[Federal Register Volume 70, Number 29 (Monday, February 14, 2005)]
[Rules and Regulations]
[Pages 7411-7414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2768]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 303

[Docket No. FMCSA-2002-13248]
RIN 2126-AA79


Title VI Regulations for Federal Motor Carrier Safety 
Administration Financial Assistance Recipients

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Interim Final Rule (IFR); request for comments.

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SUMMARY: FMCSA issues this Interim Final Rule (IFR) to clarify and 
modify the applicability of certain Federal Highway Administration 
(FHWA) and Departmental Title VI provisions that implement Title VI of 
the Civil Rights Act of 1964, and related nondiscrimination statutes, 
as they apply to FMCSA Federal financial assistance recipients. The 
``savings provision'' of section 106(b) of the Motor Carrier Safety 
Improvement Act of 1999 provides the opportunity for this clarification 
and modification. As part of this initiative, FMCSA establishes a new 
Part 303 under 49 CFR chapter III, Subchapter A, for future FMCSA Title 
VI implementing regulations and any future guidelines on Title VI 
compliance.
    This IFR will provide FMCSA with initial guidelines and procedures 
for implementing its Title VI procedures. This will be done by 
continuing to apply and use the Departmental umbrella Title VI 
regulations in 49 CFR part 21 to any program or activity for which 
Federal financial assistance is authorized under a law administered by 
FMCSA. FMCSA will remain subject to those Title VI requirements at the 
Departmental level, and will develop as needed further guidelines and 
procedures in accordance with the law to assure effective and 
consistent implementation for financially assisted recipients. FMCSA 
also removes itself from the FHWA Title VI regulations set forth at 23 
CFR part 200, because they are not appropriate for FMCSA programs and 
activities. Doing so will avoid any potential confusion while not 
altering the substantive Title VI obligations of FMCSA and its 
grantees.

DATES: This Interim Final Rule is effective March 16, 2005. We must 
receive your comments by April 15, 2005.

ADDRESSES: You may submit comments identified by the FMCSA docket 
number and/or Regulatory Identification Number (RIN) of this interim 
rule by any one of the following methods:
     Comments submitted by mail, in person, or Fax.
    U.S. Department of Transportation, Docket Management System (DMS) 
Facility, 400 Seventh Street, SW., Plaza Level, Washington, DC 20590; 
or FAX (202) 493'2251. You may examine the FMCSA docket, including any 
comments we have received, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
     Comments filed electronically.
    DMS Web site at http://dms.dot.gov; or
    Federal eRulemaking Portal at http://www.regulations.gov. Follow 
instructions for submitting your comments.
     Privacy Act:
    Please be aware that anyone is able to search the electronic form 
of all comments received into any of our dockets by the name of the 
individual submitting the comment (or signing the comment, if submitted 
by on behalf of an association, business, labor union, etc.). You may 
review DOT's complete Privacy Act Statement published in the Federal 
Register on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov.

Waiver of General Notice of Proposed Rulemaking

    FMCSA is issuing this Interim Final Rule (IFR) without prior notice 
and opportunity for comment pursuant to the Administrative Procedure 
Act (5 U.S.C. 553(b)). This provision allows an agency to issue a final 
rule without notice and opportunity to comment when the agency for good 
cause finds that notice and comment procedures are impracticable, 
unnecessary, or contrary to the public interest. This IFR clarifies the 
Title VI authorities covering FMCSA programs by deleting references 
specific to only FHWA programs and by stating specifically the 
applicability of the Department-wide Title VI regulations to FMCSA. 
Doing so will avoid any potential confusion while not altering the 
substantive Title VI obligations of FMCSA and its grantees. Under these 
circumstances, FMCSA has determined that an opportunity for notice is 
unnecessary, impracticable, or contrary to the public interest. We will 
respond to any comments we receive, and will amend the IFR if comments 
warrant any changes.

