Title VI; Final Circular |
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Peter Rogoff
Federal Transit Administration
August 28, 2012
[Federal Register Volume 77, Number 167 (Tuesday, August 28, 2012)]
[Notices]
[Pages 52116-52128]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21167]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2011-0054]
Title VI; Final Circular
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of availability of final Circular.
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SUMMARY: The Federal Transit Administration (FTA) has placed in the
docket and on its Web site, guidance in the form of a Circular to
assist grantees in complying with Title VI of the Civil Rights Act of
1964. The purpose of this Circular is to provide recipients of FTA
financial assistance with instructions and guidance necessary to carry
out the U.S. Department of Transportation's Title VI regulations (49
CFR part 21).
DATES: Effective Date: The effective date of the Circular is October 1,
2012.
FOR FURTHER INFORMATION CONTACT: For program questions, Amber
Ontiveros, Office of Civil Rights, Federal Transit Administration, 1200
New Jersey Ave. SE., Room E54-422, Washington, DC 20590, phone: (202)
366-4018, fax: (202) 366-3809, or email, Amber.Ontiveros@dot.gov. For
legal questions, Bonnie Graves, Office of Chief Counsel, same address,
room E56-306, phone: (202) 366-4011, or email, Bonnie.Graves@dot.gov.
SUPPLEMENTARY INFORMATION:
Availability of Final Circular
This notice provides a summary of the final changes to the Title VI
Circular and responses to comments. The final Circular itself is not
included in this notice; instead, an electronic version may be found on
FTA's Web site, at www.fta.dot.gov, and in the docket, at
www.regulations.gov. Paper copies of the final Circular may be obtained
by contacting FTA's Administrative Services Help Desk, at (202) 366-
4865.
Table of Contents
I. Overview
II. Implementation
III. Chapter-by-Chapter Analysis
A. General Comments
B. Chapter I--Introduction and Background
C. Chapter II--Program Overview
D. Chapter III--General Requirements and Guidelines
E. Chapter IV--Requirements and Guidelines for Fixed Route
Transit Providers
F. Chapter V--Requirements for States
G. Chapter VI--Requirements for Metropolitan Planning
Organizations
H. Chapter VII--Effectuating Compliance With DOT Title VI
Regulations
I. Chapter VIII--Compliance Reviews
J. Chapter IX--Complaints
K. Appendices
I. Overview
FTA is updating its Title VI Circular, last revised in 2007, to
clarify what recipients must do to comply with the U.S. Department of
Transportation (DOT) Title VI regulations. This notice provides a
summary of changes to FTA Circular 4702.1A, ``Title VI and Title VI--
Dependent Guidelines for FTA Recipients,'' addresses comments received
in response to the September 29, 2011, Federal Register notice (76 FR
60593), and provides information regarding implementation of the final
Circular. The final Circular, 4702.1B, ``Title VI Requirements and
Guidelines for Federal Transit Administration Recipients'' becomes
effective on October 1, 2012, and supersedes FTA Circular 4702.1A.
FTA conducted extensive outreach related to the proposed circular.
FTA sponsored Information Sessions in five cities around the country
regarding the proposed revisions to the Title VI Circular and proposed
a new Environmental Justice Circular (see docket FTA-2011-0055 for more
information on the proposed and final Environmental Justice Circular).
The meetings provided a forum for FTA staff to make presentations about
the two proposed circulars and allowed attendees an opportunity to ask
clarifying questions. In addition, FTA participated in various
conferences occurring in October and November 2011, and hosted several
webinars. FTA received approximately 117 written comments to the docket
related to the proposed Title VI Circular from providers of public
transportation, State Departments of Transportation, advocacy groups,
individuals, metropolitan planning organizations, and transit industry
groups. Some comments were submitted on behalf of multiple entities.
[[Page 52117]]
One important change to the revised Circular involves removal of
several references to environmental justice (EJ) contained in FTA Title
VI Circular 4702.1A. Executive Order 12898, ``Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations,'' was signed by President Clinton on February 11, 1994.
Subsequent to issuance of the Executive Order, DOT issued an internal
Order for implementing the Executive Order, which DOT recently updated.
The DOT Order (Order 5610.2(a), ``Department of Transportation Actions
to Address Environmental Justice in Minority Populations and Low-Income
Populations,'' 77 FR 27534, May 10, 2012) describes the process the
Department and its modal administrations (including FTA) will use to
incorporate EJ principles into programs, policies and activities. The
DOT Order does not provide guidance to FTA grantees on what is expected
regarding integrating EJ principles into the public transportation
decision-making process. FTA had not previously published separate and
distinct EJ guidance for its grantees, but instead included EJ concepts
in Title VI Circular 4702.1A.
Several instances of Title VI and EJ issues raised by FTA grantees
led FTA to initiate a comprehensive management review of the agency's
core guidance to grantees in these and other areas of civil rights
responsibilities for public transportation. Based on that review, FTA
determined a need to clarify and distinguish what grantees should do to
comply with Title VI regulations; and, separately, what grantees should
do to facilitate FTA's implementation of Executive Order 12898.
Given the above, FTA removed most references to environmental
justice from the final Title VI Circular 4702.1B in order to clarify
the statutory and regulatory requirements for compliance with Title VI.
In addition to the revised Title VI Circular, FTA has also published,
in the July 17, 2012, Federal Register, a notice of availability for a
new final EJ Circular 4703.1, ``Environmental Justice Policy Guidance
for Federal Transit Administration Recipients'' (Docket number FTA-
2011-0055) (77 FR 42077, July 17, 2012). The EJ Circular is available
on FTA's Web site here: http://www.fta.dot.gov/legislation_law/12349_14740.html. The EJ Circular is designed to provide grantees with a
distinct framework to assist them as they integrate principles of
environmental justice into their public transportation decision-making
processes, from planning through project development, operation and
maintenance. FTA expects the additional clarification provided by both
Circulars will provide grantees the guidance and direction they need to
properly incorporate both Title VI and environmental justice into their
public transportation decision-making. FTA encourages interested
parties to review both Federal Register notices and both circulars.
II. Implementation
A number of commenters had questions about the timing of
implementing the new circular, including which circular they should use
if their Title VI Program is due within a short time of the effective
date of the new circular, and whether Title VI Programs would have to
be updated to comply with new requirements.
A. Expiration Dates
Recipients with Title VI Programs due to expire prior to October 1,
2012 must submit their Programs to FTA prior to October 1, 2012, and
the Programs shall be compliant with Circular 4702.1A. Recipients with
Title VI Program expiration dates between October 1, 2012 and March 31,
2013 must submit a Title VI Program that is compliant with Circular
4702.1B by April 1, 2013. This grace period will allow recipients to
update their system-wide standards and policies, as well as their major
service change and disparate impact policies, as applicable, and have
their board of directors or appropriate entity or official(s)
responsible for policy decisions approve the Title VI Program prior to
submission. On or about October 1, 2012, FTA will post information on
our Title VI web page regarding which recipients are in this group, and
we will also reach out to each recipient to ensure awareness of the
requirement. In addition, FTA will adjust the expiration dates of all
Title VI Programs in order to provide for an orderly, staggered
submission of Title VI Programs. On or about October 1, 2012, FTA will
publish information on our Web page related to future due dates and
expiration dates of Title VI Programs.
B. System-Wide Standards and Policies
The final Circular requires all fixed route transit providers to
set system-wide standards and policies, and requires all transit
providers that operate 50 or more fixed route vehicles in peak service
and are located in an urbanized area of 200,000 or more in population
to establish major service change and disparate impact policies. These
standards and policies must be approved by the board of directors or
appropriate governing entity or official(s) responsible for policy
decisions. As stated above, fixed route transit providers with Title VI
Programs expiring between October 1, 2012, and March 31, 2013, will be
provided a grace period in which to submit Title VI Programs that
comply with the new Circular 4702.1B, and this will include updating or
establishing these standards and policies. All other fixed route
transit providers will be required to establish or update their
standards and policies and submit them into TEAM by March 31, 2013. In
addition, Title VI Programs due to expire on or after April 1, 2013
must comply with the reporting requirements of Circular 4702.1B and
therefore will need to include their new or updated system-wide
standards and policies in their next Title VI Program submission.
C. Service Equity Analyses
Providers of public transportation that operate 50 or more fixed
route vehicles in peak service and are located in an urbanized area of
200,000 or more in population are required to conduct service equity
analyses for major service changes. Transit providers with major
service changes scheduled between October 1, 2012 and March 31, 2013
may follow the service equity analysis guidance provided in FTA
Circular 4702.1A. FTA acknowledges that major service changes are often
planned many months in advance, and transit providers may have already
begun to conduct equity analyses for upcoming changes. In addition, the
new circular requires a public participation process and board of
directors approval for defining major service changes and adopting a
disparate impact policy, as well as board approval of the analysis;
these processes will take time. A transit provider may conduct a
service equity analysis consistent with the new Circular for major
service changes occurring prior to April 1, 2013, but is not required
to do so. All major service changes occurring on or after April 1, 2013
must be analyzed with the framework outlined in the new Circular,
4702.1B.
