[Federal Register Volume 72, Number 71 (Friday, April 13, 2007)]
[Notices]
[Pages 18732-18746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7066]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket Number: FTA-2005-23227]


Notice of Final Title VI Circular

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of Final Title VI and Title VI--Dependent Guidelines for

[[Page 18733]]

Federal Transit Administration Recipients.

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SUMMARY: The Federal Transit Administration (FTA) has revised its Title 
VI Circular 4702.1 and is publishing a new Circular 4702.1A, ``Title VI 
and Title VI--Dependent Guidelines for Federal Transit Administration 
Recipients.'' The purpose of this circular is to provide recipients and 
subrecipients of Federal Transit Administration (FTA) financial 
assistance with guidance and instructions necessary to carry out the 
U.S. Department of Transportation's (``DOT'' or the ``Department'') 
Title VI regulations (49 CFR part 21) and to integrate into their 
programs and activities considerations expressed in the Department's 
Order on Environmental Justice (Order 5610.2), and Policy Guidance 
Concerning Recipients' Responsibilities to Limited English Proficient 
(``LEP'') Persons (70 FR 74087, December 14, 2005). Circular 4702.1A 
includes requirements and procedures which, if followed, will ensure 
that no person in the United States shall, on the basis of race, color, 
or national origin, be excluded from participation in, denied the 
benefits of, or be subjected to discrimination under any program or 
activity receiving financial assistance from FTA.

DATES: This guidance becomes effective May 14, 2007. This circular 
supersedes Title VI Circular 4702.1, ``Title VI Program Guidelines for 
Urban Mass Transit Administration Recipients.''

SUPPLEMENTARY INFORMATION:

Availability of Final Circulars

    You may download the circular from the Department's Docket 
Management System (http://dms.dot.gov) by entering docket number 23227 
in the search field, and then clicking on ``reverse order.'' The 
circular is the most recently posted document. You may also download an 
electronic copy of the circular from FTA's Web site, at http://www.fta.dot.gov. Paper copies of the circular may be obtained by 
calling FTA's Administrative Services Help Desk, at 202-366-4865.

I. Why Has FTA Revised This Circular?

    Prior to this notice, FTA's Title VI Circular had not been revised 
since May 26, 1988. In the ensuing 18 years, much of the guidance in 
Circular 4702.1 has become outdated. Circular 4702.1A has been updated 
to incorporate developments in legislation, Executive Orders, DOT 
directives, and court cases that have transformed transportation policy 
and affected the rights and responsibilities of recipients and 
beneficiaries. These directives include the Intermodal Surface 
Transportation Equity Act (ISTEA), enacted in 1991; the Transportation 
Equity Act for the 21st Century (TEA-21), enacted in 1998; the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU), enacted in 2005; Executive Order 12898, 
``Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations'' (issued in 1994); the DOT 
Order on Environmental Justice 5610.2 (issued in 1997); Executive Order 
13166, ``Improving Access to Services for Persons with Limited English 
Proficiency'' (issued in 2000); and DOT's ``Policy Guidance Concerning 
Recipients'' Responsibilities to Limited English Proficient Persons'' 
(referred to as the ``DOT LEP Guidance'') issued in 2001 and reissued 
in 2005.
    In addition, Circular 4702.1 needed to be updated to eliminate 
outdated nomenclature, such as references to FTA as the ``Urban Mass 
Transit Administration'' and to statutes such as the ``Urban Mass 
Transit Act'' and the ``Federal Aid Urban System Program.''
    In the process of revising this circular, FTA took the following 
factors into consideration: The requirements of the DOT Title VI 
regulations at 49 CFR part 21; external Title VI guidance, including 
the Department of Justice's (DOJ's) Title VI Legal Manual and the 
Council on Environmental Quality's ``Environmental Justice Guidance 
Under the National Environmental Policy Act''; the outcomes of Title VI 
administrative complaints and lawsuits generated since the circular's 
last revision; the recommendations of the Government Accountability 
Office (GAO) in its November 2005 report on limited English proficiency 
(see GAO report, ``Transportation Services: Better Dissemination and 
Oversight of DOT's Guidance Could Lead to Improved Access for Limited 
English-Proficient Populations,'' GAO-06-52); changes in industry 
practices since the circular's last revision; and results of FTA Title 
VI oversight reviews. The Federal Register Notice accompanying FTA's 
draft Title VI Circular Federal Register, Vol. 71, No. 135, July 14, 
2006) contains a detailed description of how these factors were taken 
into account during the circular's revision process.
    This document does not include the final circular; electronic 
versions of the circulars may be found on the docket, at http://dms.dot.gov, or on FTA's Web site, at http://www.fta.dot.gov. Paper 
copies of the circulars may be obtained by contacting FTA's 
Administrative Services Help Desk, at 202-366-4865.

II. How Does the Final Circular Differ From the Proposed Circular?

    While much of the content of the final circular is identical to the 
proposed version, the final circular includes the following 
comprehensive changes made in response to comments received during 
FTA's July 14 to September 14, 2006, public comment period:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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

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steps to ensure meaningful access to their programs and activities by 
people with limited English proficiency; however, the final circular 
clarifies that certain FTA recipients or subrecipients, such as those 
serving very few LEP people or those with very limited resources may 
choose not to develop a written LEP plan as recommended in the DOT LEP 
Guidance.

Data Collection Methodology

    Comments: Three organizations commented on the data collection and 
analysis methodology in the proposed circular. One commenter requested 
that FTA restore the definition of ``minority transit route'' contained 
in Circular 4702.1. A second commenter requested that the proposed 
circular reinsert a modified definition of ``minority transit route'' 
as ``a route that has at least 40 percent of its total route mileage in 
Census tracts or traffic analysis zones with a percentage of minority 
population greater than the percentage of the minority population in 
the transit service area,'' and that agencies use this definition to 
assess the demographics of transit routes where no demographics on 
ridership based on customer survey data are available. A third 
commenter suggested that the circular define a ``minority transit 
route'' as a route where more than one-third of a route's passenger 
boardings are in minority areas or a route where more than one third of 
the stops are located in minority areas.
    FTA Response: The final circular does not include a definition of 
``minority route'' in part because comments received during the 
December 15, 2005 to January 17, 2006, comment period questioned the 
usefulness of this definition and in part because FTA wants to ensure 
that recipients have the option of using methodology that best fits 
their needs. If recipients choose to develop their own procedures in 
order to evaluate the impacts of service reductions, as is an option in 
Chapter V, part 1b, or if recipients choose to develop their own 
procedures to monitor transit service for equity concerns, as is an 
option in Chapter V, part 1d, they have the option to incorporate the 
old circular's definition of ``minority transit route'' or their own 
definition of a ``minority transit route'' into their locally developed 
procedures.

Title VI Requirements for Paratransit Service

    Comments: Two organizations commented on the proposed circular's 
treatment of paratransit service. One commenter requested that agencies 
that provide only paratransit service not be required to submit a Title 
VI report. A second commenter asked that FTA clarify the reporting 
requirements of agencies that provide only paratransit services.
    FTA Response: The final circular does not provide guidance or 
requirements for agencies that provide Americans with Disabilities Act 
(ADA) complementary paratransit service. Title VI guidance for this 
mode of transportation was not included in part because of concerns 
that Title VI requirements might conflict with the detailed 
requirements for ADA complementary paratransit contained in the DOT 
regulations implementing Titles II and III of the ADA (49 CFR part 37). 
In addition, FTA has not, in recent years, received complaints that ADA 
complementary paratransit providers were discriminating on the basis of 
race, color, or national origin, nor have we received requests for 
guidance in this area. If FTA receives specific complaints that ADA 
complementary paratransit providers are engaging in disparate treatment 
or disparate impact discrimination, we will investigate such complaints 
and work with the transit provider to ensure that paratransit service 
is being administered consistent with Title VI.
    The general requirements presented in Chapter IV of the circular, 
including the reporting requirements, would apply to agencies that 
provide demand-response transportation that is available to the general 
public or, in the case of services funded under FTA's Section 5310 
program, is open to eligible older adults and individuals with 
disabilities. The requirements of this chapter also apply to providers 
of fixed-route transportation.

