Title VI; Final Circular, 52116-52128 [2012-21167]

Agencies

• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

[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: https://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, https://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), https://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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