D. Conducting Surveys
Providers of public transportation that operate 50 or more fixed
route vehicles in peak service and are located in an urbanized area of
200,000 or more in population are required to collect and report
demographic data through customer surveys at least once every five
years (see chapter IV, section 5b). Transit providers that have not
conducted passenger surveys in the last
[[Page 52118]]
five years will have until December 31, 2013, to conduct these surveys.
E. Training
FTA will conduct ongoing training through webinars and in-person
presentations in order to ensure recipients and subrecipients
understand the requirements of the new circular.
Chapter-by-Chapter Analysis
A. General Comments
This section addresses comments that were not directed at specific
chapters, but to the Circular as a whole.
A number of commenters made suggestions or recommendations that
were outside the scope of the circular, for example, suggestions
related to meeting obligations to affirmatively further fair housing,
questions related to specific situations, and others. Some commenters
asked about other protected classes, specifically the prohibition of
discrimination on the basis of age, sex and disability. There are
nondiscrimination statutes for all of those areas, but they are not
part of Title VI. Title VI prohibits discrimination on the basis of
race, color, and national origin only. All comments such as these are
beyond the scope of this Circular and are not addressed here.
Commenters were generally supportive of FTA's proposal to develop
separate Circulars for Title VI and environmental justice, and also
supportive of the changes FTA proposed to FTA Title VI Circular
4702.1A. Some commenters were concerned about the volume of new
material, with the addition of appendices to Title VI Circular 4702.1B,
while others expressed concern about the costs of implementation. The
appendices, while voluminous, are designed to make it easier for
recipients to comply with Title VI requirements, as they demonstrate
acceptable analyses and provide examples of what FTA expects. As noted
in Chapter IV of the chapter-by-chapter analysis, we have addressed the
cost concerns by amending the proposed threshold for the more
comprehensive Title VI reporting requirements for transit providers,
amending the survey requirement, and amending the number of transit
amenities that must be monitored.
One important change made throughout the final Circular is that we
have, where applicable, included the text of the DOT Title VI
regulation that applies to the requirement. FTA Title VI Circular
4702.1A often cites the regulation, but does not quote or summarize the
text. Commenters agreed it is an enhancement to include the text or a
summary of the regulation so they understand the nexus between the
regulation and the requirements in the Circular.
Some commenters made suggestions about language choice, such as
being careful about the usage of ``should'' and ``shall'' in order to
distinguish between recommended and required actions. FTA has reviewed
the final Circular and made revisions as appropriate. Some commenters
suggested that FTA use the phrase ``in a non-discriminatory manner''
instead of the phrase ``without regard to race, color, or national
origin,'' as the second phrase, while consistent with the regulation,
implies that if a recipient makes decisions without regard to race,
color, or national origin, there may be a discriminatory effect. FTA
has carefully reviewed the final Circular and determined that the use
of these phrases depends on the context. We have made revisions where
appropriate.
Several commenters stated that FTA should coordinate or collaborate
with the Federal Highway Administration (FHWA) to ensure one set of
requirements, especially for metropolitan planning organizations (MPOs)
and State Departments of Transportation that receive funds from both
agencies. FTA and FHWA are working to identify common reporting
requirements so that States and MPOs need only submit information once
that will satisfy FTA and FHWA requirements.
One commenter asserted that Federal agencies lack the authority to
implement regulations prohibiting disparate impact, and that FTA should
be reassessing the implementation of DOT's Title VI regulation.
Specifically, the commenter pointed out that the U.S. Supreme Court in
Alexander v. Sandoval, 532 U.S. 275 (2001), found no private right of
action to allow private lawsuits based on evidence of disparate impact.
However, as the U.S. Department of Justice advised Federal agencies in
late 2001, ``although Sandoval foreclosed private judicial enforcement
of Title VI disparate impact regulations, it did not undermine the
validity of those regulations or otherwise limit the authority and
responsibility of Federal grant agencies to enforce their own
implementing regulations.'' (See, http://www.justice.gov/crt/about/cor/coord/vimanual.php). Therefore, the U.S. DOT's disparate impact
regulations continue to be a vital administrative enforcement
mechanism.
B. Chapter I--Introduction and Background
Chapter I of Circular 4702.1A is entitled, ``How to Use This
Circular.'' The content of this chapter has been eliminated or moved to
other chapters as appropriate. Some commenters expressed a preference
for keeping the reference chart found in Chapter 1 of Circular 4702.1A;
FTA has determined that the Table of Contents is sufficient for
directing readers to the information applicable to their entity (i.e.,
transit provider, State, or MPO). Chapter I of the final Circular
4702.1B is an introductory chapter covering general information about
FTA, how to contact us, the authorizing legislation for FTA programs
generally, information about FTA's posting of grant opportunities on
Grants.gov, definitions applicable to the Title VI Circular, and a
brief history of environmental justice and Title VI. We have moved the
table describing similarities and differences between Title VI and
environmental justice, found in Appendix M of the proposed circular, to
this chapter. Where applicable, we have used the same definitions found
in rulemakings, other Circulars, and DOT Orders to ensure consistency.
Some commenters noted that low-income populations are not a
protected class and thus references to low-income should be removed
from the Title VI Circular. FTA has retained the references to low-
income populations only in the service and fare equity analysis section
in Chapter IV. Addressing low-income populations in these analyses
assists FTA in meeting its obligation to identify and address
environmental justice concerns. Further, FTA received many comments to
the proposed EJ Circular regarding whether the EJ Circular required a
separate analysis on service and fare equity from that required under
Title VI. FTA considered these comments and decided that issues related
to service and fare equity analyses should be consolidated in a single
location in the final Title VI Circular. Consolidating FTA's guidance
on service and fare equity analyses in the Title VI Circular will
provide clarity to recipients and prevent duplication of efforts.
In the final circular, in response to commenters as well as
experiences over the past year, FTA has removed from the Circular the
definitions of adverse effect and disproportionate high and adverse
effect, which are environmental justice terms. Instead, we have
included a definition of ``disproportionate burden,'' and applied this
term to service and fare equity analyses for low-
[[Page 52119]]
income populations. As discussed further in Chapter IV, FTA will
require recipients to perform separate equity analyses for minority and
low-income populations for service and fare changes, but we have
clarified and streamlined this process.
We have modified the definition of ``disparate impact'' for
clarity. We decline to add a definition for ``equity'' or ``service''
in the definitions section, but we have added significant text in
Chapter IV (as discussed below) to more clearly describe the steps in a
service equity analysis. Some commenters indicated that FTA's
definition of ``Limited-English Proficient,'' (LEP) which includes
individuals who speak English less than very well, not well, or not at
all, was not consistent with the U.S. Census data. The Census Bureau
explained to State and local governments in 2009 that LEP includes the
``less than very well'' category. See U.S. Census Bureau American
Community Survey, What State and Local Governments Need to Know, at 12,
n. 8, (Feb. 2009), http://www.census.gov/acs/www/Downloads/handbooks/ACSstateLocal.pdf. Individuals who speak English ``well'' (or ``less
than very well'') are considered to have limited-English proficiency.
Therefore, FTA's proposed language is correct and we have not changed
it.
Several commenters noted possible inconsistencies with the
definitions of ``minority'' and ``minority populations,'' which FTA did
not propose changing. FTA has confirmed that the definition of
``minority'' included in the final Circular is the same definition used
by the Office of Management and Budget (OMB), which provides that these
categories are the minimum set for data on race for Federal civil
rights compliance reporting. See OMB's Provisional Guidance on the
Implementation of the 1997 Standards for Federal Data on Race and
Ethnicity.
Several commenters noted the definition for ``low-income,'' which
FTA did not propose changing, was not consistent with other Federal
agencies' definitions. The definition is the same definition DOT uses
for purposes of addressing environmental justice concerns, so we have
retained the existing definition in order to maintain consistency
within the Department. However, recipients may use a more inclusive
definition of low-income, e.g., 150% of poverty level, or incomes at a
certain percentage of median household income, etc., if they choose,
provided the threshold is at least as inclusive as the U.S. Department
of Health and Human Services (HHS) poverty guidelines. A few commenters
requested that FTA define the term ``low-income transit route;'' we
have limited the application of ``minority transit route'' to service
monitoring and are not using the definition for service equity
analyses, so decline to provide a definition of low-income transit
route. FTA has ensured that the definitions for ``low-income,''
``minority,'' ``low-income populations'' and ``minority populations''
are the same in both the environmental justice and Title VI Circulars.