Minority Representation on Decision Making Bodies

    Comments: One organization noted that the proposed circular 
eliminated a provision in Circular 4702.1 that recipients provide a 
racial breakdown of their nonelected boards, advisory councils, or 
committees and provide a description of the efforts made to encourage 
minorities to participate on such boards, councils, or committees. The 
organization recommended that FTA require transit agencies and MPOs to 
report on how affected communities of color are represented on decision 
making bodies.
    FTA Response: In the course of its Title VI oversight activities, 
FTA determined that most transit agencies could not meet the original 
circular's requirement to encourage minority participation on their 
decision-making bodies because transit boards of directors are 
generally appointed by the local political leadership and agency staff 
believed it would be inappropriate to interject themselves into this 
appointment process. FTA considered including in its final circular a 
provision that would instruct agencies to analyze whether jurisdictions 
with concentrations of minority and/or low-income people were 
adequately represented on transit agency or metropolitan planning 
boards. The final circular does not include such a provision because, 
regardless of the results of such analyses, agency staff would still 
not have the authority to influence the composition of their boards of 
directors.

Nondiscrimination in Emergency Preparedness

    Comments: One organization recommended that the final circular 
include language requiring FTA grantees to provide assistance to 
transit dependent populations in emergencies.
    FTA Response: FTA is working to ensure that its grantees consider 
civil rights issues in the course of developing and implementing 
emergency preparedness, disaster response, and disaster recovery plans 
so that race, color, and national origin, including LEP status, do not 
impede access to information, evacuation, and relief services that are 
provided by FTA grantees. Appendix D of the final circular includes a 
reference to FTA's Disaster Response and Recovery Resource for Transit 
Agencies which can be found at http://transit-safety.volpe.dot.gov/Publications/order/singledoc.asp?docid=437. This resource provides 
local transit agencies and transportation providers with useful 
information and best practices in emergency preparedness and disaster 
response and recovery, including information on how to respond to the 
unique needs of low-income people, limited English proficient people, 
people with disabilities, and older adults.

The Circular Revision Process

    Comments: Three organizations commented on the process FTA is using 
to revise its Title VI Circular. One commenter asked if FTA plans to 
allow for additional input on the document. Another commenter noted 
that with many open dockets for comments, it is hard to be able to 
comment while maintaining business functions, and the agency often does 
not have time to evaluate and respond to all issues. Two commenters 
stated that, to avoid inconsistencies, the proposed circular should 
reference and adopt language

[[Page 18737]]

from the regulation on planning as well as the upcoming rulemaking to 
implement coordinated public transit-human services and the rulemaking 
for emergency preparedness for public transportation systems.
    FTA Response: As of the date of this publication, Circular 4702.1A 
is a final document: however, FTA will consider making changes to the 
circular if it receives comments from the public and determines that 
clarification to Circular 4702.1A is required. The provisions in this 
circular are consistent with the planning regulations at 23 CFR part 
450 as well as FTA's proposed Elderly Individuals and Individuals with 
Disabilities, Job Access and Reverse Commute, and New Freedom programs 
Circulars.

V. Section-by-Section Discussion

    FTA received comments from 27 entities on specific sections of the 
proposed circular. This section summarizes the provisions that were 
subject to comment, the nature of the comment, and FTA's response.

Objectives of the Title VI Circular

    Chapter II, part 1 of the proposed circular described the 
document's objectives, stating, in part, that the guidance and 
procedures will allow FTA recipients to ``ensure that the level and 
quality of transportation service is provided equitably and without 
regard to race, color, national origin, or income'' (Chapter II, part 
1a) and to ``avoid, minimize, or mitigate disproportionately high and 
adverse human health and environmental effects, including social and 
economic effects of programs and activities on minority populations and 
low-income populations'' (Chapter II, part 1b).
    Comments: FTA received comments on this section from two 
organizations. One commenter suggested that the language in Chapter II, 
part 1a inappropriately mixed Title VI and environmental justice 
concepts and would result in a requirement to distribute government 
resources equitably rather than ensuring a straightforward ban on 
discrimination against protected classes. A second commenter requested 
that the reference at Chapter II, part 1b to ``disproportionately 
high'' effects be changed to ``disproportionate'' effects to eliminate 
confusion over what constitutes a ``high'' effect and to clarify that 
the circular should have the effect of eliminating any disproportionate 
effect on minority and low-income populations.
    FTA Response: FTA has revised the ``Objectives'' section to state 
that the guidance and procedures in the circular will allow FTA 
recipients and subrecipients to ``ensure that the level and quality of 
transportation service is provided without regard to race, color, or 
national origin.'' (Circular 4702.1A, Chapter II, part 1a). This 
modified language clarifies that one of the objectives of the circular 
is to ensure nondiscrimination under Title VI. The final circular 
retains the reference to ``disproportionately high'' effects because 
this term is consistent with the terms used in the DOT Order on 
Environmental Justice.

Definitions

    Chapter II, part 6 of the proposed circular included a section 
defining terms that appear elsewhere in the document.
    Comments: Six entities commented on the proposed circular's 
definition of ``adverse effect,'' listed at Chapter II, part 6a. One 
commenter noted that the distinction between an ``adverse effect'' and 
``disparate effect'' is confusing. Two commenters requested that the 
proposed circular use the definition of ``adverse effect'' found in the 
DOT Order on Environmental Justice. Another commenter stated that the 
proposed definition is too broad and impractical for purposes of 
evaluating projects; however, the problem could be alleviated if the 
recipient has discretion to decide which effects need to be evaluated 
based on the given project. Another commenter stated that the 
definition should be amended to take into account adverse effects that 
can be mitigated. Another commenter stated that the proposed definition 
extends the Federal reach into areas of traditional State and local 
purview.
    FTA Response: The final circular retains the definition of 
``adverse effect'' in the proposed circular because it is the 
definition used in the DOT Order on Environmental Justice. Although the 
definition of ``adverse effect'' in the DOT Order and the circular 
includes a wide range of possible effects, recipients have discretion 
to decide which effects need to be evaluated in detail based on the 
nature of the proposed project and the characteristics of the physical 
and natural environment where the project is located. Recipients can 
also receive approval from FTA after demonstrating that the adverse 
effects identified will be avoided, minimized, or mitigated. NEPA's 
scoping process is used to determine which specific adverse effects 
need to be addressed. Circular 4702.1A reinforces DOT's longstanding 
position that attention to any disproportionately high and adverse 
effects to minority and low-income communities should be incorporated 
into the NEPA process, but it does not alter the NEPA requirements at 
23 CFR part 117 or extend the Federal reach into areas of traditional 
State and local purview. The final circular also includes DOJ's 
definition of ``disparate impact,'' to resolve confusion over the two 
terms.
    Comments: One entity commented on the proposed circular's 
definition of ``compliance'' and ``deficient'' listed at Section 6(c) 
and 6(e), respectively. One commenter stated that the definitions of 
these terms are inconsistent with how they are used in Section 5 of 
Chapter II.
    FTA Response: The final circular includes a definition of 
``deficiency'' and uses this term consistently.
    Comments: Two organizations commented on the proposed circular's 
definition of ``discrimination'' listed at Section 6d. One commenter 
suggested that the definition of discrimination be modified to include 
any intentional or unintentional ``act'' as well as ``pattern or 
practice,'' because the prohibition on discrimination at 49 CFR Section 
21.5 includes a reference to actions of discrimination. A second 
commenter requested that ``discrimination'' be defined in terms of 
``disproportionate effects'' as opposed to the proposed definition of 
an act that subjects a person to ``unequal treatment.''
    FTA Response: The final circular adopts the definition of 
``discrimination'' based on the definition used in the FHWA Title VI 
complaint manual. Under this definition, ``discrimination'' refers to 
``any act or inaction, whether intentional or unintentional, in any 
program or activity of a Federal aid recipient, subrecipient, or 
contractor that results in disparate treatment, disparate impact, or 
perpetuating the effects of prior discrimination based on race, color, 
or national origin.'' The final circular also includes definitions for 
``disparate treatment'' and ``disparate impact'' that are incorporated 
from the FHWA manual.
    Comments: Five entities commented on the proposed circular's 
definition of ``disproportionate effect'' listed at Section 6f. Two 
commenters requested that FTA replace this definition with the 
definition of an ``adverse and disproportionately high effect'' 
contained in the DOT Order on Environmental Justice. A third commenter 
stated that the different subdefinitions of the term are confusing and 
that the subdefinition at 6f(2) was more commonly used than the one at 
6(f)(3). A fourth commenter requested that the reference to the term 
``predominantly'' in the language on ``effects predominantly borne by

