U.S. Department Memorandum 

of Transportation 

Federal Highwa y 

Administration 

Subject: Legal Interpretation of Part 200 

Provisions 

From: Thomas 

HCC-1 

Chief Counsel 

Echikso~ ~ 

To: Nichole McWhorter 

Di vision Manager 

Adjudications and Investigations 

Office of Civil Rights 

BACKGROUND 

Date: November 9, 2015 

The Office of Civil Rights (HCR) requested a legal interpretation of specific provisions 

of 23 CFR Part 200 related to State Transportation Agency (ST A) responsibilities in the 

implementation of the Title VI program. First, HCR requested legal guidance on how to 

interpret the term "program area," as it appears in three separate provisions under 23 

CFR § 200.9: (1) subsection (a)(4), "[t]he State program area officials and Title VI 

Specialist shall conduct annual reviews of all pertinent program areas to determine the 

effectiveness of program area activities at all levels"; (2) subsection (b )(5), "[ d]evelop a 

program to conduct Title VI reviews of program areas"; and (3) subsection (b)(6), 

"[ c ]onduct annual reviews of special emphasis program areas to determine the 

effectiveness or [sic] program area activities at all levels." HCR seeks specific guidance 

regarding what program areas an STA should cover in the annual reports required under 

subsections (a)(4) and (b)(6). 

Second, HCR requested a legal opinion on STA responsibilities under 23 CFR 

§§ 200.9(b)(10) and (b)(l 1). 1 Specifically, HCR requested legal guidance on when 

ST As must submit the annually required Title VI implementation plan, and whether that 

implementation plan must include the annually required Title VI accomplishment and 

goal report. 

The analysis below addresses both of these issues. 

L 23 CFR § 200.9(b) "(10) Prepare a yearly report of Title VI accomplishments for the past year and goals for the 

next year. ( I I) Beginning October I, 1976, each State highway agency shall annually submit an updated Title VI 

implementing plan to the Regional Federal Highway Administrator for approval or disapproval." 

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ANALYSIS 

1. How should the term "program area(s)" be interpreted under 23 CFR § 200.9? 

Section 200. 9 of 23 CFR sets forth "State highway agency responsibilities." Section 

200.9(a) pertains to "State assurances in accordance with Title VI of the Civil Rights 

Act of 1964," while Section 200.9(b) sets forth required "State actions." Under Section 

200.9(a)(4), "[t]he State program area officials and Title VI Specialist shall conduct 

annual reviews of all pertinent program areas to determine the effectiveness of program 

area activities at all levels" ( emphasis added). Section 200. 9(b )(5) requires ST As to 

"[d]evelop a program to conduct Title VI reviews of program areas." Last, Section 

200.9(b)(6) requires STAs to "[c]onduct annual reviews of special emphasis program 

areas to determine the effectiveness or [sic] program area activities at all levels" 

( emphasis added). 

As a starting point, it is clear that when the provisions in Sections 200.9(a)(4) and 

200.9(b)(6) direct STAs to "conduct annual reviews" the intention is for STAs to review 

how well their programs are performing with respect to the requirements of Title VI. 

That is, how well is the STA performing to ensure that that "no person in the United 

States shall, on the grounds of race, color, or national origin, be excluded from 

participation in, be denied the benefits of, or be otherwise subjected to discrimination 

under any program or activity for which the [STA] receives Federal financial 

assistance?" 42 USC 2000d.2 Indeed, the purpose of FHWA's Title VI regulations at 

23 CFR Part 200 is to provide guidelines on "[ c ]onducting Title VI program compliance 

reviews relative to the Federal-aid highway program," and Section 200.9(b)(5) directs 

ST As to"[ d]evelop a program to conduct Title VI reviews of program areas." 

The regulation, however, does not make clear what is meant by a Title VI review of 

"pertinent" program areas versus "special emphasis" program areas. Since different 

descriptors are used in each provision ("pertinent" versus "special emphasis"), we must 

presume that different meanings are intended. Unfortunately, 23 CFR Part 200 provides 

no definition of either "pertinent program areas" or "special emphasis program areas." 

There also is no discussion of these terms in the preamble to the final rule FHW A issued 

when it promulgated this regulation in 1976. See 41 Fed. Reg. 53982 (Dec. 10, 1976). 

As a result, we must look for guidance from the Title VI statutory language itself and the 

context of the rule as a whole. 

First, the Title VI statute provides: 

No person in the United States shall, on the ground of race, color, or 

national origin, be excluded from participation in, be denied the benefits 

of, or be subjected to discrimination under any program or activity 

receiving Federal financial assistance. 

42 USC § 2000d. Over time, questions arose over how to interpret the meaning of '·any 

2 FHWA's Title Vl regulation expands its coverage to include discrimination on the basis of sex, as required under 

Section 162a of the Federal-aid Highway Act of 1973 (codified at 23 USC§ 324). See 23 CFR 200.5(p)(4). 