Some commenters expressed a preference for identifying minority
populations based on shared travel patterns rather than by living in
geographic proximity. The definition of ``minority populations'' is a
definition used in other DOT documents, notably the DOT Order on
Environmental Justice, and we are retaining the definition for
Departmental consistency. However, as explained in the service equity
section, where recipients have ridership data, it may be more
appropriate to conduct analyses on the basis of that data instead of
residential Census data.
FTA received several comments on its proposal to reinstate the
definition of ``minority transit route,'' a term removed during the
2007 Circular revision. We proposed some added flexibility to the
definition, allowing recipients to base the determination on route
mileage, demographics, or ridership. In response to comments, we have
made clarifying changes to this definition. A ``minority transit
route'' is one in which at least one-third of the revenue miles are
located in a Census block or block group, or traffic analysis zone
where the percentage minority population is greater than the percentage
minority population in the service area. Recipients may supplement that
data if they have ridership data and adjust route designations
accordingly. For example, a commuter bus that picks up passengers in
generally non-minority areas and then travels through predominantly
minority neighborhoods but does not pick up passengers who live closer
to downtown might be more appropriately classified as a non-minority
route, even if one-third of the route mileage is located in
predominantly minority Census tracts or block groups. On the other
hand, a light rail line may carry predominantly minority passengers to
an area where employment centers and other activities are located, but
the minority population in the surrounding Census tracts or block
groups does not exceed the area average. This route may be more
appropriately classified as a minority transit route. Chapter IV of the
Circular, as well as the appendices, includes information regarding the
practical application of minority transit routes in service monitoring.
Some commenters had suggestions related to the definition of
``predominantly minority area,'' which FTA did not propose changing.
The definition provides that a predominantly minority area is a
geographic area, such as a neighborhood, Census tract, or traffic
analysis zone, where the proportion of minority persons residing in
that area exceeds the average proportion of minority persons in the
recipient's service area. In response to comments, we have added the
term Census block groups to the list of geographic areas, but note the
definition uses the phrase ``such as,'' so the list is not exhaustive.
Commenters asked that FTA allow recipients to define a predominantly
minority area; the definition in the circular is consistent with the
definition of minority transit route, and we prefer to maintain that
consistency. Commenters suggested that the definition include
neighboring geographic areas, but neighboring geographic areas would be
independently evaluated against the minority population in the service
area.
Several commenters asked whether section 5310 non-profit
subrecipients are transit providers. For purposes of this circular, FTA
considers section 5310 subrecipients to be transit providers. However,
when a non-profit section 5310 subrecipient provides closed-door
service to its own clients, FTA considers these operators to be demand-
responsive providers and not subject to the requirements of Chapter IV.
As subrecipients, these providers may adopt the Title VI Program of the
primary recipient that passes funds through to them, or they may
develop their own Title VI Program that is compliant with Chapter III.
Note that some section 5310 subrecipients are public entities that
provide fixed route service, and in that case, the provider will have
to comply with Chapter IV.
As a result of a number of comments to the docket related to
service standards and reporting thresholds, FTA is adding definitions
for ``demand response,'' ``fixed route,'' and ``non-profit.''
Discussion of how these terms relate to service standards and reporting
thresholds are included in the section describing the revisions to
Chapter IV.
We proposed using the term ``recipient'' to mean any recipient,
whether a direct recipient, a designated recipient, a primary
recipient, or a subrecipient. Some commenters
[[Page 52120]]
objected to this practice, stating it is confusing, while other
commenters asked that FTA consolidate or simplify the various types of
recipients. In the circular we have only used the term ``recipient''
when we mean all recipients--when we are specifically addressing the
requirements for a specific type of recipient, we use that term. When
addressing requirements for all recipients, including subrecipients (as
in Chapter III), it is simpler to use one term.
A number of commenters stated that the definition of ``service
area,'' which refers to the geographic area in which a transit agency
is authorized to operate by ``local laws'' should instead refer to
``its charter.'' We have made this change. One commenter indicated that
the definition seemed to exclude regional service areas that cross
state lines; however, the definition covers several different scenarios
and we believe this one is covered.
Finally, this chapter includes a section describing environmental
justice that references the EJ Circular that FTA published in July,
2012. This section provides a permanent cross-reference to that
guidance. Commenters were supportive of this section and stated the
discussion was helpful. In addition, we have moved the chart that was
in Appendix M of the proposed Circular to this chapter, in order to
have all the environmental justice information in one place.
C. Chapter II--Program Overview
We proposed amending some of the content of this chapter. As
previously stated, we moved the definitions to Chapter I. Chapter II
starts with the Title VI program objectives found in Circular 4702.1A
and is followed by statutory and regulatory authority, as well as
additional authority for the policies, requirements and recommendations
stated in the Circular. In response to comments, we have added language
to section 2 following the discussion of the Civil Rights Restoration
Act of 1987, stating that compliance with the Circular does not relieve
the recipient from the requirements and responsibilities of DOT's Title
VI regulation. In other words, the recipient may engage in activities
not described in the Circular, such as regional information systems,
one-call centers, ridesharing programs, or roadway incident response
programs. FTA notes that the Civil Rights Restoration Act of 1987
clarified that Title VI includes all programs and activities of Federal
aid recipients. The Circular only provides guidance on the transit-
related aspects of an entity's activities. Recipients are responsible
for ensuring that all of their activities are in compliance with the
DOT Title VI regulation. Consistent with FTA's goal of separating Title
VI and EJ and developing the EJ Circular, we removed references to
environmental justice. We proposed moving the ``determination of
deficiencies'' subsection in the Reporting Requirements section and the
Determinations section to Chapter VIII, Compliance Reviews. FTA has
adopted these changes in the final circular.
In the existing Reporting Requirements section, as well as in other
places throughout Circular 4702.1A, there is a statement that
recipients are required to submit Title VI Programs every three years,
or every four years in the case of metropolitan planning organizations
(MPOs) that are direct recipients of FTA funds. We proposed amending
the reporting requirement so that all recipients are required to submit
a Title VI Program every three years. Some MPOs objected to this
proposal, stating their planning cycles are four-year cycles; however,
FTA believes all recipients should report on the same three-year
schedule for purposes of consistency. We proposed amending the
Reporting Requirements section further by including a requirement that
a recipient's board of directors or appropriate governing entity
approve the Title VI Program before the recipient submits it to FTA.
Most commenters agreed that this requirement would provide more
accountability and awareness of Title VI requirements and compliance,
while some stated this requirement would be time-consuming, onerous,
and could over-politicize the Title VI Program, and requested
alternatives, such as sign-off by a CEO or other official. FTA expects
the requirement for board of directors or appropriate governing entity
approval will add clarity and transparency to implementation of the
Title VI Program at the local level, and we have adopted this proposal.
We have clarified that the official(s) approving the Title VI Program
should be the official(s) responsible for making policy decisions for
the agency. We would note that a board of directors meeting is a public
meeting, and approval of the Title VI Program in a public manner
ensures the Title VI Program is a public document. Thus, having the
Board chair and general manager jointly sign off on a Title VI Program,
or delegating approval to an advisory committee, as suggested by some
commenters, would not meet the transparency objective FTA is seeking.
Recipients will be required to submit, with the Title VI Program, a
copy of the Board resolution, meeting minutes, or similar documentation
as evidence that the board of directors or appropriate governing entity
has approved the program.
Several commenters stated there should be a public participation
requirement in the development of the Title VI Program. FTA declines to
make this a requirement; some elements of the Title VI Program, such as
those related to service and fare equity analysis, require varying
levels of public participation. In addition, as stated above, the new
requirement that a Title VI Program be approved by officials
responsible for policy decisions, such as a board of directors or
equivalent entity, necessarily requires a public notification process,
which FTA believes is sufficient.
Finally, in response to numerous questions and comments about
contractors, we have added a section to this chapter regarding the
applicability of the Circular to contractors. There were several
questions about the difference between subrecipients and contractors,
and the reporting responsibilities of each, and one request to provide
a definition of contractor in the Circular. While both subrecipients
and contractors ``stand in the shoes'' of the recipient, the reporting
requirements are different. When a primary recipient passes funds
through to a subrecipient, the subrecipient is responsible for
developing its own Title VI Program, although it may adopt all or
certain elements of the primary recipient's Title VI Program. In
accordance with the DOT Title VI regulation, the subrecipient is also
responsible for reporting its Title VI compliance to the entity from
which it receives funds, and that entity must monitor the compliance of
the subrecipient. A contractor, on the other hand, such as an entity
that contracts with a city to provide transit service, does not develop
its own Title VI Program; it complies with the recipient's Title VI
Program, and the recipient ensures the contractor's compliance. This
same principle applies to subcontractors--subcontractors must comply
with the recipient's Title VI Program, they do not develop their own
Title VI Programs. Because the term ``contractor'' has a generally
accepted meaning, we decline to add a definition in the Circular.