[[Page 18738]]

members of a minority race, color or national origin population * * *'' 
at Section 6(f)(1) be replaced by the word ``disproportionately'' and 
that the word ``significantly'' at 6f(3) be deleted. Another commenter 
suggested that FTA amend the definition reference ``adverse'' effects 
that are predominantly borne by minority and low-income populations and 
that the definition to take into account adverse effects that can be 
mitigated.
    FTA Response: The final circular adopts the definition of 
``disproportionately high and adverse effect'' used in the DOT Order on 
Environmental Justice in place of the ``disproportionate effect'' 
definition used in the proposed circular.
    Comments: One entity commented on the proposed circular's 
definition of ``fixed guideway'' listed at Section 6h. The commenter 
requested that FTA interpret this definition to exclude commuter rail 
lines with shared rights of way.
    FTA Response: The definition of ``fixed guideway'' in the final 
circular is taken, word-for-word, from FTA's authorizing legislation, 
which defines the term ``fixed guideway'' at 49 U.S.C. 5302(a)(4). FTA 
interprets ``fixed guideways'' to include commuter lines with shared 
rights of way.
    Comments: Four entities commented on the proposed circular's 
definition of ``low-income person'' listed at Section 6l. Three 
commenters requested that this definition be modified to allow agencies 
to develop local definitions of ``low-income.'' Two commenters 
requested that this definition be consistent with the definition in the 
U.S. Census.
    FTA Response: The final circular keeps the draft circular's 
definition of ``low-income'' because this term is adopted from the DOT 
Order on Environmental Justice. Although this definition references the 
Department of Health and Human Services' (HHS) poverty guidelines, it 
should be noted that HHS develops this level based on poverty data 
collected from the U.S. Census. FTA recipients can use Census data to 
determine the number and proportion of low-income people located in 
their service area.
    While the circular does not require that recipients identify low-
income populations using any definition other than the one adopted in 
the final circular, it does give recipients flexibility to collect 
demographic information on their beneficiaries using locally developed 
methods (see Chapter V, Section 1c). Grantees could adopt a locally 
developed definition of ``low-income,'' such as any household with an 
income of 25 to 50 percent of the metropolitan area's median household 
income.
    Comments: One organization commented on the proposed circular's 
definition of ``low-income population'' listed at Section 6m and 
``minority population'' listed at Section 6o. The commenter stated that 
these definitions are impractical as they fail to set a standard for 
determining whether a group is ``readily identifiable.''
    FTA Response: The final circular retains the definitions of 
``minority population'' and ``low-income population,'' which are 
adopted from the DOT Order on Environmental Justice. This notice 
clarifies that a ``readily identifiable'' population is one that can be 
identified using data from the U.S. Census.
    Comments: Four entities commented on the proposed circular's 
definition of a ``predominantly minority area'' in Section 6r and a 
``predominantly low-income area'' in Section 6s. One commenter 
requested that the circular delete the reference to ``predominantly'' 
minority or low-income areas. A second commenter requested that the 
definition is over-inclusive and that the document should be modified 
to define ``predominantly minority'' and ``predominantly low-income'' 
areas as areas where the minority population and low-income population 
proportion is two times or greater the proportion of these populations 
in the transit service area. A third commenter requested that the 
definition's reference to ``traffic analysis zone'' be deleted. A 
fourth commenter requested that the definition be used consistently 
throughout the circular.
    FTA Response: The final circular retains the definition of 
``predominantly minority area'' as ``a geographic area, such as a 
neighborhood, Census tract, or traffic analysis zone, where the 
proportion of minority people residing in that area exceeds the average 
proportion of minority people in the recipient's service area.'' The 
revised circular also retains the definition of a ``predominantly low-
income area'' as ``a geographic area, such as a neighborhood, Census 
tract, or traffic analysis zone, where the proportion of low-income 
people residing in that area exceeds the average proportion of low-
income people in the recipient's service area.'' Pursuant to Chapter V, 
Section 1c, recipients have flexibility to collect demographic 
information on their beneficiaries using thresholds for ``predominantly 
minority'' and ``predominantly low-income'' areas that are different 
from the terms as defined in Chapter II, Sections 6v and 6w of the 
final circular. For example, under the guidance offered in Chapter V, 
Section 1c, a recipient could implement a map-making procedure in order 
to highlight those Census tracts where the minority or low-income 
population was twice the average of the service area. This modification 
might be useful for recipients that serve regions with high overall 
minority or low-income populations and who wanted to ensure that their 
service was reaching areas where minority and low-income people were 
highly concentrated. In addition, the guidance at Chapter V, Section 1c 
of the final circular gives recipients the flexibility to prepare maps 
based on either Census tracts or traffic analysis zones. The final 
circular uses the terms ``predominantly minority'' and ``predominantly 
low-income'' consistently throughout the document.

Title VI Requirements for Applicants

    Chapter III of the proposed circular describes the procedures that 
all applicants for FTA financial assistance, including those entities 
applying for FTA assistance for the first time, should follow to comply 
with the DOT Title VI regulations.
    Comments: FTA received one comment on this chapter. The commenter 
noted that the Web link to the text of FTA's annual certifications and 
assurances no longer exists. The commenter also remarked that the 
circular offers no provisions to ensure that first-time applicants for 
Federal financial assistance have complied with Title VI.
    FTA Response: The final circular does not include a specific Web 
link for FTA's annual certifications and assurances because the exact 
link may change over time. However, applicants should be aware that the 
text of these certifications and assurances will generally be posted on 
FTA's Web site, http://www.fta.dot.gov. The circular does not offer 
provisions to ensure that applicants who have never before received 
Federal financial assistance have complied with Title VI because Title 
VI does not apply to entities that do not receive financial assistance 
from the Federal government.

General Reporting Requirements

    Chapter IV of the proposed circular describes the procedures that 
all FTA recipients and subrecipients shall follow to ensure that their 
activities comply with the DOT Title VI regulations and/or the DOT 
Order on Environmental Justice and the DOT LEP Guidance.
    Comments: FTA received comments from one organization on the 
purpose of

[[Page 18739]]

this chapter. The commenter stressed that Title VI analyses should be 
done and provided to communities prior to asking for community input on 
alternatives, the development of alternatives should be informed by 
community participation, and obtaining input from minority and low-
income communities on their transit needs should be the starting place, 
not a validation of decisions already made.
    FTA Response: The final circular states that an environmental 
justice analyses of construction projects should be incorporated into 
the agency's NEPA compliance (see Chapter IV, Section 2 of Circular 
4702.1A). NEPA and the DOT NEPA regulations require early and 
continuous public involvement in the identification of social, 
economic, and environmental impacts related to proposed projects. In 
addition, the public participation requirement for all recipients and 
subrecipients at Chapter IV, Section 3 of Circular 4702.1A includes 
language stating, ``An agency's public participation strategy shall 
offer early and continuous opportunities for the public to be involved 
in the identification of social, economic, and environmental impacts of 
proposed transportation decisions.''

Environmental Justice Analysis of Construction Projects

    Chapter IV, Section 2 of the proposed circular required recipients 
and subrecipients to include an environmental justice analysis in their 
applications for a documented Categorical Exclusion (CE), Environmental 
Assessment (EA), and Environmental Impact Statements (EISs) that 
precede construction projects. This section also recommended 
information that should be included in the recipient's or 
subrecipient's environmental justice analysis.
    Comments: FTA received six comments on this provision. One 
commenter noted that portions of this section refer to minority and 
low-income ``populations'' while other portions refer to minority and 
low-income ``communities'' and minority and low-income 
``neighborhoods'' and that the varying terms are confusing. Three 
commenters suggested either that agencies should not have to conduct a 
separate environmental justice analysis for projects subject to a Class 
II(d) CE or that decisions as to when such analyses are performed 
should be left to FTA's legal counsel. A third commenter requested that 
FTA modify its reference to major renovation or rehabilitation projects 
so that construction projects that do not increase a facility's space 
or use should be exempted from an environmental justice analysis. Other 
commenters sought clarification on the information that should be 
collected as part of the environmental justice analysis.
    FTA Response: The environmental justice analysis of construction 
projects in the final circular eliminates confusing references to 
``communities, neighborhoods, and populations'' with a consistent 
reference to minority and low-income populations within the study area 
of the project. Recipients and subrecipients do not have to perform an 
environmental justice analysis for any construction, renovation, or 
rehabilitation project that is not already subject to FTA's NEPA 
documentation requirements. However, if a recipient is required to 
submit an EIS, EA, or application for a CE, an environmental justice 
analysis should be part of the documentation that FTA already requires. 
The final circular recommends what information should be collected as 
part of an agency's environmental justice analysis.