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program or activity receiving Federal financial assistance." Congress clarified its 

intention that the term "program or activity" should be interpreted broadly through the 

Civil Rights Restoration Act of 1987. In particular, Congress provided: 

For the purposes of this title, the term 'program or activity' and the term 

'program' mean all of the operations of -

( 1 )( A) a department, agency, special purpose district, or other 

instrumentality of a State or of a local government; or 

(B) the entity of such State or local government that distributes 

such assistance and each such department or agency (and each 

other State or local government entity) to which the assistance is 

extended, in the case of assistance to a State or local government. 

Civil Rights Restoration Act of 1987, 100 Pub. L. 259, Section 6, 102 Stat. 28 (Mar. 22, 

1988) (codified at 42 U.S.C. § 2000d-4a). Significantly, this statute clarified that Title 

VI applies to a recipient's activities regardless of whether the specific activity is funded 

by federal dollars. If a recipient department receives any federal financial assistance, 

Title VI applies to "all of the operations" of that department. 

This broad interpretation of the term "program" informs how the regulation should be 

interpreted. For instance, the regulation itself defines "program" broadly: 

Includes any highway, project, or activity for the provision of services, financial 

aid, or other benefits to individuals. This includes education or training, work 

opportunities, health, welfare, rehabilitation, housing, or other services, whether 

provided directly by the recipient of Federal financial assistance or provided by 

others through contracts or other arrangements. 

23 CFR § 200.S(k). The regulatory definition of "program" was issued in 1976, when 

the final rule was promulgated, but can be viewed as applying broadly to an STA's 

activities. The clarification Congress provided in the Civil Rights Restoration Act of 

1987 confirms, more directly and succinctly, that "program" means "all of the 

operations" of a recipient. 

What remains is how to distinguish between "pertinent" program areas and "special 

emphasis" program areas. Since the regulation does not define either term, and there is 

no discussion of these terms in the preamble to the final rule, we look to the natural 

meaning of the modifying words. 

The dictionary definition of the term "pertinent" is: "relating to the subject that is being 

thought about or discussed: relevant." See www.meniam-,vebster.com (definition of 

"pertinent"). In the context of FHW A's Title VI regulations, the "pertinent" or 

"relevant" program areas means those program areas for which Title VI compliance is 

required. As established above, Title VI applies to "all of the operations" of a recipient 

of Federal financial assistance, so an STA, as a recipient of financial assistance from 

FHW A, has an obligation under the regulation to assess Title VI compliance throughout 

its operations. In other words, an STA's annual Title VI review of"pertinent" programs 

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should look at not just its Title VI performance on projects funded with FHW A dollars, 

but all aspects of the ST As operations, whether specifically supported by FHW A dollars 

or not. 

Given the breadth of coverage in the requirement to conduct an annual review of all 

"pertinent" program areas, it is less clear what the regulation intends in requiring annual 

Title VI reviews of "special emphasis" program areas under 23 CFR Section 

200.9(b)(6). As discussed above, the term "special emphasis" is not defined in the 

regulation, nor is there any guidance on the meaning of this phrase in the preamble to 

the final rule. The term "special emphasis programs" is used in the context of Federal 

government employment and efforts to increase workforce diversity under regulations 

issued by the Office of Personnel Management, but that meaning plainly does not apply 

to the use of the term in Section 200.9(b)(6). 

Instead, the best approach is to adopt a natural reading of "special emphasis" program 

areas, which would refer to those areas that receive or should receive "special 

consideration" or areas which an STA should "stress" or on which it should especially 

focus. See w,vw.merriam-webster.com (definition of "emphasis"). Since the regulation 

does not identify specific "special emphasis" program areas, the determination of what 

areas should receive special attention in an ST A's annual report should be determined as 

a matter of policy by the relevant FHW A program office, which in this case is FHW A's 

Office of Civil Rights. 

2. When must STAs submit the annually required Title VI implementation plan, and 

must the implementation plan include the annually required Title VI accomplishment 

and goal report? 

In regard to the date that the STA's annual Title VI implementation plan is due, 23 CFR 

§ 200.9(b)(l 1) states that "[b]eginning October 1, 1976, each State highway agency 

shall annually submit an updated Title VI implementing plan" for approval or 

disapproval. October 1 of each year represents the beginning of the fiscal year. The 

most natural reading of this provision is that each STA should continue submitting its 

annual Title VI implementation to FHW A by October 1 of each year. An 

implementation plan outlines an STA's methods for administering its Title VI program 

for the upcoming year, so it is reasonable that such a document should be submitted to 

FHW A by the beginning of each fiscal year. 

Although Part 200 provides a clear date by which an STA must submit its 

implementation plan, it does not provide a date for an ST A's submission of its Title VI 

accomplishment report and goals for the upcoming year, nor does the regulation state 

that an STA must submit its goals and/or accomplishment reports with the Title VI 

implementation plan. Because the regulation requires annual submission of an 

accomplishment report and goals, but does not prescribe a specific date, it is appropriate 

for HCR to develop and implement a policy that ensures the annual submission of the 

required information. Although the regulation does not plainly require that an STA 

submit the accomplishment report and goals at the same time as the implementation 

report, HCR could establish that policy if it chooses. As long as an STA submits the 

required information on an annual basis, the terms of the regulation would be met. 

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