D. Chapter III--General Requirements and Guidelines
Chapter III in Circular 4702.1A is ``Requirements for Applicants.''
We proposed eliminating the one-page chapter dedicated to applicants,
and
[[Page 52121]]
consolidating this information into what is included in Chapter IV of
Circular 4702.1A. Thus, Chapter III in Circular 4702.1B has the same
name as Chapter IV in Circular 4702.1A: ``General Requirements and
Guidelines'' and includes content from Chapters III and IV of Circular
4702.1A. Commenters suggested amending the requirements for first-time
applicants, but these requirements are consistent with U.S. Department
of Justice regulations at 28 CFR Section 50.3, so we decline to make
further changes to this section.
We proposed keeping much of the content of Chapter IV of Circular
4702.1A in this chapter, but we reformatted the chapter to provide more
clarity. Chapters III, IV, V and VI, which describe the specific
requirements for different types of recipients' Title VI Programs,
follow the same format. Each of these chapters starts with an
introduction and some general information. Following that is the
requirement to prepare and submit a Title VI Program. The section
describing the Title VI Program, in each chapter, cites the regulation
and includes the regulatory text or a summary of the regulatory text.
It provides information on Board or other policy-making governing
entity approval of the Title VI Program. It then lists the elements
required in the Title VI Program for that type of recipient. The
sections following the Title VI Program submission requirements
describe in more detail what FTA expects, and provide direction to
assist recipients with compliance. Commenters expressed support for the
changes FTA made to the format of the Circular.
Section (4) of Chapter III outlines the basic requirements for
submitting a Title VI Program, and provides the list of elements that
must be in every recipient's (and subrecipient's) Title VI Program.
Since Chapter III applies to all recipients, we include in this chapter
information on how to upload a Title VI Program into FTA's
Transportation Electronic Award Management (TEAM) system. The Title VI
Program must be uploaded to TEAM no fewer than sixty calendar days
prior to the date of expiration of the previously approved Title VI
Program. This is a new requirement, but FTA has previously asked for
voluntary submission of revised Title VI Programs thirty days in
advance of expiration of the previously approved Title VI Program. As
discussed in the Implementation plan, above, on or about October 1,
2012, FTA will post on its Web site information about each recipient's
new ``due date'' and ``expiration date.'' Providing an orderly and
staggered submission of Title VI Programs will enable FTA to review
Title VI Programs more quickly and provide technical assistance as
needed to ensure recipients are submitting Title VI Programs on which
FTA can concur. This section also notes how the status of a recipient's
Title VI Program will be noted in TEAM. The three status determinations
are ``concur,'' ``in review'' and ``expired.'' This is a revision to
our proposed determinations of ``approval,'' ``conditional approval,''
``pending,'' and ``expired.'' This is a management tool that will allow
FTA to more accurately determine when a Title VI Program is up-to-date.
We proposed removing the ``eliminating redundancy'' subsection in the
existing Circular, as we have determined that recipients must include
all required information in each Title VI Program submission. One
commenter objected to removal of this provision; we continue to believe
that recipients must submit a complete Title VI Program every three
years, even if there are elements that are unchanged.
We proposed continuing the reporting requirement exemption for the
University Transportation Center Program, National Research and
Technology Program, Over the Road Bus Accessibility Program and Public
Transportation on Indian Reservations program. We also included a new
provision that FTA may exempt a recipient, upon receipt of a request
for waiver submitted to the Director of the Office of Civil Rights,
from the requirement to submit a Title VI Program, or from some
elements of the Title VI Program. Commenters asked about what sort of
situation would justify an exemption; there may be unique situations
that justify an exemption, and FTA wishes to have this flexibility. The
absence of the requirement to submit a Title VI Program does not
obviate the underlying obligations to comply with Title VI.
FTA received several comments on section (4) of Chapter III. Some
commenters wanted to know what the penalty would be for not submitting
an updated Title VI Program the proposed 30 days prior to expiration. A
recipient who submits its Title VI Program after its due date runs the
risk of having draw-down privileges suspended, or grants not processed.
Further, a Title VI Program can only be in ``in review'' status for 60
days, so it is in the best interest of the recipient to submit the
Program 60 days prior to expiration. In the event it takes longer than
60 days for FTA to review a Title VI Program, the status will remain
``in review'' until FTA has completed its review, although FTA expects
that Title VI Programs will be reviewed within this time period. In the
event a submitted Title VI Program does not meet the requirements of
the Circular and the problems are not corrected by the expiration date,
the status will change to ``expired'' and draw-down privileges may be
suspended and grant processing could be impacted. In response to
comments that FTA should require recipients to submit Title VI Programs
annually for review, an annual submission cannot be effectively
administered by either recipients or FTA. However, FTA can request
information from recipients at any time if FTA has concerns about Title
VI compliance.
Some commenters asked about subrecipient submission of Title VI
Programs to primary recipients, and others questioned the feasibility
of including subrecipient Title VI Programs in the primary recipient's
submission to FTA. Primary recipients may set a three-year schedule for
their subrecipients that may or may not conform to the primary
recipient's three-year reporting schedule to FTA. This will allow
primary recipients with numerous subrecipients to stagger those
submissions. In response to comments, FTA has amended the reporting
requirement to remove the provision about including copies of
subrecipient's Title VI Programs when primary recipients submit their
Title VI Programs to FTA. FTA agrees that it can review subrecipient
Programs during State Management Reviews, Triennial Reviews, and Title
VI Compliance Reviews of primary recipients. Some commenters suggested
that requiring all subrecipients to complete a Title VI Program is
burdensome and may discourage potential subrecipients from applying for
Federal funding, while others requested that subrecipients receiving
small amounts of funds not be subject to Title VI reporting. All
subrecipients of Federal funding are required to comply with Title VI,
so we decline to remove the reporting requirement; however, recipients
and subrecipients that provide demand response service, including
vanpools, general public paratransit, ADA complementary paratransit,
and, as discussed above, non-profit entities that receive section 5310
funds solely to serve their own clientele (i.e., closed-door service),
are only required to comply with the Chapter III requirements. Further,
all subrecipients may choose to adopt the primary recipient's notice to
beneficiaries, complaint procedures and complaint form, public
participation plan, and language assistance plan. We have
[[Page 52122]]
added language to this section to clarify this.
The remainder of Chapter III consists of detailed descriptions of
each element of a Title VI Program. In regard to the requirement to
develop and post a notice for beneficiaries about their rights under
Title VI, commenters asked for suggestions regarding where the notice
should be posted, specifically which locations are required and which
are recommended; requested that the dissemination should include non-
passengers; and that the notice include other protected classes, such
as age, gender and disability. In response, FTA has provided that at a
minimum, the notice must be available on a recipient's Web site and in
public areas of its offices. We encourage recipients to post notices at
stations or stops, and/or on transit vehicles. FTA has no objection to
recipients including a general non-discrimination provision in their
Title VI notices, as long as it is clear which groups are protected
under Title VI.
Commenters requested that documentation related to Title VI
investigations, complaints and lawsuits be made readily available to
the public. This information must be reported in all recipients' and
subrecipients' Title VI Programs, which require Board or other policy
decision-making entity approval, which means the entire Title VI
Program is available to and may be requested by members of the public.
We made one change to section 6, Requirement to Develop Title VI
Complaint Procedures and Complaint Form: a requirement to post the
complaint form and complaint procedures on the recipient's Web site.
This will provide better access to individuals who want to file a
complaint.
FTA proposed providing significantly more guidance in the public
participation section than what is found in Circular 4702.1A, while
still allowing wide latitude for recipients to determine how, when, and
how often to engage in public participation activities, and which
specific measures are most appropriate. The Circular references the
public participation requirements of 49 U.S.C. Sections 5307(b) and
5307(c)(1)(I) (as amended by MAP-21, Public Law 112-141, July 6, 2012)
as well as the joint FTA/FHWA (Federal Highway Administration) planning
regulations at 23 CFR part 450. This section also cross-references
FTA's EJ Circular 4703.1, which has a chapter devoted to effective
public participation practices.
