies could not meet the original
circular's requirement to encourage minority participation on their
decision-making bodies because transit boards of directors are
generally appointed by the local political leadership and agency staff
believed it would be inappropriate to interject themselves into this
appointment process. FTA considered including in its final circular a
provision that would instruct agencies to analyze whether jurisdictions
with concentrations of minority and/or low-income people were
adequately represented on transit agency or metropolitan planning
boards. The final circular does not include such a provision because,
regardless of the results of such analyses, agency staff would still
not have the authority to influence the composition of their boards of
directors.
Nondiscrimination in Emergency Preparedness
Comments: One organization recommended that the final circular
include language requiring FTA grantees to provide assistance to
transit dependent populations in emergencies.
FTA Response: FTA is working to ensure that its grantees consider
civil rights issues in the course of developing and implementing
emergency preparedness, disaster response, and disaster recovery plans
so that race, color, and national origin, including LEP status, do not
impede access to information, evacuation, and relief services that are
provided by FTA grantees. Appendix D of the final circular includes a
reference to FTA's Disaster Response and Recovery Resource for Transit
Agencies which can be found at http://transit-safety.volpe.dot.gov/Publications/order/singledoc.asp?docid=437. This resource provides
local transit agencies and transportation providers with useful
information and best practices in emergency preparedness and disaster
response and recovery, including information on how to respond to the
unique needs of low-income people, limited English proficient people,
people with disabilities, and older adults.
The Circular Revision Process
Comments: Three organizations commented on the process FTA is using
to revise its Title VI Circular. One commenter asked if FTA plans to
allow for additional input on the document. Another commenter noted
that with many open dockets for comments, it is hard to be able to
comment while maintaining business functions, and the agency often does
not have time to evaluate and respond to all issues. Two commenters
stated that, to avoid inconsistencies, the proposed circular should
reference and adopt language
[[Page 18737]]
from the regulation on planning as well as the upcoming rulemaking to
implement coordinated public transit-human services and the rulemaking
for emergency preparedness for public transportation systems.
FTA Response: As of the date of this publication, Circular 4702.1A
is a final document: however, FTA will consider making changes to the
circular if it receives comments from the public and determines that
clarification to Circular 4702.1A is required. The provisions in this
circular are consistent with the planning regulations at 23 CFR part
450 as well as FTA's proposed Elderly Individuals and Individuals with
Disabilities, Job Access and Reverse Commute, and New Freedom programs
Circulars.
V. Section-by-Section Discussion
FTA received comments from 27 entities on specific sections of the
proposed circular. This section summarizes the provisions that were
subject to comment, the nature of the comment, and FTA's response.
Objectives of the Title VI Circular
Chapter II, part 1 of the proposed circular described the
document's objectives, stating, in part, that the guidance and
procedures will allow FTA recipients to ``ensure that the level and
quality of transportation service is provided equitably and without
regard to race, color, national origin, or income'' (Chapter II, part
1a) and to ``avoid, minimize, or mitigate disproportionately high and
adverse human health and environmental effects, including social and
economic effects of programs and activities on minority populations and
low-income populations'' (Chapter II, part 1b).
Comments: FTA received comments on this section from two
organizations. One commenter suggested that the language in Chapter II,
part 1a inappropriately mixed Title VI and environmental justice
concepts and would result in a requirement to distribute government
resources equitably rather than ensuring a straightforward ban on
discrimination against protected classes. A second commenter requested
that the reference at Chapter II, part 1b to ``disproportionately
high'' effects be changed to ``disproportionate'' effects to eliminate
confusion over what constitutes a ``high'' effect and to clarify that
the circular should have the effect of eliminating any disproportionate
effect on minority and low-income populations.
FTA Response: FTA has revised the ``Objectives'' section to state
that the guidance and procedures in the circular will allow FTA
recipients and subrecipients to ``ensure that the level and quality of
transportation service is provided without regard to race, color, or
national origin.'' (Circular 4702.1A, Chapter II, part 1a). This
modified language clarifies that one of the objectives of the circular
is to ensure nondiscrimination under Title VI. The final circular
retains the reference to ``disproportionately high'' effects because
this term is consistent with the terms used in the DOT Order on
Environmental Justice.
Definitions
Chapter II, part 6 of the proposed circular included a section
defining terms that appear elsewhere in the document.
Comments: Six entities commented on the proposed circular's
definition of ``adverse effect,'' listed at Chapter II, part 6a. One
commenter noted that the distinction between an ``adverse effect'' and
``disparate effect'' is confusing. Two commenters requested that the
proposed circular use the definition of ``adverse effect'' found in the
DOT Order on Environmental Justice. Another commenter stated that the
proposed definition is too broad and impractical for purposes of
evaluating projects; however, the problem could be alleviated if the
recipient has discretion to decide which effects need to be evaluated
based on the given project. Another commenter stated that the
definition should be amended to take into account adverse effects that
can be mitigated. Another commenter stated that the proposed definition
extends the Federal reach into areas of traditional State and local
purview.
FTA Response: The final circular retains the definition of
``adverse effect'' in the proposed circular because it is the
definition used in the DOT Order on Environmental Justice. Although the
definition of ``adverse effect'' in the DOT Order and the circular
includes a wide range of possible effects, recipients have discretion
to decide which effects need to be evaluated in detail based on the
nature of the proposed project and the characteristics of the physical
and natural environment where the project is located. Recipients can
also receive approval from FTA after demonstrating that the adverse
effects identified will be avoided, minimized, or mitigated. NEPA's
scoping process is used to determine which specific adverse effects
need to be addressed. Circular 4702.1A reinforces DOT's longstanding
position that attention to any disproportionately high and adverse
effects to minority and low-income communities should be incorporated
into the NEPA process, but it does not alter the NEPA requirements at
23 CFR part 117 or extend the Federal reach into areas of traditional
State and local purview. The final circular also includes DOJ's
definition of ``disparate impact,'' to resolve confusion over the two
terms.
Comments: One entity commented on the proposed circular's
definition of ``compliance'' and ``deficient'' listed at Section 6(c)
and 6(e), respectively. One commenter stated that the definitions of
these terms are inconsistent with how they are used in Section 5 of
Chapter II.
FTA Response: The final circular includes a definition of
``deficiency'' and uses this term consistently.
Comments: Two organizations commented on the proposed circular's
definition of ``discrimination'' listed at Section 6d. One commenter
suggested that the definition of discrimination be modified to include
any intentional or unintentional ``act'' as well as ``pattern or
practice,'' because the prohibition on discrimination at 49 CFR Section
21.5 includes a reference to actions of discrimination. A second
commenter requested that ``discrimination'' be defined in terms of
``disproportionate effects'' as opposed to the proposed definition of
an act that subjects a person to ``unequal treatment.''
FTA Response: The final circular adopts the definition of
``discrimination'' based on the definition used in the FHWA Title VI
complaint manual. Under this definition, ``discrimination'' refers to
``any act or inaction, whether intentional or unintentional, in any
program or activity of a Federal aid recipient, subrecipient, or
contractor that results in disparate treatment, disparate impact, or
perpetuating the effects of prior discrimination based on race, color,
or national origin.'' The final circular also includes definitions for
``disparate treatment'' and ``disparate impact'' that are incorporated
from the FHWA manual.