Inclusive Public Involvement

    Chapter IV, Section 3 of the proposed circular required recipients 
and subrecipients to seek out and consider the viewpoints of minority 
and low-income populations in the course of conducing public outreach 
and involvement activities. This section also provided examples of 
public involvement measures targeted to overcome linguistic, 
institutional, cultural, economic, historical, or other barriers to 
participation.
    Comments: FTA received four comments on this provision of the 
proposed circular. One commenter suggested that FTA clarify it is the 
recipients' obligation to seek out and ensure participation by minority 
and low-income populations and include additional examples of effective 
information gathering in minority and low-income areas. The commenter 
suggested that the circular include examples of community-based 
strategies, where agencies have taken the initiative to seek input from 
transit-dependant people in their communities. The commenter stated 
that this section should also address variations in learning and 
communication styles and that the circular should state the importance 
of face-to-face contact and direct, easy-to-understand communication. A 
second commenter suggested that this section be retitled ``public 
participation'' to be consistent with terms used in SAFETEA-LU. A third 
commenter noted that this section does not propose a minimum standard 
of how, when, or how often public involvement should take place. A 
fourth commenter stated that the section's reference to accessibility 
for people with disabilities repeats requirements found in other laws 
and regulations and is confusing.
    FTA Response: This section of the final circular is now titled 
``Guidance on Promoting Inclusive Public Participation,'' and Appendix 
D to the final circular includes references to documents that feature 
additional examples of public involvement that are community based and 
that address variations in learning and communication styles. On the 
issue of standards for how, when, or how often public involvement 
should take place, it should be noted that the DOT NEPA regulations 
contain specific requirements for public notification and public 
hearings in conjunction with proposed transportation projects subject 
to EAs and EISs, and Section 5307 of the Federal Transit Laws requires 
that grantees must have a locally developed process to solicit and 
consider public comment before raising fares or carrying out a major 
reduction of transportation. (FTA also requires that this process offer 
the opportunity for a public hearing or public meeting.) These 
requirements notwithstanding, FTA does not find it appropriate to set 
sweeping standards for such factors as the time of day that public 
hearings should be held, where meetings should be located, or how often 
the public should be consulted, as these process decisions are most 
widely accepted when the recipient or subrecipient, in consultation 
with the public in its jurisdiction, develops a local approach. The 
guidance in this section and the references in Appendix D are designed 
to offer effective practices that can be used as local circumstances 
warrant.
    The final circular eliminates the preexisting reference to 
providing assistance to people with disabilities in the course of 
public involvement only because the final circular is designed to offer 
guidance pursuant to the DOT Title VI regulations and the DOT Order on 
Environmental Justice, which do not explicitly cover disability. 
However, this modification to the circular does not alter the 
obligation of grantees under the DOT ADA regulations at 49 CFR parts 
27, 37, and 38 and Section 504 of the Rehabilitation Act to ensure that 
their activities are accessible for people with disabilities.

Language Access

    Chapter IV, Section 4 of the proposed circular required recipients 
and subrecipients to administer programs and activities consistent with 
the DOT

[[Page 18740]]

LEP Guidance. This policy guidance describes recipients' obligations to 
provide language services and recommends that recipients prepare 
language access implementation plans describing how reasonable steps 
will be taken to ensure meaningful access by LEP people to recipients' 
programs and activities.
    Comments: FTA received seven comments on this provision. Two 
commenters stated that it would be unduly burdensome to require their 
agencies to prepare a language assistance plan. The first commenter 
suggested that operators with less than 100 buses should be exempt from 
developing a language implementation plan and the second suggested that 
agencies be encouraged but not required to follow the DOT LEP Guidance. 
Another commenter requested that FTA clarify how agencies can apply the 
DOT LEP Guidance to LEP people who have low literacy in their native 
language or who have a disability that contributes to their limited 
English proficiency. Another commenter requested that the entire text 
of the DOT LEP Guidance be incorporated into the Title VI Circular. 
Another commenter noted that the circular's treatment of the DOT LEP 
Guidance does not establish standards, but instead merely lists the 
components that a plan should have. Another commenter questioned the 
appropriateness of carrying forward a legal interpretation of national 
origin discrimination that was not present at the passage of the Civil 
Rights Act of 1964. Another commenter recommended that the DOT LEP 
Guidance be updated to modify the document's ``safe harbor'' provisions 
and that FTA work with the Census Bureau to develop data that would 
assist transit providers in meeting the DOT LEP guidance.
    FTA Response: Title VI and its implementing regulations require 
that FTA recipients take responsible steps to ensure meaningful access 
to the benefits, services, information, and other important portions of 
their programs and activities for individuals who are Limited English 
Proficient (LEP). The Final Circular provides recipients and 
subrecipients with guidance on how to meet this requirement. In 
general, agencies should demonstrate that they have taken responsible 
steps to provide language assistance by developing and implementing a 
language assistance plan according to the recommendations in the DOT 
LEP Guidance. The final circular clarifies that certain FTA recipients 
or subrecipients, such as those serving very few LEP people or those 
with very limited resources may choose not to develop a written LEP 
plan. However, the absence of a written LEP plan does not obviate the 
underlying obligation to ensure meaningful access by LEP people to the 
benefits, services, information, and other important portions of their 
programs and activities. Appropriate language assistance should be 
based on the recipient's analysis of the number or proportion of LEP 
people eligible to be served or likely to be encountered by a program, 
activity, or service; the frequency with which those people come into 
contact with the program; the nature and importance of the program, 
activity, or service to people with LEP; the resources available to the 
agency, and the cost of providing language assistance.
    Recipients whose LEP population includes members with low literacy 
in their native language or people with disabilities that contribute to 
language barriers should consider using symbol signs, pictograms, and 
oral translation or providing accessible features consistent with DOT's 
requirements under Section 504 of the Rehabilitation Act, the ADA, and 
the ADAAG.
    The final circular does not include the text of the entire DOT LEP 
Guidance because merging this guidance into the circular would make the 
document much longer and less usable by grantees. A link to the DOT LEP 
Guidance can be found at FTA's Title VI Web site, http://www.fta.dot.gov/civilrights/civil_rights_5088.html. The circular does 
not modify any provisions of the DOT LEP guidance, as this directive is 
under the purview of the Office of the Secretary of Transportation.

Title VI Complaint Procedures

    Chapter IV, Section 5 of the proposed circular instructed 
recipients and subrecipients to develop procedures for investigating 
and tracking Title VI complaints filed against them and make their 
procedures for filing a complaint available to members of the public 
upon request.
    Comments: One organization commented on this provision. The 
commenter noted that there is no requirement for recipients and 
subrecipients to develop procedures for investigating and tracking 
environmental justice and limited English proficiency complaints, to 
notify the public on how to file an environmental justice or LEP 
complaint, or to include a list of such complaints in its report to 
FTA.
    FTA Response: Recipients and subrecipients who receive complaints 
that beneficiaries were denied the benefits of, excluded from 
participation in, or subject to discrimination due to the 
beneficiaries' limited English proficiency should treat these 
complaints as complaints of national origin discrimination under Title 
VI and do not need to establish separate procedures for investigating 
complaints based on limited English proficiency. Recipients may wish to 
track such complaints as ``Title VI/LEP'' complaints if such a tracking 
system assists the organization in processing and resolving complaints. 
Recipients and subrecipients who receive complaints filed by members of 
minority and low-income populations can also investigate these 
complaints under Title VI's prohibition of discrimination on the basis 
of race and may wish to track such complaints as ``Title VI/EJ'' 
complaints. Recipients should not investigate complaints filed under 
Title VI alleging discrimination solely on the basis of socioeconomic 
status (e.g., income), as this is not a protected class under Title VI 
and DOT Order 5610.2 does not establish a requirement to investigate 
complaints filed on the basis of income or social class.

Record of Title VI Complaints, Investigations, and Lawsuits

    Chapter IV, Section 6 of the proposed circular instructed 
recipients and subrecipients to prepare and maintain a list of any 
active investigations, lawsuits, or complaints naming the recipient 
and/or subrecipient that allege discrimination on the basis of race, 
color, or national origin.
    Comments: One organization commented on this provision. The 
commenter stated that the circular offers no objective criteria for the 
contents of the required log of complaints, investigations, and 
lawsuits.
    FTA Response: This section of the final circular states that the 
record of complaints, lawsuits, or investigations ``shall include the 
date the investigation, lawsuit, or complaint was filed; a summary of 
the allegation(s); the status of the investigation, lawsuit, or 
complaint; and actions taken by the recipient or subrecipient in 
response to the investigation, lawsuit, or complaint'' (see Chapter IV, 
Section 6). This language establishes an objective criterion for the 
contents of the log.