FTA received a number of comments on this section. In response to
comments, we have changed the title of this section from ``public
involvement'' to ``public participation,'' and replaced the word
``involvement'' with ``participation'' or ``engagement'' as
appropriate. Several commenters asked for clarification of terms such
as ``consider'' and ``respond to'' the needs of minority populations;
unless otherwise defined, words have their generally understood
meaning. Several commenters were concerned with language in this
section that gives recipients wide latitude in part based on their
available resources, stating this would allow agencies the discretion
to budget inadequate resources for these activities. Given the wide
variation in recipients' and subrecipients' budgets and size of
populations served, it is clear to FTA that resources should be a
consideration. Certainly it is not the only consideration, and FTA
lists a number of factors recipients should consider in developing
their public participation plans. Commenters asked FTA to define what
the minimum requirements are for public participation, how transit
providers would be held accountable for implementing their public
engagement plan, and suggested that implementing the proposed
strategies for public participation would require significant business
process reengineering. In response, FTA will review the public
engagement plan and its implementation when reviewing the Title VI
Program triennially; as for minimum requirements, as stated above and
in the Circular, recipients should take a number of factors into
consideration when developing their public participation plans,
including the types of activities under consideration, the population
affected, and the resources available. Recipients should already be
engaging in outreach activities designed to involve minority and LEP
populations in activities that have a public participation requirement,
and should consider that there are statutory and regulatory
requirements for public participation. Commenters suggested that FTA
provide more guidance to recipients in drafting public participation
plans, asked whether the plan is supposed to be process or outcome
oriented, and suggested that FTA should require recipients to engage in
efforts to reach people in the service area who are not passengers of
the transit system. In response, FTA's EJ Circular 4703.1 provides
detailed guidance on public participation strategies, and we have
included a reference to the EJ Circular in this section. Public
participation efforts are by their nature process-oriented, as
recipients can engage in substantial outreach and notification, set
meeting times and places that are accessible, but not have robust
attendance. Further, outreach efforts are usually not limited to
notices on buses or trains, but often include radio and television
public service announcements, as well as newspaper advertisements. All
of these methods will reach non-passengers. Recipients should document
their efforts to engage the public. One commenter asked FTA to clarify
the relationship between the Title VI Program and the public
participation plan, and suggested the Title VI Program be an appendix
to the public participation plan. While the public participation plan
is an element of a Title VI Program, it is also a stand-alone document,
into which Title VI considerations must be integrated. A recipient's
public participation plan will cover much more than how to engage
minority and LEP populations. In FTA's view, it would not be
appropriate to append the Title VI Program to the public participation
plan.
Section 9, Requirement to Provide Meaningful Access to LEP Persons,
addresses the existing requirement for a Language Implementation Plan
for Limited English Proficient (LEP) persons as well as a summary of
the DOT LEP guidance. We proposed including a description of the four
factor analysis, information on how to develop a Language
Implementation Plan, and a summary of the ``safe harbor'' provision.
Section 9 is a summary of the LEP requirements outlined in
Executive Order 13166, U.S. DOT LEP guidance, and U.S. DOJ LEP
guidance. Importantly, FTA cannot make substantive changes to this
section except to increase or decrease the amount of information
provided. In response to comments, we have provided more guidance
related to the four-factor analysis. Much of the information we added
comes from a self-assessment tool available on DOJ's LEP Web site,
www.lep.gov. Despite commenter's requests to revise or eliminate the
safe harbor threshold, the threshold is part of U.S. DOT and U.S. DOJ
guidance and FTA cannot issue guidance that is in conflict with these
provisions. We would also note that nothing in this section of the
Circular is ``new''--the Executive Order was issued in August 2000--so
recipients should be conducting four factor analyses and making
determinations about which vital documents should be translated, and
into what languages. One commenter suggested that the Title VI Notice
to Beneficiaries and complaint procedures should be translated; we
agree and have included both of these
[[Page 52123]]
in the non-exhaustive list of vital documents in section 9.b. We
decline to include an exhaustive list, but have included several
categories of documents, as well as some specific documents, that
should be translated based on a recipient's four factor analysis.
We proposed restoring the requirement, found in the U.S. DOT Title
VI regulation 49 CFR part 21, but not Circular 4702.1A, that a
recipient may not, on the grounds of race, color, or national origin,
``deny a person the opportunity to participate as a member of a
planning, advisory, or similar body which is an integral part of the
program.'' We proposed that as part of the Title VI Program, for non-
elected transit planning, advisory, or similar decision-making body,
recipients shall provide a table depicting the racial breakdown of the
membership of those bodies, and a description of the efforts made to
encourage participation of minorities on such decision-making bodies.
FTA received a number of comments on this proposal, generally stating
that recipients often do not have control over who is appointed to a
board of directors or other decision-making entity. In response, we
have revised this section to align more closely with the regulation--it
applies to planning and advisory councils or committees that are
selected by a recipient, such as Community Advisory Committees, Access
Committees, and other types of committees that have an advisory role to
an entities' general manager or board of directors but not the board
itself. In response to comments, we removed the requirement that such
committees be representative of the demographics of the communities
they serve; however, recipients must document their efforts to
encourage the participation of minorities on such committees.
We proposed moving the topics, ``Providing Assistance to
Subrecipients'' and ``Monitoring Subrecipients,'' found in the
Requirements for States chapter of Circular 4702.1A, to this chapter,
as these are existing requirements that are applicable to all
recipients that pass funds through to subrecipients, not just States.
The requirement to collect Title VI Programs from subrecipients is a
new requirement for transit providers that pass funds through to
subrecipients, but we note that anytime a recipient passes funds
through to a subrecipient, the entity passing funds through is
responsible for ensuring its subrecipients are complying with all
Federal requirements, not just Title VI. For those commenters concerned
about the large number of Title VI Programs they will receive, and
potential storage issues, subrecipient Title VI Programs may be stored
electronically. Collecting and reviewing each subrecipient's Title VI
Program will assist the primary recipient/transit provider in ensuring
all subrecipients are in compliance. The language in these sections is
substantially similar to the language in Circular 4702.1A.
For section 10, Providing Assistance to Subrecipients, commenters
suggested that the provision that primary recipients ``should
consider'' providing information to subrecipients should be a
requirement, and requested that FTA state that primary recipients
should provide a means by which all subrecipients can collect and share
data. We decline to mandate providing specific information to
subrecipients, as not all subrecipients will need the same types of
information from the primary recipient. We have added language
regarding a central repository for information for subrecipients.
FTA received several comments on section 11, Monitoring
Subrecipients. A key point that primary recipients should understand is
that if the subrecipient is out of compliance with Title VI--or any
other Federal requirement--then so is the primary recipient. Thus, it
is in the best interest of the primary recipient to both assist its
subrecipients with compliance, and monitor that compliance. In response
to comments, we have revised the text to state that primary recipients
must collect and review subrecipients' Title VI Programs. The Circular
does not specify exactly how a primary recipient shall monitor a
subrecipient's compliance, just that the primary recipient is
responsible for documenting its process for ensuring subrecipients are
complying with Title VI.
One commenter suggested that FTA develop a program of training and
assistance to aid primary recipients in carrying out technical
assistance for subrecpients. FTA will conduct ongoing training through
webinars and in-person presentations in order to ensure recipients and
subrecipients understand the requirements of the new Circular. Some
commenters expressed a preference for thresholds for subrecipient
reporting and monitoring, such that subrecipients that receive less
than `x' dollars would not be required to report to the primary
recipient, and the primary recipient would not be required to monitor
the subrecipients. FTA has taken steps to scale various requirements
based on size of agency and number of people served, but all recipients
and subrecipients must develop and submit Title VI Programs, all are
monitored for compliance, whether by FTA or a primary recipient, and
all must comply with Title VI. One commenter asked about the authority
for primary recipients to enforce subrecipient compliance; in FTA's
view it is less a matter of enforcement than it is of monitoring and
technical assistance. In the event of a complaint to FTA about
subrecipient noncompliance, FTA would investigate and take appropriate
enforcement action.
Several commenters expressed concern about FTA's proposal that
relieves primary recipients of the responsibility for monitoring
subrecipients when those subrecipients also receive funds directly from
FTA, and, therefore, report to FTA directly. Some cited a recent Ninth
Circuit case, Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir.
2010), in support of their position that a primary recipient's
obligations under Title VI are not delegable. Each year, FTA publishes
an apportionment notice, apportioning funds to designated recipients,
which are designated by law to receive and apportion FTA funds. In many
instances, the designated recipients do not actually receive the funds;
they allocate the funds to entities in their region that apply for
funds directly from FTA. These ``direct recipients'' enter into a
supplemental agreement with FTA and the designated recipient for
projects the designated recipient does not carry out itself. The
supplemental agreement allows the direct recipient to apply for funds
directly from FTA, and provides that the direct recipient will assume
all responsibilities as set forth in the grant agreement. Further, the
agreement provides that FTA and the direct recipient agree that ``the
Designated Recipient is not in any manner subject to or responsible for
the terms and conditions of this Grant Agreement.'' Each grant
agreement incorporates the terms of FTA's Master Agreement, which
includes a provision that requires recipients to comply with Title VI.
