\[Federal Register: April 13, 2007 (Volume 72, Number 71)\]

\[Notices\]

\[Page 18732-18746\]

From the Federal Register Online via GPO Access \[wais.access.gpo.gov\]

\[DOCID:fr13ap07-119\]

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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.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov),
or on FTA\'s Web site, at
[http://www.fta.dot.gov](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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](http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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