Notifying Beneficiaries of Protection under Title VI

    Chapter IV, Section 7 of the proposed circular instructed 
recipients and subrecipients to provide information to beneficiaries 
regarding their agencies'

[[Page 18741]]

Title VI obligations and apprise beneficiaries of protections against 
discrimination afforded to them by Title VI.
    Comments: One entity commented on this provision. The organization 
stated that the section's guidance and reference to disability, age, 
and gender discrimination repeats requirements found in other 
regulations and is confusing.
    FTA Response: FTA acknowledges that this guidance overlaps with 
other civil rights requirements, but the final circular retains the 
suggestion that recipients and subrecipients publish a single, 
consolidated notice of their nondiscrimination obligations rather than 
separate notices that pertain to race, disability, age, gender, etc. 
(see Chapter IV, Section 7 of Circular 4702.1A). The public is well 
served when grantees provide a simple, comprehensive notice of all 
pertinent nondiscrimination obligations.

Additional Information

    Chapter IV, Section 8 of the proposed circular states that, at the 
discretion of FTA, information other than that required by this 
circular may be requested in writing from a recipient or subrecipient 
to resolve compliance questions with Title VI and that failure to 
provide this information may result in a finding of noncompliance.
    Comments: One organization commented on this provision, stating 
that the paragraph inappropriately creates a carte blanche ability 
within FTA to create reporting requirements and that this section would 
render compliance a ``moving target.''
    FTA Response: Chapter IV Section 6 of the final circular retains 
FTA's right to request information other than that specifically 
required by the circular in order to resolve Title VI compliance 
concerns. This provision is necessary to ensure that FTA fulfills 
Section 21.11(c) of the DOT Title VI regulations. This section states 
that ``the Secretary will make a prompt investigation whenever a 
compliance review, report, complaint, or any other information 
indicates a possible failure to comply with this part. The 
investigation will include, where appropriate, a review of the 
pertinent practices and policies of the recipient, the circumstances 
under which this part occurred, and other factors relevant to a 
determination as to whether the recipient has failed to comply with 
this part.'' In most cases, FTA should be able to resolve allegations 
of discrimination by requesting and reviewing the specific information 
required in Circular 4702.1A. On an infrequent basis, FTA may request 
additional information in order to ensure that pertinent practices and 
policies of the recipient are reviewed. This flexibility to request 
additional information does not alter how FTA will determine whether a 
recipient is noncompliant with Title VI (discussed in Chapter II, 
Section 5 of the final circular) or the procedures for effecting 
compliance that FTA will take to ensure compliance (discussed in 
Chapter X of the final circular).

Program-Specific Guidance for Recipients Serving Large Urbanized Areas

    Chapter V of the proposed circular provided program-specific 
guidance for recipients providing service to urbanized areas of 200,000 
persons or more under 49 U.S.C. 5307.
    Comments: Two organizations commented on the scope of this chapter. 
One commenter asked whether this chapter's requirements apply to 
transit providers that provide service within an urbanized area of 
200,000 people or greater but whose service area (as defined by the 
population residing within a three-fourth mile boundary of the system's 
transit routes) is under 200,000. Another commenter stated that under 
the proposed circular, the agency would need to respond to the general 
reporting requirements since the majority of its service area lies 
within an urbanized area with a population over 200,000; however, the 
agency, which has a total of 32 busses and 2,100 daily boardings, lacks 
the resources to prepare the same level of analysis required of large 
transit operators.
    FTA Response: The final circular clarifies that the program-
specific requirements in Chapter V apply to those entities that are 
authorized to provide transit service to jurisdiction(s) where the 
total population of the jurisdiction(s) is 200,000 or greater. For 
example, a recipient with a charter to provide transit service to a 
specific city that happens to have a population of 50,000 would not 
need to comply with the requirements of this chapter even if the city 
is located within an urbanized area with a total population of 200,000 
people or more. Alternatively, a recipient that is chartered to provide 
service to a county with a total population of 250,000 would be 
required to comply with the requirements of this chapter even if the 
total population residing within a certain distance of the recipient's 
existing fixed routes is less than 200,000.

Data Collection and Policy Setting Requirements

    Chapter V, Section 1a of the proposed circular required agencies to 
which this chapter applies to prepare demographic service profile maps 
and charts that will help the recipient determine whether transit 
service is available to all segments of a recipient's population. 
Subsequent sections recommended how these maps and charts should be 
prepared.
    Comments: Three organizations commented on this provision. One 
commenter stated that the circular should clarify that maps should 
identify areas where the percentage of the total minority or low-income 
population exceeds the average minority or low-income population. 
Another commenter asked FTA to clarify that producing maps alone does 
not demonstrate compliance with Title VI. A third commenter applauded 
the language in this provision that recommended but did not require 
that maps and overlays be prepared using Geographic Information System 
(GIS) technology.
    FTA Response: Chapter V, Section 1a(2) of the final circular 
clarifies that transit agencies may produce maps that highlight areas 
where the percentage of minority and/or low-income people exceeds the 
average proportion for the recipient's service area. The final version 
retains language that does not require that maps be prepared using GIS. 
The proposed circular would allow recipients to prepare demographic 
maps and overlays in order to demonstrate that they are in compliance 
with the requirement at 49 CFR Section 21.9(b) that recipients have 
available racial and ethnic data showing the extent to which members of 
minority groups are beneficiaries of programs receiving Federal 
financial assistance. Recipients can also choose to fulfill this 
obligation by implementing the options for collecting demographic 
information at Chapter V, Sections 1b, or 1c of the final circular.
    Section 1(a)(1) of the proposed circular recommended that agencies 
prepare a base map of their transit service area that includes fixed 
transit facilities, major activity centers, and trip generators and 
that this map should highlight those facilities that were recently 
modernized or are scheduled for modernization in the next five years.
    Comments: Three entities commented on this provision. One commenter 
asked for clarification on the provision's reference to ``transit 
service area,'' asking whether the agencies should map their service 
area or the urbanized area in which their service is located.

[[Page 18742]]

Another commenter suggested that recipients reference the financial 
cost of facilities as well as mapping them, to present a spatial 
distribution of the agency's investments and ensure that investments 
can be proportionately distributed among all service areas. Another 
commenter stated that the circular should define facility 
``modernization.'' Two commenters stated that this section be amended 
to clarify that only transit facilities subject to modernization should 
be mapped.
    FTA response: The final circular clarifies that transit agencies 
should prepare maps of the jurisdiction(s) where they are authorized to 
provide service as opposed to the urbanized area where the service is 
located and that the maps should identify those transit facilities 
subject to modernization. The final circular does not require that 
recipients identify the financial cost of the facilities that would be 
modernized because FTA does not want to imply that, in order to comply 
with Title VI, recipients must invest equal amounts of money in 
facilities that were located in or would serve different demographic 
groups.
    Section 1(a)(2) of the proposed circular recommended that agencies 
prepare a demographic map that plots the information in Section 1(a)(1) 
and also shades those Census tracts or traffic analysis zones where the 
percentage of the total minority and low-income population residing in 
these areas exceeds the average minority and low-income population for 
the service area as a whole.
    Comments: One organization commented on this provision, stating 
that the proposed inclusion of low-income populations in demographic 
maps complicates the analysis and is not required under Title VI.
    FTA response: The final circular retains the recommendation to 
identify areas with predominantly low-income populations, as this 
guidance is consistent with DOT Order 5610.2's instructions to obtain 
information on the race, color, national origin, and income level of 
the population served and/or affected by a DOT component (see Order 
5610.2, Section 7b).
    Chapter V, Section 1b of the proposed circular instructed agencies 
to which this chapter applies to collect information on the race, 
color, national origin, income, and travel patterns of their riders 
necessary to identify any disparate effects of proposed service and 
fare changes and to assess the level and quality of service provided to 
minority, low-income, and LEP people.
    Comments: Seven entities commented on this provision of the 
proposed circular. Three transit agencies expressed reluctance to 
asking questions about the race, national origin, or income of their 
riders and stated that including this information in customer surveys 
would make the surveys more difficult to administer. Two commenters 
suggested that agencies collect demographic information on 
beneficiaries through Census data as opposed to on-board surveys. 
Another commenter stated that it would not be feasible to administer 
survey information at the route level and the sample size required to 
produce a statistically significant sample would be burdensome. This 
commenter noted that surveys conducted at the modal level might be 
feasible. Another commenter stated that this provision's guidance to 
administer surveys in multiple languages could be costly for large 
agencies in particular. Other commenters asked that the circular define 
or modify terms such as ``travel patterns'' and ``transportation 
options'' that FTA recommends be included in the agency's customer 
surveys and that the circular include a recommendation for how often 
recipients shall be required to collect survey data.
    FTA response: The final circular offers recipients the option of 
collecting demographic information on their customers by using 
ridership surveys but does not require that recipients take this step. 
In lieu of collecting demographic information through ridership 
surveys, recipients can prepare demographic maps and overlays pursuant 
to Chapter V, Section 1a or implement an independent, locally developed 
procedure, pursuant to Chapter V, Section 1c. Those recipients that do 
choose to incorporate requests for demographic information into their 
customer surveys are not required to conduct surveys on a route-by-
route basis. Administering surveys in multiple languages may be an 
effective way for the agency to ensure that their surveys present an 
accurate snapshot of their ridership. The final circular has modified 
the references to ``travel patterns'' and ``transportation options'' 
consistent with the comments received.