Comments: Five entities commented on the proposed circular's
definition of ``disproportionate effect'' listed at Section 6f. Two
commenters requested that FTA replace this definition with the
definition of an ``adverse and disproportionately high effect''
contained in the DOT Order on Environmental Justice. A third commenter
stated that the different subdefinitions of the term are confusing and
that the subdefinition at 6f(2) was more commonly used than the one at
6(f)(3). A fourth commenter requested that the reference to the term
``predominantly'' in the language on ``effects predominantly borne by
[[Page 18738]]
members of a minority race, color or national origin population * * *''
at Section 6(f)(1) be replaced by the word ``disproportionately'' and
that the word ``significantly'' at 6f(3) be deleted. Another commenter
suggested that FTA amend the definition reference ``adverse'' effects
that are predominantly borne by minority and low-income populations and
that the definition to take into account adverse effects that can be
mitigated.
FTA Response: The final circular adopts the definition of
``disproportionately high and adverse effect'' used in the DOT Order on
Environmental Justice in place of the ``disproportionate effect''
definition used in the proposed circular.
Comments: One entity commented on the proposed circular's
definition of ``fixed guideway'' listed at Section 6h. The commenter
requested that FTA interpret this definition to exclude commuter rail
lines with shared rights of way.
FTA Response: The definition of ``fixed guideway'' in the final
circular is taken, word-for-word, from FTA's authorizing legislation,
which defines the term ``fixed guideway'' at 49 U.S.C. 5302(a)(4). FTA
interprets ``fixed guideways'' to include commuter lines with shared
rights of way.
Comments: Four entities commented on the proposed circular's
definition of ``low-income person'' listed at Section 6l. Three
commenters requested that this definition be modified to allow agencies
to develop local definitions of ``low-income.'' Two commenters
requested that this definition be consistent with the definition in the
U.S. Census.
FTA Response: The final circular keeps the draft circular's
definition of ``low-income'' because this term is adopted from the DOT
Order on Environmental Justice. Although this definition references the
Department of Health and Human Services' (HHS) poverty guidelines, it
should be noted that HHS develops this level based on poverty data
collected from the U.S. Census. FTA recipients can use Census data to
determine the number and proportion of low-income people located in
their service area.
While the circular does not require that recipients identify low-
income populations using any definition other than the one adopted in
the final circular, it does give recipients flexibility to collect
demographic information on their beneficiaries using locally developed
methods (see Chapter V, Section 1c). Grantees could adopt a locally
developed definition of ``low-income,'' such as any household with an
income of 25 to 50 percent of the metropolitan area's median household
income.
Comments: One organization commented on the proposed circular's
definition of ``low-income population'' listed at Section 6m and
``minority population'' listed at Section 6o. The commenter stated that
these definitions are impractical as they fail to set a standard for
determining whether a group is ``readily identifiable.''
FTA Response: The final circular retains the definitions of
``minority population'' and ``low-income population,'' which are
adopted from the DOT Order on Environmental Justice. This notice
clarifies that a ``readily identifiable'' population is one that can be
identified using data from the U.S. Census.
Comments: Four entities commented on the proposed circular's
definition of a ``predominantly minority area'' in Section 6r and a
``predominantly low-income area'' in Section 6s. One commenter
requested that the circular delete the reference to ``predominantly''
minority or low-income areas. A second commenter requested that the
definition is over-inclusive and that the document should be modified
to define ``predominantly minority'' and ``predominantly low-income''
areas as areas where the minority population and low-income population
proportion is two times or greater the proportion of these populations
in the transit service area. A third commenter requested that the
definition's reference to ``traffic analysis zone'' be deleted. A
fourth commenter requested that the definition be used consistently
throughout the circular.
FTA Response: The final circular retains the definition of
``predominantly minority area'' as ``a geographic area, such as a
neighborhood, Census tract, or traffic analysis zone, where the
proportion of minority people residing in that area exceeds the average
proportion of minority people in the recipient's service area.'' The
revised circular also retains the definition of a ``predominantly low-
income area'' as ``a geographic area, such as a neighborhood, Census
tract, or traffic analysis zone, where the proportion of low-income
people residing in that area exceeds the average proportion of low-
income people in the recipient's service area.'' Pursuant to Chapter V,
Section 1c, recipients have flexibility to collect demographic
information on their beneficiaries using thresholds for ``predominantly
minority'' and ``predominantly low-income'' areas that are different
from the terms as defined in Chapter II, Sections 6v and 6w of the
final circular. For example, under the guidance offered in Chapter V,
Section 1c, a recipient could implement a map-making procedure in order
to highlight those Census tracts where the minority or low-income
population was twice the average of the service area. This modification
might be useful for recipients that serve regions with high overall
minority or low-income populations and who wanted to ensure that their
service was reaching areas where minority and low-income people were
highly concentrated. In addition, the guidance at Chapter V, Section 1c
of the final circular gives recipients the flexibility to prepare maps
based on either Census tracts or traffic analysis zones. The final
circular uses the terms ``predominantly minority'' and ``predominantly
low-income'' consistently throughout the document.
Title VI Requirements for Applicants
Chapter III of the proposed circular describes the procedures that
all applicants for FTA financial assistance, including those entities
applying for FTA assistance for the first time, should follow to comply
with the DOT Title VI regulations.
Comments: FTA received one comment on this chapter. The commenter
noted that the Web link to the text of FTA's annual certifications and
assurances no longer exists. The commenter also remarked that the
circular offers no provisions to ensure that first-time applicants for
Federal financial assistance have complied with Title VI.
FTA Response: The final circular does not include a specific Web
link for FTA's annual certifications and assurances because the exact
link may change over time. However, applicants should be aware that the
text of these certifications and assurances will generally be posted on
FTA's Web site, http://www.fta.dot.gov. The circular does not offer
provisions to ensure that applicants who have never before received
Federal financial assistance have complied with Title VI because Title
VI does not apply to entities that do not receive financial assistance
from the Federal government.
General Reporting Requirements
Chapter IV of the proposed circular describes the procedures that
all FTA recipients and subrecipients shall follow to ensure that their
activities comply with the DOT Title VI regulations and/or the DOT
Order on Environmental Justice and the DOT LEP Guidance.
Comments: FTA received comments from one organization on the
purpose of
[[Page 18739]]
this chapter. The commenter stressed that Title VI analyses should be
done and provided to communities prior to asking for community input on
alternatives, the development of alternatives should be informed by
community participation, and obtaining input from minority and low-
income communities on their transit needs should be the starting place,
not a validation of decisions already made.
FTA Response: The final circular states that an environmental
justice analyses of construction projects should be incorporated into
the agency's NEPA compliance (see Chapter IV, Section 2 of Circular
4702.1A). NEPA and the DOT NEPA regulations require early and
continuous public involvement in the identification of social,
economic, and environmental impacts related to proposed projects. In
addition, the public participation requirement for all recipients and
subrecipients at Chapter IV, Section 3 of Circular 4702.1A includes
language stating, ``An agency's public participation strategy shall
offer early and continuous opportunities for the public to be involved
in the identification of social, economic, and environmental impacts of
proposed transportation decisions.''