As a party to the supplemental agreement, FTA is therefore on notice
that the direct recipient will be applying for funds and will be
submitting a Title VI Program to FTA every three years.
Sometimes, a designated recipient will carry out projects itself or
through subrecipients. Some of these subrecipients may also be direct
recipients. Since these direct recipients are responsible for reporting
to FTA, there is no need for them to also submit Title VI Programs to
the designated (primary) recipient, and the primary recipient is not
responsible for monitoring compliance of that subrecipient. FTA
believes that a
[[Page 52124]]
requirement for dual reporting, as suggested by commenters, would be
overly burdensome and would not result in improved compliance with
Title VI.
Finally, we have removed the section, ``Guidance on Conducting an
Analysis of Construction Projects'' and inserted in its place,
``Determination of Site or Location of Facilities.'' The language in
Circular 4702.1A addresses environmental justice concepts as
incorporated into National Environmental Policy Act (NEPA)
documentation, and we have moved this analysis to the EJ Circular. We
proposed revising this section so that it cites the DOT Title VI
regulation and describes the requirements related to siting facilities.
Recipients must complete a Title VI analysis during project development
to determine if the project will have disparate impacts on the basis of
race, color, or national origin. If it will have such impacts, the
recipient may only locate the project in that location if there is a
substantial legitimate justification for locating the project there,
and there are no alternative locations that would have a less adverse
impact on members of a group protected under Title VI.
Most of the comments on this section asked for examples of what
constitutes a facility or project. We have revised this section to
clarify that bus shelters are not facilities, since those are covered
in transit amenities in Chapter IV. The types of projects to which this
section applies include vehicle storage facilities, parking lots,
maintenance and operations facilities, etc. Projects related to
passenger service, such as power substations for light rail, passenger
stations, etc., will be evaluated during project development and the
NEPA process.
E. Chapter IV--Requirements and Guidelines for Fixed Route Transit
Providers
Chapter IV covers much of the information that is in Chapter V of
Circular 4702.1A. Consistent with our desire to have the chapters
follow the same format, this chapter starts with an introduction,
includes a description as to which entities it applies, and then
describes the requirement to prepare and submit a Title VI Program,
followed by specific information related to each of the elements
contained in the Title VI Program.
In Circular 4702.1A, Chapter V applies to ``recipients that provide
service to geographic areas with a population of 200,000 people or
greater under 49 U.S.C. 5307.'' This sentence has created some
confusion as to whether recipients in areas with populations over
200,000 but that do not receive funds under 49 U.S.C. 5307 are required
to comply with this chapter. In order to eliminate this confusion, we
proposed a new threshold: Any provider of public transportation,
whether a State, regional or local entity, and inclusive of public and
private entities, with an annual operating budget of less than $10
million per year in three of the last five fiscal years as reported to
the National Transit Database (NTD) would only be required to set
system-wide standards and policies. Providers of public transportation
(also referred to as transit providers) with an annual operating budget
of $10 million or more in three of the last five consecutive years as
reported to the NTD; transit providers with an annual operating budget
of less than $10 million but that receive $3 million or more in New
Starts, Small Starts or other discretionary capital funds; and transit
providers that have been placed in this category at the discretion of
the Director of the Office of Civil Rights in consultation with the FTA
Administrator, would be required to set system-wide standards and
policies, collect and report demographic data, conduct service and fare
equity analyses, and monitor their transit service.
FTA received numerous comments on this proposal, many from transit
providers in small urbanized areas with annual operating budgets of
$15-20 million. Some of the commenter's stated objections included:
This change would result in a new unfunded mandate on transit systems
in small urban and rural areas; the reporting requirements would have
budgetary impacts that would affect the provision of transit service;
lumping providers in small and rural areas with large urbanized areas
was unreasonable; and the $3 million discretionary grant threshold
would discourage small providers from applying for those grants.
Commenters made a number of suggestions for alternative thresholds,
including keeping the same threshold that is in Circular 4702.1A, using
the NTD small system waiver for providers with fewer than 30 vehicles
in peak service, and using a 100 bus threshold. In addition, many rural
and small urban providers questioned the applicability of the reporting
requirements to general public demand response service.
In response to comments, and after examining several options, FTA
agrees that this chapter will apply only to fixed route transit
providers. Further, only transit providers in large urbanized areas
with 50 or more fixed route vehicles in peak service will be
responsible for the more comprehensive reporting requirements.
``Vehicles'' includes any vehicle used in revenue service, such as
buses, ferries, and railcars. All other fixed route transit providers,
regardless of population of the area, will only be required to set
system-wide standards and policies. In the Circular we have clarified
that providers that only operate general public demand response,
Americans with Disabilities Act complementary paratransit, vanpools,
and section 5310 non-profits that serve only their own clientele
(closed-door service) will be responsible only for Chapter III
reporting requirements.
This threshold ensures that small transit providers in large
urbanized areas will no longer be required to collect and report data,
conduct service and fare equity analyses, and monitor their transit
service. We have retained the provision that allows the Director of the
Office of Civil Rights, in consultation with the FTA Administrator, to
require a recipient to submit a more comprehensive Title VI Program, as
when a transit provider has a one-time or ongoing issue, likely related
to a complaint or otherwise compliance-related.
We proposed revising the description of the requirement in Circular
4702.1A to set system-wide service standards and policies. We proposed
removing the ``transit security'' policy, as a transit provider's
security policy may be impacted by considerable outside factors that
are not within the control of the transit provider. We proposed
blending the requirements in one section that covers both standards and
policies, rather than listing them separately. In the final Circular,
the standards and policies for vehicle load, vehicle headway, on-time
performance, service availability, transit amenities and vehicle
assignment remain substantially the same as proposed, except we removed
intelligent transportation systems (ITS) from the list of amenities. In
Circular 4702.1A, FTA recommends that recipients report on these
standards and policies, and allows recipients to report on other
standards and policies. In contrast to Circular 4702.1A, we proposed
that recipients will be required to report on these specific standards
and policies, rather than selecting different measures on which to
report. In practice, this is not a significant change, since most
transit providers report on these standards and policies, and do not
select other standards or policies on which to report.
[[Page 52125]]
As discussed above, the requirement to set system-wide service
standards and policies will apply to all fixed route transit providers,
regardless of population of the service area. The requirement to set
these standards and policies is a new one for fixed route transit
providers in small urban and rural areas. Some commenters located in
these areas stated they are not currently developing standards, and in
some cases they do not have the personnel or technology to capture on-
time performance or vehicle load data. From a business and customer
service perspective, it is important for transit providers to know if
their routes are running on time and how often or whether there is
standing-room-only space on the bus. These measures are not difficult
to capture, and this sort of basic data helps transit providers plan
and ensure they are providing a quality service. It is likely that FTA
would only ask for monitoring data from these transit providers in the
event there is a complaint or a problem noted in a compliance review.
FTA has adopted the proposed requirement that all fixed route
providers will report on the same standards and policies. Upon review
of issues raised by commenters, we have clarified that transit
providers will set service standards by mode, and the standards for
each mode may be different. For example, a transit provider with local
bus service, bus rapid transit (BRT) and light rail will likely have
different vehicle load standards and headways depending on the mode,
ridership, peak and off-peak weekday hours, weekends, owl service, etc.
Even on-time performance standards may be different, given that light
rail and possibly BRT travels on an exclusive fixed guideway, where
local bus service travels with other traffic. In addition, the
standards are transit provider-specific, not industry-specific or even
region-specific, and will depend on the characteristics and nature of
the service being provided.
Some commenters questioned the relevance of the standards and
policies in the circular, and preferred to develop alternative
standards and policies. The standards and policies that FTA is
requiring transit providers to set are directly related to what
passengers experience. Frequency of service, on-time performance, the
presence or absence of bus shelters and trash cans are part of the
customer experience, and are important not only from a Title VI
perspective, which strives to ensure that all passengers are having
similar experiences regardless of race, color, or national origin, but
also from a customer service perspective generally. The circular does
not require a specific frequency of service, set a vehicle load
standard, or mandate a certain level of service availability. These are
all local decisions. Once the transit provider has made these
decisions, by setting its own system-wide standards and policies, it
has an obligation to ensure the service is provided in a
nondiscriminatory manner.