Service Standards and Policies

    Chapter V, Section 1c instructs recipients to which this chapter 
applies to adopt system-wide service standards necessary to guard 
against arbitrary or discriminatory service design or operational 
decisions. This section also recommends that agencies adopt some 
specific service standards or policies, which are described in Section 
c (1) through c (7).
    Comments: Seven organizations commented on this provision of the 
proposed circular. One commenter requested that the circular clarify 
that the service standards and policies in this section might not be 
applicable to ADA complementary paratransit service providers. Another 
commenter asked that the final circular distinguish between system-wide 
service ``standards,'' which are defined by quantitative thresholds, 
and system-wide service ``policies'' and noted that the proposed 
service standards for vehicle assignment and transit security are 
difficult to associate with a measurable standard. Another commenter 
stated that this section would require grantees to adopt undefined 
service standards or define a metric for a standard that is 
recommended. Another commenter asked FTA to clarify whether the 
standards listed in the proposed circular are required or optional. A 
final commenter stated that this section imposes heavy and detailed 
requirements for what have been traditionally local decisions. A final 
commenter approved of the proposed circular's language that allowed 
grantees to define their own service standards.
    FTA response: The final circular requires that recipients adopt 
quantitative system-wide service standards and that recipients also 
adopt system-wide policies. System-wide policies differ from service 
standards in that they are not necessarily based on a quantitative 
threshold. What specific standards and policies are adopted, as well as 
how standards and policies are defined, remain local decisions. The 
final circular offers some examples of standards and policies that 
recipients could adopt but clarifies that recipients can choose to set 
standards and policies for other indicators. Providers of ADA 
complementary paratransit are not required to adopt service standards 
under Chapter V, Section 2. The DOT ADA complementary paratransit 
regulations at 49 CFR Section 37.131 provide service criteria for 
providers of ADA complementary paratransit.
    Section 1(c)(1) suggests that recipients adopt a system-wide 
standard for vehicle load, which the circular describes as a ratio of 
passengers to the number of seats on a vehicle.
    Comments: One organization commented on this provision of the 
circular. The commenter suggested that this section define how vehicle 
load should be measured, including how agencies should select the 
location along a route for measurement. The commenter also stated that 
agencies should have the flexibility to define

[[Page 18743]]

vehicle load in terms of passengers per vehicle at its maximum load 
point as opposed to a ratio between passengers and the number of seats 
on a vehicle.
    FTA Response: The final circular states that vehicle load can be 
expressed as the ratio of passengers per vehicle or the ratio of 
passengers to the number of seats on a vehicle during a vehicle's 
maximum load point. Agencies have flexibility to measure vehicle load 
using locally developed procedures.
    Section 1(c)(2) suggests that agencies adopt a system-wide standard 
for vehicle assignment, which is described in the circular as the 
process by which transit vehicles are placed into service in depots and 
routes through the recipient's system.
    Comments: Two organizations commented on this provision of the 
circular. One commenter asked whether FTA expects agencies to set 
vehicle assignment standards at the route level, and noted that it 
would not be practical for the agency to equalize the age of vehicles 
on all routes. The commenter also asked for guidance to clarify what 
types of vehicles qualify as ``clean fuel'' vehicles and suggested that 
FTA not create a hierarchy of clean fuel vehicles. Another commenter 
suggested that the circular include a measurement standard to be used 
to evaluate clean fuel vehicle deployment.
    FTA response: The final circular gives recipients the discretion to 
set vehicle assignment policies at the route or at the system level but 
does not require that the age of vehicles on all routes be equal. 
Rather than defining ``clean fuel vehicles'' the revised section 
includes references to vehicles equipped with technology designed to 
reduce emissions. The policy gives an example of a measurement standard 
that recipients could use to evaluate the deployment of such vehicles.
    Section 1(c)(4) suggests that agencies adopt system-wide standards 
for on-time performance, described as a measure of the percentage of 
runs completed as scheduled.
    Comments: Two organizations commented on this provision. The 
commenters stated that on-time performance is not a reasonable 
measurement for Title VI evaluations and that too many factors 
influence whether vehicles arrive on time.
    FTA Response: The final circular includes a service standard for 
on-time performance as an example of a system-wide standard that could 
be adopted. Recipients can decline to adopt this standard if they do 
not consider it a useful performance indicator.
    Section 1(c)(5) suggests that agencies adopt system-wide standards 
for the distribution of transit amenities, described as items of 
comfort and convenience available to the general riding public.
    Comments: Five organizations commented on this provision. Two 
commenters agreed with the section's guidance that transit agencies 
should not set standards for amenities, such as bus shelters, which are 
solely installed and maintained by a separate jurisdiction. Another two 
commenters requested that the circular encourage agencies to survey and 
account for bus shelters and stops provided by third parties or local 
municipalities. Another commenter suggested that agencies set standards 
for distributing amenities within transit modes but that the standard 
for distributing amenities be allowed to vary between modes.
    FTA response: The final circular does not modify the proposed 
circular's language on the distribution of transit amenities. Agencies 
are not required to survey or account for bus shelters and stops 
provided by parties not under their control; however, agencies may do 
so if they determine that such action would assist them in complying 
with Title VI or provide better customer service in general.
    Section 1(c)(6) suggests that recipients set system-wide standards 
for service availability, described as a general measure of the 
distribution of routes within a transit district.
    Comments: Two organizations commented on this provision. One 
commenter sought clarification on whether the reference to a ``transit 
district'' refers to an agency's service area or the urbanized area 
where the agency is providing service. Another commenter noted that 
this section offers the same guidance as the ``transit access'' 
provision in Circular 4702.1.
    FTA response: Chapter V, Section 2a(4) of the final circular 
references the recipient's ``service area'' as defined in Chapter II, 
Section 6 of the final circular. This notice confirms that this 
provision is comparable to the ``transit access'' service standard in 
Circular 4702.1.
    Section 1(c)(7) suggests that recipients set system-wide standards 
for transit security, described as measures taken to protect a 
recipient's employees and the public against any intentional act or 
threat of violence or personal harm, either from a criminal or 
terrorist act.
    Comments: Five organizations commented on this provision. One 
commenter applauded FTA for including this standard. Another asked FTA 
to consider providing more specific guidance on how to eliminate racial 
profiling in the context of transit security. Another commenter stated 
that this standard should only be required when the transit agency, as 
opposed to local law enforcement agencies, is responsible for providing 
security on its system. A fourth commenter stated that this standard 
would mean that local law enforcement activities would come under 
Federal review. A fifth commenter noted that without the proper risk 
and vulnerability assessments conducted and supported by FTA, a local 
authority would be forming its own standard in a vacuum. The commenter 
stated that a clear national standard and process will guarantee 
individual liberties while protecting transit infrastructure.
    FTA response: Appendix D includes a reference to DOT's policy 
statement, ``Carrying Out Transportation Inspection and Safety 
Responsibilities in a Nondiscriminatory Manner,'' which can be found at 
http://airconsumer.ost.dot.gov/rules/20011012.htm. This statement is a 
reminder to DOT employees and those carrying out transportation 
inspection and enforcement responsibilities with DOT financial support 
of longstanding DOT policy prohibiting unlawful discrimination against 
individuals because of their race, color, religion, ethnicity, or 
national origin. As was referenced in this notice's discussion of 
standards for the distribution of transit amenities, a recipient should 
only set system-wide policies for those aspects of transit security 
that it has the authority to implement. As with the other service 
standards, system-wide security policies will be set at the local level 
and FTA will not dictate what a recipient's policies should be. The 
circular's reference to transit security does not conflict with prior 
FTA directives to conduct risk and vulnerability assessments and to 
develop consistent policies.