Environmental Justice Analysis of Construction Projects
Chapter IV, Section 2 of the proposed circular required recipients
and subrecipients to include an environmental justice analysis in their
applications for a documented Categorical Exclusion (CE), Environmental
Assessment (EA), and Environmental Impact Statements (EISs) that
precede construction projects. This section also recommended
information that should be included in the recipient's or
subrecipient's environmental justice analysis.
Comments: FTA received six comments on this provision. One
commenter noted that portions of this section refer to minority and
low-income ``populations'' while other portions refer to minority and
low-income ``communities'' and minority and low-income
``neighborhoods'' and that the varying terms are confusing. Three
commenters suggested either that agencies should not have to conduct a
separate environmental justice analysis for projects subject to a Class
II(d) CE or that decisions as to when such analyses are performed
should be left to FTA's legal counsel. A third commenter requested that
FTA modify its reference to major renovation or rehabilitation projects
so that construction projects that do not increase a facility's space
or use should be exempted from an environmental justice analysis. Other
commenters sought clarification on the information that should be
collected as part of the environmental justice analysis.
FTA Response: The environmental justice analysis of construction
projects in the final circular eliminates confusing references to
``communities, neighborhoods, and populations'' with a consistent
reference to minority and low-income populations within the study area
of the project. Recipients and subrecipients do not have to perform an
environmental justice analysis for any construction, renovation, or
rehabilitation project that is not already subject to FTA's NEPA
documentation requirements. However, if a recipient is required to
submit an EIS, EA, or application for a CE, an environmental justice
analysis should be part of the documentation that FTA already requires.
The final circular recommends what information should be collected as
part of an agency's environmental justice analysis.
Inclusive Public Involvement
Chapter IV, Section 3 of the proposed circular required recipients
and subrecipients to seek out and consider the viewpoints of minority
and low-income populations in the course of conducing public outreach
and involvement activities. This section also provided examples of
public involvement measures targeted to overcome linguistic,
institutional, cultural, economic, historical, or other barriers to
participation.
Comments: FTA received four comments on this provision of the
proposed circular. One commenter suggested that FTA clarify it is the
recipients' obligation to seek out and ensure participation by minority
and low-income populations and include additional examples of effective
information gathering in minority and low-income areas. The commenter
suggested that the circular include examples of community-based
strategies, where agencies have taken the initiative to seek input from
transit-dependant people in their communities. The commenter stated
that this section should also address variations in learning and
communication styles and that the circular should state the importance
of face-to-face contact and direct, easy-to-understand communication. A
second commenter suggested that this section be retitled ``public
participation'' to be consistent with terms used in SAFETEA-LU. A third
commenter noted that this section does not propose a minimum standard
of how, when, or how often public involvement should take place. A
fourth commenter stated that the section's reference to accessibility
for people with disabilities repeats requirements found in other laws
and regulations and is confusing.
FTA Response: This section of the final circular is now titled
``Guidance on Promoting Inclusive Public Participation,'' and Appendix
D to the final circular includes references to documents that feature
additional examples of public involvement that are community based and
that address variations in learning and communication styles. On the
issue of standards for how, when, or how often public involvement
should take place, it should be noted that the DOT NEPA regulations
contain specific requirements for public notification and public
hearings in conjunction with proposed transportation projects subject
to EAs and EISs, and Section 5307 of the Federal Transit Laws requires
that grantees must have a locally developed process to solicit and
consider public comment before raising fares or carrying out a major
reduction of transportation. (FTA also requires that this process offer
the opportunity for a public hearing or public meeting.) These
requirements notwithstanding, FTA does not find it appropriate to set
sweeping standards for such factors as the time of day that public
hearings should be held, where meetings should be located, or how often
the public should be consulted, as these process decisions are most
widely accepted when the recipient or subrecipient, in consultation
with the public in its jurisdiction, develops a local approach. The
guidance in this section and the references in Appendix D are designed
to offer effective practices that can be used as local circumstances
warrant.
The final circular eliminates the preexisting reference to
providing assistance to people with disabilities in the course of
public involvement only because the final circular is designed to offer
guidance pursuant to the DOT Title VI regulations and the DOT Order on
Environmental Justice, which do not explicitly cover disability.
However, this modification to the circular does not alter the
obligation of grantees under the DOT ADA regulations at 49 CFR parts
27, 37, and 38 and Section 504 of the Rehabilitation Act to ensure that
their activities are accessible for people with disabilities.
Language Access
Chapter IV, Section 4 of the proposed circular required recipients
and subrecipients to administer programs and activities consistent with
the DOT
[[Page 18740]]
LEP Guidance. This policy guidance describes recipients' obligations to
provide language services and recommends that recipients prepare
language access implementation plans describing how reasonable steps
will be taken to ensure meaningful access by LEP people to recipients'
programs and activities.
Comments: FTA received seven comments on this provision. Two
commenters stated that it would be unduly burdensome to require their
agencies to prepare a language assistance plan. The first commenter
suggested that operators with less than 100 buses should be exempt from
developing a language implementation plan and the second suggested that
agencies be encouraged but not required to follow the DOT LEP Guidance.
Another commenter requested that FTA clarify how agencies can apply the
DOT LEP Guidance to LEP people who have low literacy in their native
language or who have a disability that contributes to their limited
English proficiency. Another commenter requested that the entire text
of the DOT LEP Guidance be incorporated into the Title VI Circular.
Another commenter noted that the circular's treatment of the DOT LEP
Guidance does not establish standards, but instead merely lists the
components that a plan should have. Another commenter questioned the
appropriateness of carrying forward a legal interpretation of national
origin discrimination that was not present at the passage of the Civil
Rights Act of 1964. Another commenter recommended that the DOT LEP
Guidance be updated to modify the document's ``safe harbor'' provisions
and that FTA work with the Census Bureau to develop data that would
assist transit providers in meeting the DOT LEP guidance.
FTA Response: Title VI and its implementing regulations require
that FTA recipients take responsible steps to ensure meaningful access
to the benefits, services, information, and other important portions of
their programs and activities for individuals who are Limited English
Proficient (LEP). The Final Circular provides recipients and
subrecipients with guidance on how to meet this requirement. In
general, agencies should demonstrate that they have taken responsible
steps to provide language assistance by developing and implementing a
language assistance plan according to the recommendations in the DOT
LEP Guidance. The final circular clarifies that certain FTA recipients
or subrecipients, such as those serving very few LEP people or those
with very limited resources may choose not to develop a written LEP
plan. However, the absence of a written LEP plan does not obviate the
underlying obligation to ensure meaningful access by LEP people to the
benefits, services, information, and other important portions of their
programs and activities. Appropriate language assistance should be
based on the recipient's analysis of the number or proportion of LEP
people eligible to be served or likely to be encountered by a program,
activity, or service; the frequency with which those people come into
contact with the program; the nature and importance of the program,
activity, or service to people with LEP; the resources available to the
agency, and the cost of providing language assistance.