Circular 4702.1A allows transit providers to choose among options
for demographic data collection, service monitoring, and service and
fare equity analyses. These options were added during the last revision
of the Circular in 2007, to ``reduce administrative burdens by giving
recipients and subrecipients greater flexibility to meet requirements
through procedures that best match their resources needs, and standard
practices.'' (72 FR 18732, 18735, Apr. 13, 2007). In reality, providing
options, including the option to develop a local alternative, has
created confusion and inconsistency. Therefore, we proposed removing
the options and providing one method of compliance for each of these
areas. By eliminating options and clearly stating what is required for
compliance, we add certainty for recipients and streamline the Title VI
Program review process. Only a few commenters objected to FTA removing
the options, and for the reasons stated above, we have adopted the
proposal to remove options and have just one method of compliance.
The requirement to collect and report demographic data applies only
to transit providers with 50 or more fixed route vehicles in peak
service in large urbanized areas. Circular 4702.1A allowed three
different options for collecting and reporting demographic data. We
proposed eliminating the options and requiring one method of compliance
with a simplified and streamlined customer survey data requirement. In
Circular 4702.1A, transit providers are required to collect data on
travel time, number of transfers, overall cost of the trip, as well as
how people rate the quality of service. We proposed instead that
transit providers collect data on travel patterns, such as trip purpose
and frequency of use.
Commenters expressed concern about the requirement that surveys be
conducted every three years, citing the cost of such surveys as a
barrier to implementation. In response, FTA has changed the required
frequency to not less than every five years. Surveys may be completed
in conjunction with other surveys, such as origin and destination
surveys used to update travel demand models. Several commenters
suggested that Census block groups may provide better data than Census
tracts; we agree and have added Census block groups as an option for
the demographic maps. Some commenters requested that Census data be the
basis for demographic information, as opposed to surveys. Census data
is very useful for determining the demographics of a service area, but
is not necessarily indicative of the demographics of a transit
provider's ridership. When transit providers have ridership data, they
can more accurately identify minority and non-minority routes and
determine travel patterns, which will assist in determining frequency
of use, how many passengers must transfer to get from their origins to
their destinations, etc. Commenters suggested that American Community
Survey may be a better source of community demographic data, especially
between Census counts. FTA has added ACS data as an acceptable source,
at the option of the transit provider.
The requirement to monitor transit service applies only to transit
providers with 50 or more fixed route vehicles in peak service in large
urbanized areas. Circular 4702.1A allows four different options for
monitoring service. We proposed removing the options and having one
means of complying with the requirement to monitor transit service. As
in Circular 4702.1A, transit providers must monitor their transit
service against the system-wide standards and policies set by the
transit provider. At a minimum, such monitoring will occur every three
years and the transit provider will submit the results as part of its
Title VI Program. Prior to submitting the information to FTA, we
proposed that transit providers will be required to brief their board
of directors or appropriate governing entity regarding the results of
the monitoring program, and include a copy of the board meeting
minutes, resolution, or other appropriate documentation demonstrating
the board's consideration of the monitoring program.
Some commenters requested that we consider keeping the local
option; as we stated above, by eliminating options and clearly stating
what is required for compliance, we add certainty for recipients and
streamline the Title VI Program review process, so we have adopted the
proposal that there be one method for complying with the service
monitoring requirement. We have reorganized this section from what was
proposed, without significantly changing the substance. Three
commenters asked for further clarification on developing policies or
procedures to determine whether
[[Page 52126]]
disparate impacts exist on the basis of race, color, or national
origin; Appendix J provides examples that are illustrative of this
determination.
The requirement to perform service and fare equity analyses applies
only to transit providers with 50 or more fixed route vehicles in peak
service in large urbanized areas. Circular 4702.1A allows two options
for evaluating service and fare changes; we proposed removing the
option for a locally developed alternative and having one means of
complying with the requirement to perform service and fare equity
analyses. We proposed that each transit provider to which this section
applies will: describe in its service equity analysis its policy for a
major service change; describe how the public was engaged in the
development of the major service change policy; describe the datasets
the provider will use in the service change analysis; prepare maps;
analyze the effects of proposed service changes; and analyze the
effects of proposed fare changes. In addition, we proposed the transit
provider will assess the alternatives available for people affected by
the fare increase or decrease or major service change, including
reductions or increases in service. Finally, we proposed the transit
provider will determine if the proposals would have the effect of
disproportionately excluding or adversely affecting people on the basis
of race, color, or national origin, or would have a disproportionately
high and adverse effect on minority or low-income riders.
FTA received numerous comments on the service and fare equity
section of this chapter. Beginning with the definition of a major
service change, commenters suggested that transit agencies be required
to define major service change based on actual changes implemented in
the previous 3-5 years; suggested that FTA should define what
constitutes a major service change, so there isn't a ``hodgepodge'' of
major service change policies around the country; and suggested that
FTA require that major service change policies account for cumulative
impacts of service changes. We decline to accept these suggestions;
however, we have added language to this section that requires transit
providers to engage the public when establishing the threshold for a
major service change. In addition, we have added language suggesting
that the threshold for analysis should not be set so high so as to
never require an analysis; and, because the amount of service varies
from community to community, we have stated that the threshold should
be selected in order to yield a meaningful result in light of the
transit provider's system characteristics.
Commenters had a number of questions and suggestions about when to
conduct a service and fare equity analysis, how to determine if there
is a disparate impact, how to conduct separate Title VI and
environmental justice analyses, and when a service and fare equity
analysis must be submitted to FTA. In response to these and other
comments, as well as in response to recent compliance reviews and other
events that have occurred since we published the proposed Circular, we
carefully reviewed the disparate impact case law and re-drafted this
section in order to provide better guidance to transit providers about
how to conduct these analyses. We have added a section on developing a
disparate impact policy and clearly defined the legal test. We have
removed the reference to minority transit route for service equity
analyses, and instead provide guidance on how to select the appropriate
comparison populations with which to compare the impacts on minority
populations. We have separated out the Title VI and EJ analyses and
clarified that if there are populations that are both minority and low-
income, then a Title VI disparate impact analysis must be completed.
Only when an affected population is solely low-income would a transit
provider conduct an EJ analysis. Service and fare equity analyses must
be submitted to FTA every three years when the transit provider submits
the Title VI Program; however, FTA is available to provide technical
assistance to transit providers, and in the event of a complaint, may
ask to see a service and fare equity analysis in advance of a Title VI
Program submission.
A number of commenters suggested that temporary, short-term, or
promotional fares should be exempt from a fare equity analysis. We
agree and have added three exceptions to the requirement that fare
equity analyses be completed prior to fare changes. ``Spare the air
days'' or other promotional ``everyone rides free'' days do not require
a fare equity analysis, since all passengers will ride for free. In
addition, a promotional fare reduction that will last six months or
less does not need to be analyzed in advance. If the fare becomes
permanent or otherwise lasts longer than six months, then the transit
provider must conduct a fare equity analysis. Third, a temporary fare
reduction that is a mitigating measure for another action, such as
closure of rail stations that requires passengers to alter their travel
patterns, does not require a fare equity analysis. Several commenters
suggested that agreements for free or reduced fares provided to
individuals in exchange for a community or sponsor subsidy should not
be subject to equity analysis. It seems to us that in this situation,
the transit provider has set the fare and someone other than the
passenger is paying for it. In this case, we agree that a fare equity
analysis is not required unless the transit provider changes the fare.
Finally, we proposed that a transit provider would be required to
perform fare and service analyses for New Starts, Small Starts, and
other new fixed guideway capital projects prior to entering into a Full
Funding Grant Agreement (FFGA) or Project Construction Grant Agreement
(PCGA), and updated immediately prior to start of revenue operations.
Commenters generally objected to doing a service and fare equity
analysis at the time of an FFGA or PCGA, as the project could still be
many years from revenue operation. We agree and have revised this
requirement accordingly, such that a service and fare equity analysis
must be completed when the project is six months from revenue
operation. At the suggestion of a commenter, we have also removed the
reference to Federal funding of the project as a condition for
conducting the service and fare equity analyses. Pursuant to the Civil
Rights Restoration Act of 1987, it does not matter if the specific
project receives Federal funding if the transit provider receives
Federal funding.
F. Chapter V--Requirements for States
This chapter addresses requirements for States that administer FTA
programs. As in Circular 4702.1A, States must submit a Title VI
Program. This chapter clarifies that States are responsible for
including in their Title VI Program the information required from all
recipients in Chapter III, and that States providing fixed route public
transportation are responsible for the reporting requirements for
providers of fixed route public transportation in Chapter IV, in
addition to the information required in Chapter V. For clarity, we
proposed including as required elements in the Title VI Program all of
the elements under the ``Planning'' section in Circular 4702.1A, as
well as the elements listed for the Title VI Program in the existing
Circular. We also proposed cross-referencing information related to
Title VI that FTA and FHWA jointly assess and evaluate during the
planning certification reviews. As in Circular 4702.1A, States are
responsible for monitoring their subrecipients, whether
[[Page 52127]]
those are planning subrecipients or transit provider subrecipients.