Equity Analysis of Service and Fare Changes

    Chapter V, Section 1d of the proposed circular instructed 
recipients to which this chapter applies to evaluate significant 
system-wide service and fare changes and proposed improvements at the 
planning and programming stages to determine whether those changes have 
a discriminatory impact.
    Comments: Four organizations commented on this provision. Two 
commenters stated that the circular should provide direction for 
evaluating service restructuring and improvements as well as reductions 
in transit service. One commenter suggested that the circular clarify 
that Title VI evaluations be done at the same time that options

[[Page 18744]]

are being proposed. Another commenter suggested that the circular adopt 
their agency's definition of a ``major service reduction.'' Another 
commenter expressed concern that their agency would need to evaluate 
service changes that had already gone into effect using the updated 
guidance.
    FTA response: The final circular requires that recipients to which 
this chapter applies shall evaluate significant system-wide service and 
fare changes and proposed improvements at the planning and programming 
stages to determine whether those changes have a discriminatory impact. 
For service changes, this requirement applies to ``major service 
changes'' only. The recipient should have established guidelines or 
thresholds for what it considers a ``major'' change to be. Often, this 
is defined as a numerical standard, such as a change that affects 25 
percent of service hours of a route. FTA recommends that recipients 
evaluate the impacts of their service and/or fare changes using one of 
two options (see Circular 4702.1A, Chapter V, Section 4). The final 
version of this provision continues to state that the recipient's 
evaluation should occur at the planning and programming stages. 
Recipients will not be required to include in their compliance reports 
to FTA an analysis of service changes that went into effect before the 
final circular was published. The final circular does not adopt a 
specific definition for a major service reduction to ensure that 
recipients can establish their own guidelines or thresholds for what 
they consider major service changes to be.
    Section 1(d)1(1)(a) of the proposed circular recommended that 
recipients evaluate the effects of proposed route eliminations on 
minority and low-income populations by mapping the routes that would be 
eliminated overlaid on a demographic map that highlights those Census 
tracts where the minority and low-income population exceeds the service 
area average.
    Comments: Three organizations commented on this provision. One 
commenter stated that the circular should clarify that data from 
ridership surveys as well as maps should be used to evaluate the 
impacts of route eliminations. In contrast, another agency stated that 
customer survey data is not extensive enough to support an analysis of 
the effects of eliminating individual routes. Another agency stated 
that requiring a new map for each proposed service change would be 
burdensome and that agencies should be encouraged to use the evaluation 
methods that are most effective.
    FTA response: The final circular gives agencies the option of 
evaluating service and fare changes according to the procedures in 
Chapter V, Section 4a. Agencies also have the option to prepare an 
evaluation based on a modified version of these procedures or to 
develop their own methodology in order to determine whether system-wide 
service and fare changes would have adverse and disproportionately high 
effects. Chapter V, Section 4b states that any locally developed 
alternative shall include a description of the methodology used to 
determine the impact of the service and fare change, a determination as 
to whether the proposed change would have discriminatory impacts, and a 
description of what, if any, action was taken by the agency in response 
to the analysis conducted.
    Section 1(d)(3) of the proposed circular recommended that agencies 
consider, as part of their evaluation of the impacts of service changes 
on protected groups, actions that the agency would take to minimize, 
mitigate, or offset any adverse effects of fare and service changes on 
minority and low-income populations.
    Comments: One organization commented on this provision. The 
commenter stated that this section could result in the requirement for 
non-minority passengers to subsidize fare increases for minority 
passengers.
    FTA response: The final circular retains the recommendation that 
agencies take minimizing, mitigating, and offsetting actions into 
account when analyzing the effects of their service or fare changes. 
This provision is consistent with the considerations expressed in the 
DOT Order on Environmental Justice to avoid, minimize, and/or mitigate 
disproportionately high and adverse environmental and public health 
effects and interrelated social and economic effects, and provide 
offsetting benefits and opportunities to enhance communities, 
neighborhoods, and individuals affected by DOT programs, policies, and 
activities (see DOT Order 5610.2, Section 7(c)(2)).
    Section 1(d)(4) of the proposed circular recommended that agencies 
determine which, if any, of the service or fare change proposals under 
consideration would disproportionately affect minority and low-income 
riders. The section advised recipients that they can implement a fare 
increase or major service reduction that would have disproportionate 
effects if the recipient demonstrates that the action meets a 
substantial need that is in the public interest and that alternatives 
would have more severe adverse effects than the preferred alternative.
    Comments: Two entities commented on this provision. One commenter 
suggested that the circular clarify that an analysis of 
disproportionate effects would require a comparison of the effects of 
the change on minority versus non-minority riders. Another commenter 
stated that this section would mistakenly transform the internal data 
collection and analysis guidelines contained in the DOT Order on 
Environmental Justice into requirements for grantees to use in 
distributing transit resources and, as such, would severely impact 
State and local decisions on how to spend State and local tax and bond 
revenues.
    FTA response: Chapter V, Section 4a(4) of the final circular 
recommends that, as part of their evaluation of service and fare 
changes, recipients should determine which, if any, of the proposals 
under consideration would have a disproportionately high and adverse 
effect (as defined in Chapter II, Section 6) on minority and low-income 
riders. Because the DOT Order 5610.2 applies to policies, programs, and 
other activities undertaken, funded, or approved by FTA, including 
policy decisions and systems planning, the circular's guidance that 
recipients identify and address the impacts of service and fare change 
proposals on minority and low-income populations is appropriate. This 
guidance does not mean that FTA will dictate or even recommend what 
specific service or fare changes the agency should ultimately adopt. 
Pursuant to 49 U.S.C. Section 5334(11)(b)(1), FTA is prohibited from 
regulating operations and charges. The provisions in the final circular 
are included to ensure that recipients take proactive action to ensure 
that no person is excluded from participation in or denied the benefits 
of programs or activities on the grounds of race, color, and national 
origin (pursuant to 49 CFR Section 21.5(b)(7)) and to ensure that 
planning and programming activities that have the potential to have a 
disproportionately high and adverse effect on human health or the 
environment include explicit consideration of the effects on minority 
populations and low-income populations, (pursuant to DOT Order 5610.2 
Section 4b(1)).

Monitoring Requirements

    Chapter V, Section 2 of the proposed circular instructed recipients 
to monitor the level and quality of the transit service they provide to 
ensure that service is being provided on an equitable basis. This 
section also

[[Page 18745]]

recommended specific methodologies that recipients could use to monitor 
the level and quality of service.
    Comments: Two organizations commented on this provision. One 
commenter suggested that the circular require that agencies take 
corrective action if monitoring confirms disparities in the level and 
quality of transit service. A second commenter stated that the proposed 
methodology for analyzing results of customer surveys at Chapter V, 
Section 2c of the proposed circular is inconsistent with the quality of 
service methodology at Chapter V, Section 2b of the proposed circular, 
even though both methodologies seek to determine whether there are 
significant differences in the quality of service being provided to 
different demographic groups.
    FTA response: Chapter V, Section 5 of the final circular states 
that if recipient monitoring determines that prior decisions have 
resulted in disparate impacts, agencies shall take corrective action to 
remedy the disparities. The final circular eliminates the inconsistency 
between the recommended customer survey monitoring procedures in 
Chapter V, Section 1b and the customer surveying procedures in Chapter 
V, Section 5c.

Preparing and Submitting a Title VI Report

    Chapter V, Section 3 instructs recipients to which this chapter 
applies to prepare and submit a Title VI report that documents their 
compliance with the requirements of Chapter V as well as with the 
requirements for all recipients listed in Chapter IV.
    Comments: Two organizations commented on this provision. One 
commenter stated that the terms used to describe the list of items that 
should be submitted to FTA should reference the terms used earlier in 
the chapter. A second commenter said that FTA should set time frames 
for its review and approval of the Title VI submittals required in this 
section.
    FTA response: The final circular uses terms consistently throughout 
the document. The guidance on reporting does not include a set time 
frame for when FTA will approve or disapprove a submission; however, 
FTA's Office of Civil Rights strives to provide a prompt response to 
the se submittals. FTA is exploring the option of allowing grantees to 
submit their reports via FTA's Transportation Electronic Award 
Management System (TEAM-Web), which should expedite the submission and 
review of these reports.