Recipients whose LEP population includes members with low literacy
in their native language or people with disabilities that contribute to
language barriers should consider using symbol signs, pictograms, and
oral translation or providing accessible features consistent with DOT's
requirements under Section 504 of the Rehabilitation Act, the ADA, and
the ADAAG.
The final circular does not include the text of the entire DOT LEP
Guidance because merging this guidance into the circular would make the
document much longer and less usable by grantees. A link to the DOT LEP
Guidance can be found at FTA's Title VI Web site, http://www.fta.dot.gov/civilrights/civil_rights_5088.html. The circular does
not modify any provisions of the DOT LEP guidance, as this directive is
under the purview of the Office of the Secretary of Transportation.
Title VI Complaint Procedures
Chapter IV, Section 5 of the proposed circular instructed
recipients and subrecipients to develop procedures for investigating
and tracking Title VI complaints filed against them and make their
procedures for filing a complaint available to members of the public
upon request.
Comments: One organization commented on this provision. The
commenter noted that there is no requirement for recipients and
subrecipients to develop procedures for investigating and tracking
environmental justice and limited English proficiency complaints, to
notify the public on how to file an environmental justice or LEP
complaint, or to include a list of such complaints in its report to
FTA.
FTA Response: Recipients and subrecipients who receive complaints
that beneficiaries were denied the benefits of, excluded from
participation in, or subject to discrimination due to the
beneficiaries' limited English proficiency should treat these
complaints as complaints of national origin discrimination under Title
VI and do not need to establish separate procedures for investigating
complaints based on limited English proficiency. Recipients may wish to
track such complaints as ``Title VI/LEP'' complaints if such a tracking
system assists the organization in processing and resolving complaints.
Recipients and subrecipients who receive complaints filed by members of
minority and low-income populations can also investigate these
complaints under Title VI's prohibition of discrimination on the basis
of race and may wish to track such complaints as ``Title VI/EJ''
complaints. Recipients should not investigate complaints filed under
Title VI alleging discrimination solely on the basis of socioeconomic
status (e.g., income), as this is not a protected class under Title VI
and DOT Order 5610.2 does not establish a requirement to investigate
complaints filed on the basis of income or social class.
Record of Title VI Complaints, Investigations, and Lawsuits
Chapter IV, Section 6 of the proposed circular instructed
recipients and subrecipients to prepare and maintain a list of any
active investigations, lawsuits, or complaints naming the recipient
and/or subrecipient that allege discrimination on the basis of race,
color, or national origin.
Comments: One organization commented on this provision. The
commenter stated that the circular offers no objective criteria for the
contents of the required log of complaints, investigations, and
lawsuits.
FTA Response: This section of the final circular states that the
record of complaints, lawsuits, or investigations ``shall include the
date the investigation, lawsuit, or complaint was filed; a summary of
the allegation(s); the status of the investigation, lawsuit, or
complaint; and actions taken by the recipient or subrecipient in
response to the investigation, lawsuit, or complaint'' (see Chapter IV,
Section 6). This language establishes an objective criterion for the
contents of the log.
Notifying Beneficiaries of Protection under Title VI
Chapter IV, Section 7 of the proposed circular instructed
recipients and subrecipients to provide information to beneficiaries
regarding their agencies'
[[Page 18741]]
Title VI obligations and apprise beneficiaries of protections against
discrimination afforded to them by Title VI.
Comments: One entity commented on this provision. The organization
stated that the section's guidance and reference to disability, age,
and gender discrimination repeats requirements found in other
regulations and is confusing.
FTA Response: FTA acknowledges that this guidance overlaps with
other civil rights requirements, but the final circular retains the
suggestion that recipients and subrecipients publish a single,
consolidated notice of their nondiscrimination obligations rather than
separate notices that pertain to race, disability, age, gender, etc.
(see Chapter IV, Section 7 of Circular 4702.1A). The public is well
served when grantees provide a simple, comprehensive notice of all
pertinent nondiscrimination obligations.
Additional Information
Chapter IV, Section 8 of the proposed circular states that, at the
discretion of FTA, information other than that required by this
circular may be requested in writing from a recipient or subrecipient
to resolve compliance questions with Title VI and that failure to
provide this information may result in a finding of noncompliance.
Comments: One organization commented on this provision, stating
that the paragraph inappropriately creates a carte blanche ability
within FTA to create reporting requirements and that this section would
render compliance a ``moving target.''
FTA Response: Chapter IV Section 6 of the final circular retains
FTA's right to request information other than that specifically
required by the circular in order to resolve Title VI compliance
concerns. This provision is necessary to ensure that FTA fulfills
Section 21.11(c) of the DOT Title VI regulations. This section states
that ``the Secretary will make a prompt investigation whenever a
compliance review, report, complaint, or any other information
indicates a possible failure to comply with this part. The
investigation will include, where appropriate, a review of the
pertinent practices and policies of the recipient, the circumstances
under which this part occurred, and other factors relevant to a
determination as to whether the recipient has failed to comply with
this part.'' In most cases, FTA should be able to resolve allegations
of discrimination by requesting and reviewing the specific information
required in Circular 4702.1A. On an infrequent basis, FTA may request
additional information in order to ensure that pertinent practices and
policies of the recipient are reviewed. This flexibility to request
additional information does not alter how FTA will determine whether a
recipient is noncompliant with Title VI (discussed in Chapter II,
Section 5 of the final circular) or the procedures for effecting
compliance that FTA will take to ensure compliance (discussed in
Chapter X of the final circular).
Program-Specific Guidance for Recipients Serving Large Urbanized Areas
Chapter V of the proposed circular provided program-specific
guidance for recipients providing service to urbanized areas of 200,000
persons or more under 49 U.S.C. 5307.
Comments: Two organizations commented on the scope of this chapter.
One commenter asked whether this chapter's requirements apply to
transit providers that provide service within an urbanized area of
200,000 people or greater but whose service area (as defined by the
population residing within a three-fourth mile boundary of the system's
transit routes) is under 200,000. Another commenter stated that under
the proposed circular, the agency would need to respond to the general
reporting requirements since the majority of its service area lies
within an urbanized area with a population over 200,000; however, the
agency, which has a total of 32 busses and 2,100 daily boardings, lacks
the resources to prepare the same level of analysis required of large
transit operators.
FTA Response: The final circular clarifies that the program-
specific requirements in Chapter V apply to those entities that are
authorized to provide transit service to jurisdiction(s) where the
total population of the jurisdiction(s) is 200,000 or greater. For
example, a recipient with a charter to provide transit service to a
specific city that happens to have a population of 50,000 would not
need to comply with the requirements of this chapter even if the city
is located within an urbanized area with a total population of 200,000
people or more. Alternatively, a recipient that is chartered to provide
service to a county with a total population of 250,000 would be
required to comply with the requirements of this chapter even if the
total population residing within a certain distance of the recipient's
existing fixed routes is less than 200,000.
Data Collection and Policy Setting Requirements
Chapter V, Section 1a of the proposed circular required agencies to
which this chapter applies to prepare demographic service profile maps
and charts that will help the recipient determine whether transit
service is available to all segments of a recipient's population.