FTA received a few comments on this chapter and we have made
several revisions. As with other primary recipients, we have removed
the requirement that States submit subrecipient Title VI Programs to
FTA. States shall collect subrecipient's Title VI Programs, on a
schedule determined by the State, and those submissions may be
staggered. Title VI Programs may be collected and stored
electronically. We have clarified that demographic maps shall analyze
the impacts of the distribution of State and Federal funds in the
aggregate for public transportation purposes, clarified that these maps
should be developed using Census or ACS data, and that minority data
may be provided in the aggregate. Commenters asked for clarification on
the demographic maps analyzing impacts of the distribution of funds
(proposed paragraph V.2.d.) and the analytical process that identifies
investments and potential disparate impacts (proposed paragraph
V.2.f.). We have more clearly stated the expectation and provided the
disparate impact legal test. Some commenters asked about subrecipient
reporting requirements; we direct readers to this discussion in Chapter
III--to reduce the burden on primary recipients and subrecipients,
subrecipients may choose to adopt the primary recipient's notice to
beneficiaries, complaint procedures and complaint form, public
participation plan, and language assistance plan.
G. Chapter VI--Requirements for Metropolitan Planning Organizations
The proposed chapter VI equates to chapter VII in Circular 4702.1A.
While MPOs are required, in Circular 4702.1A, to submit a Title VI
Program, the chapter is not clear that the information listed is
supposed to be included in the Title VI Program, along with the
requirements for all recipients. Therefore, we proposed a substantial
rewrite of this chapter that clarified the reporting requirements.
Since an MPO may fulfill several roles, including planning entity,
designated recipient, direct recipient of FTA funds, and a primary
recipient that passes funds through to subrecipients, we clarified the
Title VI reporting requirements for each of these roles.
MPOs were generally supportive of the changes to this chapter. Some
of the reporting requirements for States and MPO's are the same, so we
have made the same changes to the MPO chapter that we made to the State
chapter; namely, that minority data may be obtained from the Census or
ACS, the data may be aggregated, State and Federal funding may be
aggregated, and we have provided the disparate impact legal test.
Commenters suggested that for both Chapter V and Chapter VI, States and
MPOs be required to use demographic maps that show data at the Census
block group level. While it may be appropriate to do some planning
analysis at that level, particularly for fixed projects such as
maintenance facilities, we decline to require this. We have clarified
in both chapters that data should be displayed at the Census tract or
block group level. Some commenters requested comprehensive guidance on
the planning process be included in the Title VI Circular; however, FTA
and FHWA have developed comprehensive guidance on this process and we
do not believe it needs to be stated in the Title VI Circular. Some
commenters expressed a preference to keep the MPO Title VI reporting
requirement to every four years; however, as discussed above, FTA has
determined that all recipients will be on a three-year schedule.
H. Chapter VII--Effecting Compliance With DOT Title VI Regulations
This chapter is Chapter X in Circular 4702.1A. FTA believes it
makes sense from a flow and format point of view to move this chapter
up, followed by compliance reviews in Chapter VIII and complaints in
Chapter IX. This chapter generally tracks the DOT Title VI regulation
at 49 CFR Sections 21.13 and 21.15.
Some commenters suggested there should be a public participation
process for the development of corrective action plans for noncompliant
recipients. One commenter suggested that recipients should submit a
copy of the board resolution, meeting minutes, or similar documentation
with evidence that the board of directors or appropriate governing
entity or official(s) has approved the remedial action plan. We decline
to include a public participation component in the development of a
corrective action plan, but having the plan approved by the board of
directors or appropriate governing entity means the plan will be
available to the public. We revised this chapter accordingly.
I. Chapter VIII--Compliance Reviews
Chapter VIII, Compliance Reviews, is substantially similar to
Chapter VII of the same name in Circular 4702.1A. We proposed removing
from the list of criteria, ``the length of time since the last
compliance review,'' as in practice FTA has not used this criterion. As
in other chapters, we use the word ``recipient'' to include
subrecipients. In Section 6, we proposed removing the opportunity for
recipients to review and comment on a draft compliance review. This is
consistent with changes we are making in other civil rights processes,
and generated the most comments. We decline to put this provision back
in the Circular, as recipients participate in an exit interview with
the compliance review team, so there should be no surprises in the
final report. In addition, there is opportunity to provide information
to the review team subsequent to the completion of the review and prior
to publication of a final report.
J. Chapter IX--Complaints
The proposed Chapter IX contains most of the same content that is
Chapter IX of Circular 4702.1A. FTA proposed removing the ``letter of
resolution'' in Section 4 as it is duplicative of the ``letter of
finding'' issued when a recipient is found to be noncompliant with the
DOT Title VI regulations. We also proposed removing the appeals
process, as it is not required by the regulation and removing it will
assist with more efficient administration of the Title VI Program. We
have added information relating to when a complaint will be
administratively closed.
Several commenters suggested that FTA notify complainants once
their complaint has been accepted, notify complainants if FTA finds
noncompliance following a complaint, and define timelines for
resolutions of complaints to FTA. FTA does notify complainants of the
status of their complaints, and provides a letter at the conclusion of
an investigation as to the findings, as stated in section 5 of this
chapter. We decline to include timelines, as the amount of time it
takes to investigate and resolve a complaint depends on a number of
factors, including the complexity of the complaint. Commenters
requested that we reinstate the appeals process language, but we
decline to do so. In the event a complainant is not satisfied with the
outcome, complainants may contact FTA's Civil Rights Office to discuss.
K. Appendices
The proposed appendices are intended as tools to assist recipients
in their compliance efforts. FTA proposed adding nearly 40 pages of
appendices in order to provide more clarity and examples of what must
be included in a Title VI Program and the type of analysis that
recipients shall conduct.
Numerous commenters stated that the appendices would be very
helpful to recipients. The vast majority of comments received on the
appendices
[[Page 52128]]
have already been addressed in the chapters in which the requirements
are described. Some commenters asked that FTA be consistent between
what is described in the chapter and what is provided in the
appendices; we have taken a very careful look and made sure that the
information is consistent. A couple of commenters suggested that FTA
include a fictitious agency's Title VI Program in the appendix; we have
included examples of almost every item in a Title VI Program, and we
believe the information we have provided should be very beneficial to
recipients as they put their Title VI Programs together.
To begin, in Appendix A we added checklists for the elements
recipients must include in their Title VI Programs. Recipients can
literally ``check the box'' as they assemble the elements of their
Title VI Program.
Appendices B, C and D contain sample procedures and forms that
recipients may use as provided, or that they may modify. Appendix B
contains a sample Title VI Notice to the public. Appendix C contains a
sample Title VI complaint procedure, and Appendix D contains a sample
Title VI Complaint Form. All of these documents are ``vital documents''
for LEP purposes, and each appendix provides information about
providing the information in other languages as appropriate.
Appendix E provides a sample form recipients may use for tracking
transit-related Title VI investigations, lawsuits and complaints.
Appendix F contains a sample table depicting the racial breakdown of
the membership of various non-elected bodies, the membership of which
is selected by the recipient.
Appendix G contains samples for reporting service standards
(vehicle load, vehicle headway, on-time performance, service
availability) and Appendix H contains samples for reporting service
policies (vehicle assignment and transit amenities). For the service
standards for vehicle load and vehicle headway, we have provided two
methods of expressing the standard: In writing and in table format.
Recipients should provide both the written description and the table
when they submit the information in their Title VI Program. The service
standards for on-time performance and service availability, as well as
the service policies, require a written explanation only.
Appendix I provides sample demographic and service profile maps and
charts. Appendix J provides information on reporting the requirement to
monitor transit service. The appendix provides tables and maps as
examples of how to assess the performance of service on minority and
non-minority transit routes for each of the recipient's service
standards and service policies. The appendix provides sample tables and
written explanations for each of the service standards and policies.
These tables are examples of what recipients should submit with their
Title VI Programs. Unless requested to verify the information, FTA does
not need the raw data generated through the monitoring process.
Appendix K provides checklists for a major service change policy,
disparate impact policy, the considerations for a service equity
analysis, and considerations for a fare equity analysis. Use of these
checklists will assist transit providers in ensuring they have met the
requirements of analyzing major service changes and fare changes.
Appendix L provides information on the various types of recipients
and the reporting requirements for each type of recipient. There are
five flow charts that provide a pictorial representation of the
reporting requirements. Finally, Appendix M contains the same content
as Appendix D in the current Circular. This appendix provides technical
assistance resources for Title VI and Limited English Proficiency.
Issued in Washington, DC, this 22nd day of August, 2012.
Peter Rogoff,
Administrator.
[FR Doc. 2012-21167 Filed 8-27-12; 8:45 am]
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