Statewide Transportation Planning Activities

    Chapter VI, Section 1 of the proposed circular instructed State 
DOTs to have an analytic basis in place for certifying their compliance 
with Title VI.
    Comments: Three organizations commented on this provision. Two 
organizations suggested that, prior to certifying compliance with Title 
VI, State DOTs be required to develop and conduct specific statewide 
analytical processes to meet this requirement. One commenter stated 
that such disparity studies should include comparisons of investment 
and spending in different urban areas within the state. The commenter 
said that State DOTs need to undertake their own analytical process 
rather than compiling the analytical efforts conducted by the MPOs in 
the state. A second commenter stated that there is no requirement for 
corrective action should the analytical process disclose disparities.
    FTA response: The final circular offers guidance that State 
Departments of Transportation integrate, into statewide planning 
activities, considerations expressed in the DOT Order on Environmental 
Justice, by having an analytic basis in place for certifying compliance 
with Title VI. This analysis should evaluate the state's own planning 
activities and should not consist of a summary of the analysis 
conducted by MPOs. State DOTs can compare investments and spending in 
different urban areas within the state as part of their efforts to meet 
this requirement. If, after conducting a State Management Review, 
Compliance Review, or investigation in response to a discrimination 
complaint, FTA determines that a state has taken action that is 
inconsistent with the DOT Title VI regulations in the context of 
transportation planning, FTA will require the State DOT to take 
corrective action.

Program Administration

    Chapter VI, Section 2 of the proposed circular instructed State 
DOTs or other State administrating agencies to document that they pass 
through Federal funds to subrecipients without regard to race, color, 
and national origin.
    Comments: Two organizations commented on this provision. One 
commenter stated that FTA should ensure that this section is consistent 
with FTA's proposed guidance for public transit-human services 
coordination. A second commenter stated that the criteria that States 
may use to determine whether a subrecipient provides transit service to 
a predominantly minority and low-income population (included in Section 
2b) is inconsistent with the definitions section in Chapter II.
    FTA response: FTA has determined that the language in the final 
circular is consistent with the language in FTA's proposed circulars 
for the Job Access and Reverse Commute (JARC) program, the New Freedom 
program, and the Elderly Individuals and Individuals with Disabilities 
program. The terms used in this chapter are consistent with the 
definitions in Chapter II.

Metropolitan Transportation Planning Requirements

    Chapter VII of the proposed circular instructed MPOs to have an 
analytic basis in place for certifying their compliance with Title VI.
    Comments: One organization commented on this provision. The 
commenter stated that the proposed circular does not require MPOs take 
corrective action should their analytical process disclose disparities. 
The commenter also suggested that FTA acknowledge that not all MPOs are 
subrecipients of State DOTs and those that are not should not be 
required to report through the State DOT.
    FTA response: The proposed and the final circular both included 
language recommending that MPOs have an analytical process in place for 
addressing as well as identifying imbalances in transportation to 
different demographic groups if such imbalances are identified (see 
Circular 4702.1A, Chapter VII, Section 1c). The final circular also 
clarifies that those MPOs that receive funds directly from FTA should 
report to FTA (Circular 4702.1A, Chapter VII, Section 2).

Compliance Reviews

    Chapter VIII of the proposed circular described the review process 
that FTA will follow when determining a recipient's or subrecipient's 
compliance after the award of Federal financial assistance and what 
information and actions are expected from recipients and subrecipients 
that are subject to these reviews.
    Comments: Two organizations commented on provisions in this 
chapter. Both commenters stated that FTA should create an objective, 
non-exhaustive list of factors for determining which recipients will be 
selected for compliance reviews and that the compliance review 
procedures could be clarified by use of a flow chart or description of 
a sample review.
    FTA response: Chapter VIII, Section 2 of the final circular issues 
an objective

[[Page 18746]]

criteria for which recipients will be selected for a post-award 
compliance review. This chapter also includes a flow chart of the 
compliance review process.

Complaints

    Chapter IX of the proposed circular described how FTA will respond 
to complaints of discrimination under Title VI that are filed with FTA 
against a recipient or subrecipient of FTA funds.
    Comments: Four organizations commented on the provisions in this 
chapter. Two commenters asked for more information on when and in what 
format FTA will notify the public of its procedures for accepting and 
investigating Title VI complaints. Another commenter stated that FTA 
should require that recipients have free and fair access to complaints 
filed against them and that FTA have a standard to determine when a 
complaint is timely and that grant recipients have sufficient time to 
respond to the complaint. Another commenter stated that favorable 
reviews of recipients' Title VI programs should have some bearing in 
expediting FTA action on Title VI complaints.
    FTA response: FTA's Office of Civil Rights handles Title VI 
complaints pursuant to the regulations at 49 CFR Section 21.11 and 
using guidance contained in the ``Investigation Procedures Manual for 
the Investigation and Resolution of Complaints Alleging Violations of 
Title VI and Other Nondiscrimination Statutes.'' This manual was 
published by DOJ's Civil Rights Division and can be found at http://www.usdoj.gov/crt/cor/coord/invmanual.htm. In addition, DOT's Office of 
Civil Rights is developing an External Civil Rights Complaint 
Processing Manual that contains guidance modeled after the DOJ manual. 
Once this document is finalized FTA will investigate discrimination 
complaints based on the procedures contained therein. In general, and 
pursuant to the guidance in the DOJ manual, timely complaints are those 
filed within 180 days of the occurrence of the alleged discrimination. 
FTA strives to balance the need to promptly investigate and resolve 
discrimination complaints with the need to give recipients adequate 
time to respond to allegations of discrimination. In practice, FTA's 
Office of Civil Rights typically asks recipients to respond to a 
complaint within 30 to 60 days of the date of the request.
    In addition, the final circular has been modified to state that 
once the complainant agrees to release the complaint to the recipient 
or subrecipient, FTA will provide the agency with the complaint. If the 
complainant does not agree to release the complaint to the recipient or 
subrecipient, FTA may administratively close the complaint (see Chapter 
IX, Section 2).

Effecting Compliance

    Chapter X of the proposed circular outlined FTA's procedures for 
effecting compliance when it determines that a grantee is in 
noncompliance with Title VI.
    Comments: Two entities commented on the provisions in this chapter. 
The commenters stated that FTA should identify in this chapter or 
elsewhere its own commitment to Title VI and provide a benchmark for 
grantees and the public as to what they can expect regarding diligent 
enforcement. The commenters also stated that relevant parts of the 
Supreme Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001), 
be discussed in the circular. In this decision, the Supreme Court 
foreclosed a private right of action to enforce DOJ and DOT 
regulations. The commenters stated that, given the outcome of this 
decision, FTA should verify if there are limitations to the ``Judicial 
Review'' procedures discussed in Chapter X, Section 3.
    FTA response: Both the proposed circular and the final circular 
contain detailed guidelines as to when and under what circumstances FTA 
will initiate proceedings. The guidance in this Chapter is consistent 
with the requirement at 49 CFR Section 21.9(a) that the primary means 
of effecting compliance with Title VI is through voluntary compliance 
agreements with the recipients and that fund suspension or termination 
or referrals to DOJ are means of last resort. These guidelines should 
also allow FTA to balance its duty to permit informal resolution of 
findings of noncompliance against its duty to effectuate, without undue 
delay, the prohibition of continued assistance to programs or 
activities that discriminate.
    The final circular does not incorporate language from the Sandoval 
decision; however, FTA is aware that, pursuant to this decision, filing 
an administrative complaint with a recipient or with FTA is the only 
recourse for individuals alleging that a recipient has engaged in 
disparate impact discrimination in violation of the 49 CFR Section 
21.5(b)(2). FTA takes seriously its obligation to provide due process 
to parties involved in such complaints as well as its obligation to set 
clear expectations for recipients on how to avoid disparate impact 
discrimination.

Appendices

    The proposed circular included three checklists that listed the 
reporting requirements that should be prepared and submitted to FTA.
    Comments: Four entities commented on these appendices. Two 
commenters stated that the checklists were beneficial tools and that it 
would be helpful to add to the charts a column that referenced the 
specific sections of the regulations that the reporting requirements 
apply to. Another commenter stated that Appendix A should identify the 
FTA Office to which a recipient or subrecipient should submit the 
information and another commenter stated that it would be helpful to 
add an index.
    FTA response: The final circular includes appendices that have been 
modified consistent with these comments (see Circular 4702.1A, 
Appendices A, B, and C) and includes an index.

    Issued in Washington, DC, this 6th day of April 2007.
James S. Simpson,
Administrator.
[FR Doc. E7-7066 Filed 4-12-07; 8:45 am]
BILLING CODE 4910-57-P