Subsequent sections recommended how these maps and charts should be
prepared.
Comments: Three organizations commented on this provision. One
commenter stated that the circular should clarify that maps should
identify areas where the percentage of the total minority or low-income
population exceeds the average minority or low-income population.
Another commenter asked FTA to clarify that producing maps alone does
not demonstrate compliance with Title VI. A third commenter applauded
the language in this provision that recommended but did not require
that maps and overlays be prepared using Geographic Information System
(GIS) technology.
FTA Response: Chapter V, Section 1a(2) of the final circular
clarifies that transit agencies may produce maps that highlight areas
where the percentage of minority and/or low-income people exceeds the
average proportion for the recipient's service area. The final version
retains language that does not require that maps be prepared using GIS.
The proposed circular would allow recipients to prepare demographic
maps and overlays in order to demonstrate that they are in compliance
with the requirement at 49 CFR Section 21.9(b) that recipients have
available racial and ethnic data showing the extent to which members of
minority groups are beneficiaries of programs receiving Federal
financial assistance. Recipients can also choose to fulfill this
obligation by implementing the options for collecting demographic
information at Chapter V, Sections 1b, or 1c of the final circular.
Section 1(a)(1) of the proposed circular recommended that agencies
prepare a base map of their transit service area that includes fixed
transit facilities, major activity centers, and trip generators and
that this map should highlight those facilities that were recently
modernized or are scheduled for modernization in the next five years.
Comments: Three entities commented on this provision. One commenter
asked for clarification on the provision's reference to ``transit
service area,'' asking whether the agencies should map their service
area or the urbanized area in which their service is located.
[[Page 18742]]
Another commenter suggested that recipients reference the financial
cost of facilities as well as mapping them, to present a spatial
distribution of the agency's investments and ensure that investments
can be proportionately distributed among all service areas. Another
commenter stated that the circular should define facility
``modernization.'' Two commenters stated that this section be amended
to clarify that only transit facilities subject to modernization should
be mapped.
FTA response: The final circular clarifies that transit agencies
should prepare maps of the jurisdiction(s) where they are authorized to
provide service as opposed to the urbanized area where the service is
located and that the maps should identify those transit facilities
subject to modernization. The final circular does not require that
recipients identify the financial cost of the facilities that would be
modernized because FTA does not want to imply that, in order to comply
with Title VI, recipients must invest equal amounts of money in
facilities that were located in or would serve different demographic
groups.
Section 1(a)(2) of the proposed circular recommended that agencies
prepare a demographic map that plots the information in Section 1(a)(1)
and also shades those Census tracts or traffic analysis zones where the
percentage of the total minority and low-income population residing in
these areas exceeds the average minority and low-income population for
the service area as a whole.
Comments: One organization commented on this provision, stating
that the proposed inclusion of low-income populations in demographic
maps complicates the analysis and is not required under Title VI.
FTA response: The final circular retains the recommendation to
identify areas with predominantly low-income populations, as this
guidance is consistent with DOT Order 5610.2's instructions to obtain
information on the race, color, national origin, and income level of
the population served and/or affected by a DOT component (see Order
5610.2, Section 7b).
Chapter V, Section 1b of the proposed circular instructed agencies
to which this chapter applies to collect information on the race,
color, national origin, income, and travel patterns of their riders
necessary to identify any disparate effects of proposed service and
fare changes and to assess the level and quality of service provided to
minority, low-income, and LEP people.
Comments: Seven entities commented on this provision of the
proposed circular. Three transit agencies expressed reluctance to
asking questions about the race, national origin, or income of their
riders and stated that including this information in customer surveys
would make the surveys more difficult to administer. Two commenters
suggested that agencies collect demographic information on
beneficiaries through Census data as opposed to on-board surveys.
Another commenter stated that it would not be feasible to administer
survey information at the route level and the sample size required to
produce a statistically significant sample would be burdensome. This
commenter noted that surveys conducted at the modal level might be
feasible. Another commenter stated that this provision's guidance to
administer surveys in multiple languages could be costly for large
agencies in particular. Other commenters asked that the circular define
or modify terms such as ``travel patterns'' and ``transportation
options'' that FTA recommends be included in the agency's customer
surveys and that the circular include a recommendation for how often
recipients shall be required to collect survey data.
FTA response: The final circular offers recipients the option of
collecting demographic information on their customers by using
ridership surveys but does not require that recipients take this step.
In lieu of collecting demographic information through ridership
surveys, recipients can prepare demographic maps and overlays pursuant
to Chapter V, Section 1a or implement an independent, locally developed
procedure, pursuant to Chapter V, Section 1c. Those recipients that do
choose to incorporate requests for demographic information into their
customer surveys are not required to conduct surveys on a route-by-
route basis. Administering surveys in multiple languages may be an
effective way for the agency to ensure that their surveys present an
accurate snapshot of their ridership. The final circular has modified
the references to ``travel patterns'' and ``transportation options''
consistent with the comments received.
Service Standards and Policies
Chapter V, Section 1c instructs recipients to which this chapter
applies to adopt system-wide service standards necessary to guard
against arbitrary or discriminatory service design or operational
decisions. This section also recommends that agencies adopt some
specific service standards or policies, which are described in Section
c (1) through c (7).
Comments: Seven organizations commented on this provision of the
proposed circular. One commenter requested that the circular clarify
that the service standards and policies in this section might not be
applicable to ADA complementary paratransit service providers. Another
commenter asked that the final circular distinguish between system-wide
service ``standards,'' which are defined by quantitative thresholds,
and system-wide service ``policies'' and noted that the proposed
service standards for vehicle assignment and transit security are
difficult to associate with a measurable standard. Another commenter
stated that this section would require grantees to adopt undefined
service standards or define a metric for a standard that is
recommended. Another commenter asked FTA to clarify whether the
standards listed in the proposed circular are required or optional. A
final commenter stated that this section imposes heavy and detailed
requirements for what have been traditionally local decisions. A final
commenter approved of the proposed circular's language that allowed
grantees to define their own service standards.
FTA response: The final circular requires that recipients adopt
quantitative system-wide service standards and that recipients also
adopt system-wide policies. System-wide policies differ from service
standards in that they are not necessarily based on a quantitative
threshold. What specific standards and policies are adopted, as well as
how standards and policies are defined, remain local decisions. The
final circular offers some examples of standards and policies that
recipients could adopt but clarifies that recipients can choose to set
standards and policies for other indicators. Providers of ADA
complementary paratransit are not required to adopt service standards
under Chapter V, Section 2. The DOT ADA complementary paratransit
regulations at 49 CFR Section 37.131 provide service criteria for
providers of ADA complementary paratransit.
Section 1(c)(1) suggests that recipients adopt a system-wide
standard for vehicle load, which the circular describes as a ratio of
passengers to the number of seats on a vehicle.
Comments: One organization commented on this provision of the
circular. The commenter suggested that this section define how vehicle
load should be measured, including how agencies should select the
location along a route for measurement. The commenter also stated that
agencies should have the flexibility to define
[[Page 18743]]
vehicle load in terms of passengers per vehicle at its maximum load
point as opposed to a ratio between passengers and the number of seats
on a vehicle.
FTA Response: The final circular states that vehicle load can be
expressed as the ratio of passengers per vehicle or the ratio of
passengers to the number of seats on a vehicle during a vehicle's
maximum load point. Agencies have flexibility to measure vehicle load
using locally developed procedures.
Section 1(c)(2) suggests that agencies adopt a system-wide standard
for vehicle assignment, which is described in the circular as the
process by which transit vehicles are placed into service in depots and
routes through the recipient's system.
Comments: Two organizations commented on this provision of the
circular. One commenter asked whether FTA expects agencies to set
vehicle assignment standards at the route level, and noted that it
would not be practical for the agency to equalize the age of vehicles
on all routes. The commenter also asked for guidance to clarify what
types of vehicles qualify as ``clean fuel'' vehicles and suggested that
FTA not create a hierarchy of clean fuel vehicles. Another commenter
suggested that the circular include a measurement standard to be used
to evaluate clean fuel vehicle deployment.
FTA response: The final circular gives recipients the discretion to
set vehicle assignment policies at the route or at the system level but
does not require that the age of vehicles on all routes be equal.
Rather than defining ``clean fuel vehicles'' the revised section
includes references to vehicles equipped with technology designed to
reduce emissions. The policy gives an example of a measurement standard
that recipients could use to evaluate the deployment of such vehicles.
Section 1(c)(4) suggests that agencies adopt system-wide standards
for on-time performance, described as a measure of the percentage of
runs completed as scheduled.
Comments: Two organizations commented on this provision. The
commenters stated that on-time performance is not a reasonable
measurement for Title VI evaluations and that too many factors
influence whether vehicles arrive on time.
FTA Response: The final circular includes a service standard for
on-time performance as an example of a system-wide standard that could
be adopted. Recipients can decline to adopt this standard if they do
not consider it a useful performance indicator.
Section 1(c)(5) suggests that agencies adopt system-wide standards
for the distribution of transit amenities, described as items of
comfort and convenience available to the general riding public.
Comments: Five organizations commented on this provision. Two
commenters agreed with the section's guidance that transit agencies
should not set standards for amenities, such as bus shelters, which are
solely installed and maintained by a separate jurisdiction. Another two
commenters requested that the circular encourage agencies to survey and
account for bus shelters and stops provided by third parties or local
municipalities. Another commenter suggested that agencies set standards
for distributing amenities within transit modes but that the standard
for distributing amenities be allowed to vary between modes.
FTA response: The final circular does not modify the proposed
circular's language on the distribution of transit amenities. Agencies
are not required to survey or account for bus shelters and stops
provided by parties not under their control; however, agencies may do
so if they determine that such action would assist them in complying
with Title VI or provide better customer service in general.
Section 1(c)(6) suggests that recipients set system-wide standards
for service availability, described as a general measure of the
distribution of routes within a transit district.
Comments: Two organizations commented on this provision. One
commenter sought clarification on whether the reference to a ``transit
district'' refers to an agency's service area or the urbanized area
where the agency is providing service. Another commenter noted that
this section offers the same guidance as the ``transit access''
provision in Circular 4702.1.
FTA response: Chapter V, Section 2a(4) of the final circular
references the recipient's ``service area'' as defined in Chapter II,
Section 6 of the final circular. This notice confirms that this
provision is comparable to the ``transit access'' service standard in
Circular 4702.1.
Section 1(c)(7) suggests that recipients set system-wide standards
for transit security, described as measures taken to protect a
recipient's employees and the public against any intentional act or
threat of violence or personal harm, either from a criminal or
terrorist act.
Comments: Five organizations commented on this provision. One
commenter applauded FTA for including this standard. Another asked FTA
to consider providing more specific guidance on how to eliminate racial
profiling in the context of transit security. Another commenter stated
that this standard should only be required when the transit agency, as
opposed to local law enforcement agencies, is responsible for providing
security on its system. A fourth commenter stated that this standard
would mean that local law enforcement activities would come under
Federal review. A fifth commenter noted that without the proper risk
and vulnerability assessments conducted and supported by FTA, a local
authority would be forming its own standard in a vacuum. The commenter
stated that a clear national standard and process will guarantee
individual liberties while protecting transit infrastructure.
FTA response: Appendix D includes a reference to DOT's policy
statement, ``Carrying Out Transportation Inspection and Safety
Responsibilities in a Nondiscriminatory Manner,'' which can be found at
http://airconsumer.ost.dot.gov/rules/20011012.htm. This statement is a
reminder to DOT employees and those carrying out transportation
inspection and enforcement responsibilities with DOT financial support
of longstanding DOT policy prohibiting unlawful discrimination against
individuals because of their race, color, religion, ethnicity, or
national origin. As was referenced in this notice's discussion of
standards for the distribution of transit amenities, a recipient should
only set system-wide policies for those aspects of transit security
that it has the authority to implement. As with the other service
standards, system-wide security policies will be set at the local level
and FTA will not dictate what a recipient's policies should be. The
circular's reference to transit security does not conflict with prior
FTA directives to conduct risk and vulnerability assessments and to
develop consistent policies.
Equity Analysis of Service and Fare Changes
Chapter V, Section 1d of the proposed circular instructed
recipients to which this chapter applies to evaluate significant
system-wide service and fare changes and proposed improvements at the
planning and programming stages to determine whether those changes have
a discriminatory impact.
Comments: Four organizations commented on this provision. Two
commenters stated that the circular should provide direction for
evaluating service restructuring and improvements as well as reductions
in transit service. One commenter suggested that the circular clarify
that Title VI evaluations be done at the same time that options
[[Page 18744]]
are being proposed. Another commenter suggested that the circular adopt
their agency's definition of a ``major service reduction.'' Another
commenter expressed concern that their agency would need to evaluate
service changes that had already gone into effect using the updated
guidance.
FTA response: The final circular requires that recipients to which
this chapter applies shall evaluate significant system-wide service and
fare changes and proposed improvements at the planning and programming
stages to determine whether those changes have a discriminatory impact.
For service changes, this requirement applies to ``major service
changes'' only. The recipient should have established guidelines or
thresholds for what it considers a ``major'' change to be. Often, this
is defined as a numerical standard, such as a change that affects 25
percent of service hours of a route. FTA recommends that recipients
evaluate the impacts of their service and/or fare changes using one of
two options (see Circular 4702.1A, Chapter V, Section 4). The final
version of this provision continues to state that the recipient's
evaluation should occur at the planning and programming stages.
Recipients will not be required to include in their compliance reports
to FTA an analysis of service changes that went into effect before the
final circular was published. The final circular does not adopt a
specific definition for a major service reduction to ensure that
recipients can establish their own guidelines or thresholds for what
they consider major service changes to be.
Section 1(d)1(1)(a) of the proposed circular recommended that
recipients evaluate the effects of proposed route eliminations on
minority and low-income populations by mapping the routes that would be
eliminated overlaid on a demographic map that highlights those Census
tracts where the minority and low-income population exceeds the service
area average.
Comments: Three organizations commented on this provision. One
commenter stated that the circular should clarify that data from
ridership surveys as well as maps should be used to evaluate the
impacts of route eliminations. In contrast, another agency stated that
customer survey data is not extensive enough to support an analysis of
the effects of eliminating individual routes. Another agency stated
that requiring a new map for each proposed service change would be
burdensome and that agencies should be encouraged to use the evaluation
methods that are most effective.
FTA response: The final circular gives agencies the option of
evaluating service and fare changes according to the procedures in
Chapter V, Section 4a. Agencies also have the option to prepare an
evaluation based on a modified version of these procedures or to
develop their own methodology in order to determine whether system-wide
service and fare changes would have adverse and disproportionately high
effects. Chapter V, Section 4b states that any locally developed
alternative shall include a description of the methodology used to
determine the impact of the service and fare change, a determination as
to whether the proposed change would have discriminatory impacts, and a
description of what, if any, action was taken by the agency in response
to the analysis conducted.
Section 1(d)(3) of the proposed circular recommended that agencies
consider, as part of their evaluation of the impacts of service changes
on protected groups, actions that the agency would take to minimize,
mitigate, or offset any adverse effects of fare and service changes on
minority and low-income populations.
Comments: One organization commented on this provision. The
commenter stated that this section could result in the requirement for
non-minority passengers to subsidize fare increases for minority
passengers.
FTA response: The final circular retains the recommendation that
agencies take minimizing, mitigating, and offsetting actions into
account when analyzing the effects of their service or fare changes.
This provision is consistent with the considerations expressed in the
DOT Order on Environmental Justice to avoid, minimize, and/or mitigate
disproportionately high and adverse environmental and public health
effects and interrelated social and economic effects, and provide
offsetting benefits and opportunities to enhance communities,
neighborhoods, and individuals affected by DOT programs, policies, and
activities (see DOT Order 5610.2, Section 7(c)(2)).
Section 1(d)(4) of the proposed circular recommended that agencies
determine which, if any, of the service or fare change proposals under
consideration would disproportionately affect minority and low-income
riders. The section advised recipients that they can implement a fare
increase or major service reduction that would have disproportionate
effects if the recipient demonstrates that the action meets a
substantial need that is in the public interest and that alternatives
would have more severe adverse effects than the preferred alternative.
Comments: Two entities commented on this provision. One commenter
suggested that the circular clarify that an analysis of
disproportionate effects would require a comparison of the effects of
the change on minority versus non-minority riders. Another commenter
stated that this section would mistakenly transform the internal data
collection and analysis guidelines contained in the DOT Order on
Environmental Justice into requirements for grantees to use in
distributing transit resources and, as such, would severely impact
State and local decisions on how to spend State and local tax and bond
revenues.
FTA response: Chapter V, Section 4a(4) of the final circular
recommends that, as part of their evaluation of service and fare
changes, recipients should determine which, if any, of the proposals
under consideration would have a disproportionately high and adverse
effect (as defined in Chapter II, Section 6) on minority and low-income
riders. Because the DOT Order 5610.2 applies to policies, programs, and
other activities undertaken, funded, or approved by FTA, including
policy decisions and systems planning, the circular's guidance that
recipients identify and address the impacts of service and fare change
proposals on minority and low-income populations is appropriate. This
guidance does not mean that FTA will dictate or even recommend what
specific service or fare changes the agency should ultimately adopt.
Pursuant to 49 U.S.C. Section 5334(11)(b)(1), FTA is prohibited from
regulating operations and charges. The provisions in the final circular
are included to ensure that recipients take proactive action to ensure
that no person is excluded from participation in or denied the benefits
of programs or activities on the grounds of race, color, and national
origin (pursuant to 49 CFR Section 21.5(b)(7)) and to ensure that
planning and programming activities that have the potential to have a
disproportionately high and adverse effect on human health or the
environment include explicit consideration of the effects on minority
populations and low-income populations, (pursuant to DOT Order 5610.2
Section 4b(1)).
Monitoring Requirements
Chapter V, Section 2 of the proposed circular instructed recipients
to monitor the level and quality of the transit service they provide to
ensure that service is being provided on an equitable basis. This
section also
[[Page 18745]]
recommended specific methodologies that recipients could use to monitor
the level and quality of service.
Comments: Two organizations commented on this provision. One
commenter suggested that the circular require that agencies take
corrective action if monitoring confirms disparities in the level and
quality of transit service. A second commenter stated that the proposed
methodology for analyzing results of customer surveys at Chapter V,
Section 2c of the proposed circular is inconsistent with the quality of
service methodology at Chapter V, Section 2b of the proposed circular,
even though both methodologies seek to determine whether there are
significant differences in the quality of service being provided to
different demographic groups.
FTA response: Chapter V, Section 5 of the final circular states
that if recipient monitoring determines that prior decisions have
resulted in disparate impacts, agencies shall take corrective action to
remedy the disparities. The final circular eliminates the inconsistency
between the recommended customer survey monitoring procedures in
Chapter V, Section 1b and the customer surveying procedures in Chapter
V, Section 5c.
Preparing and Submitting a Title VI Report
Chapter V, Section 3 instructs recipients to which this chapter
applies to prepare and submit a Title VI report that documents their
compliance with the requirements of Chapter V as well as with the
requirements for all recipients listed in Chapter IV.
Comments: Two organizations commented on this provision. One
commenter stated that the terms used to describe the list of items that
should be submitted to FTA should reference the terms used earlier in
the chapter. A second commenter said that FTA should set time frames
for its review and approval of the Title VI submittals required in this
section.
FTA response: The final circular uses terms consistently throughout
the document. The guidance on reporting does not include a set time
frame for when FTA will approve or disapprove a submission; however,
FTA's Office of Civil Rights strives to provide a prompt response to
the se submittals. FTA is exploring the option of allowing grantees to
submit their reports via FTA's Transportation Electronic Award
Management System (TEAM-Web), which should expedite the submission and
review of these reports.
Statewide Transportation Planning Activities
Chapter VI, Section 1 of the proposed circular instructed State
DOTs to have an analytic basis in place for certifying their compliance
with Title VI.
Comments: Three organizations commented on this provision. Two
organizations suggested that, prior to certifying compliance with Title
VI, State DOTs be required to develop and conduct specific statewide
analytical processes to meet this requirement. One commenter stated
that such disparity studies should include comparisons of investment
and spending in different urban areas within the state. The commenter
said that State DOTs need to undertake their own analytical process
rather than compiling the analytical efforts conducted by the MPOs in
the state. A second commenter stated that there is no requirement for
corrective action should the analytical process disclose disparities.
FTA response: The final circular offers guidance that State
Departments of Transportation integrate, into statewide planning
activities, considerations expressed in the DOT Order on Environmental
Justice, by having an analytic basis in place for certifying compliance
with Title VI. This analysis should evaluate the state's own planning
activities and should not consist of a summary of the analysis
conducted by MPOs. State DOTs can compare investments and spending in
different urban areas within the state as part of their efforts to meet
this requirement. If, after conducting a State Management Review,
Compliance Review, or investigation in response to a discrimination
complaint, FTA determines that a state has taken action that is
inconsistent with the DOT Title VI regulations in the context of
transportation planning, FTA will require the State DOT to take
corrective action.
Program Administration
Chapter VI, Section 2 of the proposed circular instructed State
DOTs or other State administrating agencies to document that they pass
through Federal funds to subrecipients without regard to race, color,
and national origin.
Comments: Two organizations commented on this provision. One
commenter stated that FTA should ensure that this section is consistent
with FTA's proposed guidance for public transit-human services
coordination. A second commenter stated that the criteria that States
may use to determine whether a subrecipient provides transit service to
a predominantly minority and low-income population (included in Section
2b) is inconsistent with the definitions section in Chapter II.
FTA response: FTA has determined that the language in the final
circular is consistent with the language in FTA's proposed circulars
for the Job Access and Reverse Commute (JARC) program, the New Freedom
program, and the Elderly Individuals and Individuals with Disabilities
program. The terms used in this chapter are consistent with the
definitions in Chapter II.
Metropolitan Transportation Planning Requirements
Chapter VII of the proposed circular instructed MPOs to have an
analytic basis in place for certifying their compliance with Title VI.
Comments: One organization commented on this provision. The
commenter stated that the proposed circular does not require MPOs take
corrective action should their analytical process disclose disparities.
The commenter also suggested that FTA acknowledge that not all MPOs are
subrecipients of State DOTs and those that are not should not be
required to report through the State DOT.
FTA response: The proposed and the final circular both included
language recommending that MPOs have an analytical process in place for
addressing as well as identifying imbalances in transportation to
different demographic groups if such imbalances are identified (see
Circular 4702.1A, Chapter VII, Section 1c). The final circular also
clarifies that those MPOs that receive funds directly from FTA should
report to FTA (Circular 4702.1A, Chapter VII, Section 2).
Compliance Reviews
Chapter VIII of the proposed circular described the review process
that FTA will follow when determining a recipient's or subrecipient's
compliance after the award of Federal financial assistance and what
information and actions are expected from recipients and subrecipients
that are subject to these reviews.
Comments: Two organizations commented on provisions in this
chapter. Both commenters stated that FTA should create an objective,
non-exhaustive list of factors for determining which recipients will be
selected for compliance reviews and that the compliance review
procedures could be clarified by use of a flow chart or description of
a sample review.
FTA response: Chapter VIII, Section 2 of the final circular issues
an objective
[[Page 18746]]
criteria for which recipients will be selected for a post-award
compliance review. This chapter also includes a flow chart of the
compliance review process.
Complaints
Chapter IX of the proposed circular described how FTA will respond
to complaints of discrimination under Title VI that are filed with FTA
against a recipient or subrecipient of FTA funds.
Comments: Four organizations commented on the provisions in this
chapter. Two commenters asked for more information on when and in what
format FTA will notify the public of its procedures for accepting and
investigating Title VI complaints. Another commenter stated that FTA
should require that recipients have free and fair access to complaints
filed against them and that FTA have a standard to determine when a
complaint is timely and that grant recipients have sufficient time to
respond to the complaint. Another commenter stated that favorable
reviews of recipients' Title VI programs should have some bearing in
expediting FTA action on Title VI complaints.
FTA response: FTA's Office of Civil Rights handles Title VI
complaints pursuant to the regulations at 49 CFR Section 21.11 and
using guidance contained in the ``Investigation Procedures Manual for
the Investigation and Resolution of Complaints Alleging Violations of
Title VI and Other Nondiscrimination Statutes.'' This manual was
published by DOJ's Civil Rights Division and can be found at http://www.usdoj.gov/crt/cor/coord/invmanual.htm. In addition, DOT's Office of
Civil Rights is developing an External Civil Rights Complaint
Processing Manual that contains guidance modeled after the DOJ manual.
Once this document is finalized FTA will investigate discrimination
complaints based on the procedures contained therein. In general, and
pursuant to the guidance in the DOJ manual, timely complaints are those
filed within 180 days of the occurrence of the alleged discrimination.
FTA strives to balance the need to promptly investigate and resolve
discrimination complaints with the need to give recipients adequate
time to respond to allegations of discrimination. In practice, FTA's
Office of Civil Rights typically asks recipients to respond to a
complaint within 30 to 60 days of the date of the request.
In addition, the final circular has been modified to state that
once the complainant agrees to release the complaint to the recipient
or subrecipient, FTA will provide the agency with the complaint. If the
complainant does not agree to release the complaint to the recipient or
subrecipient, FTA may administratively close the complaint (see Chapter
IX, Section 2).
Effecting Compliance
Chapter X of the proposed circular outlined FTA's procedures for
effecting compliance when it determines that a grantee is in
noncompliance with Title VI.
Comments: Two entities commented on the provisions in this chapter.
The commenters stated that FTA should identify in this chapter or
elsewhere its own commitment to Title VI and provide a benchmark for
grantees and the public as to what they can expect regarding diligent
enforcement. The commenters also stated that relevant parts of the
Supreme Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001),
be discussed in the circular. In this decision, the Supreme Court
foreclosed a private right of action to enforce DOJ and DOT
regulations. The commenters stated that, given the outcome of this
decision, FTA should verify if there are limitations to the ``Judicial
Review'' procedures discussed in Chapter X, Section 3.
FTA response: Both the proposed circular and the final circular
contain detailed guidelines as to when and under what circumstances FTA
will initiate proceedings. The guidance in this Chapter is consistent
with the requirement at 49 CFR Section 21.9(a) that the primary means
of effecting compliance with Title VI is through voluntary compliance
agreements with the recipients and that fund suspension or termination
or referrals to DOJ are means of last resort. These guidelines should
also allow FTA to balance its duty to permit informal resolution of
findings of noncompliance against its duty to effectuate, without undue
delay, the prohibition of continued assistance to programs or
activities that discriminate.
The final circular does not incorporate language from the Sandoval
decision; however, FTA is aware that, pursuant to this decision, filing
an administrative complaint with a recipient or with FTA is the only
recourse for individuals alleging that a recipient has engaged in
disparate impact discrimination in violation of the 49 CFR Section
21.5(b)(2). FTA takes seriously its obligation to provide due process
to parties involved in such complaints as well as its obligation to set
clear expectations for recipients on how to avoid disparate impact
discrimination.
Appendices
The proposed circular included three checklists that listed the
reporting requirements that should be prepared and submitted to FTA.
Comments: Four entities commented on these appendices. Two
commenters stated that the checklists were beneficial tools and that it
would be helpful to add to the charts a column that referenced the
specific sections of the regulations that the reporting requirements
apply to. Another commenter stated that Appendix A should identify the
FTA Office to which a recipient or subrecipient should submit the
information and another commenter stated that it would be helpful to
add an index.
FTA response: The final circular includes appendices that have been
modified consistent with these comments (see Circular 4702.1A,
Appendices A, B, and C) and includes an index.
Issued in Washington, DC, this 6th day of April 2007.
James S. Simpson,
Administrator.
[FR Doc. E7-7066 Filed 4-12-07; 8:45 am]
BILLING CODE 4910-57-P