FOR FURTHER INFORMATION CONTACT: Ms. Carmen Sevier, (202) 366-4330, 
Office of Civil Rights (MC-CR), FMCSA, 400 Seventh Street, SW., 
Washington, DC 20590; [email protected]. Office hours are 
from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Background

    In early October 1999, Congress prohibited the FHWA from spending 
appropriated funds to carry out the motor carrier safety functions and

[[Page 7412]]

operations of its former Office of Motor Carrier and Highway Safety, 
unless the Secretary of Transportation (Secretary) redelegated that 
authority outside of the FHWA (see Pub. L. 106-69, 113 Stat. 986, at 
1022 (October 9, 1999)). Thereafter, the Department created the Office 
of Motor Carrier Safety (OMCS) within DOT to carry out the duties and 
powers related to motor carrier safety vested in the Secretary.
    On December 9, 1999, the President signed the Motor Carrier Safety 
Improvement Act of 1999 (MCSIA) (Pub. L. 105-159, 113 Stat. 1748). 
MCSIA created a new modal administration within the DOT--the Federal 
Motor Carrier Safety Administration--and transferred certain motor 
carrier safety and related responsibilities from the former OMCS to 
FMCSA. The FMCSA is charged with enforcing motor carrier safety 
requirements previously enforced by OMCS and its predecessors.
    To accommodate the organizational change, the Office of the 
Secretary published a final rule on January 4, 2000 (65 FR 220), 
rescinding authority previously delegated to the former OMCS, and 
redelegated it to the Administrator of the FMCSA beginning January 1, 
2000. Prior to MCSIA, the powers and authorities transferred to the 
FMCSA had been exercised by various entities within the Department, 
including FHWA. To preserve actions previously taken under such powers, 
section 106(b) of MCSIA contained a ``savings provision.'' Among other 
things, the savings provision preserved for FMCSA the applicability of 
various rules and regulations that were applicable to its predecessor 
agencies and offices. Included within such regulations are certain FHWA 
nondiscrimination protections and provisions that implement Title VI of 
the 1964 Civil Rights Act (42 U.S.C. 2000d, et seq., and related 
nondiscrimination statutes). The FHWA regulations, located in 23 CFR 
part 200, are applicable to recipients of Federal grant and cooperative 
agreement aid. Those regulations, which FHWA had promulgated in 1975 
and 1976, supplemented the Departmental umbrella Title VI protections 
contained in 49 CFR part 21.

Title VI

    Title VI states that ``No person in the United States shall, on the 
grounds of race, color, or national origin, be excluded from 
participation in, be denied the benefits of, or be otherwise subjected 
to discrimination under any program or activity receiving Federal 
financial assistance.'' In addition, Title VI and the other related 
nondiscrimination statutes \1\ bar intentional discrimination, as well 
as disparate impact discrimination, which is a neutral policy or 
practice that has an unequal and adverse impact on protected groups.
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    \1\ Nondiscrimination Program Requirements
    1. Title VI of the Civil Rights Act of 1964--``No person in the 
United States shall, on the grounds of race, color, or national 
origin, be excluded from participation in, be denied the benefits 
of, or be subjected to discrimination under any program or activity 
receiving Federal financial assistance.''
    2. Age Discrimination Act of 1975--``No person in the United 
States shall, on the basis of age be excluded from participation in, 
be denied the benefits of, or be subjected to discrimination under 
any program or activity receiving Federal financial assistance.''
    3. Section 504. Rehabilitation Act of 1973--``No qualified 
handicapped person shall, solely by reason of his handicap, be 
excluded from participation in, be denied the benefits of, or be 
subjected to discrimination under any program or activity that 
receives or benefits from Federal financial assistance.''
    4. Title IX of the Education Amendments Act of 1972 prohibits 
discrimination on the basis of sex, in education and training 
programs provided by recipients of Federal financial assistance. 
Title IX is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or 
activity receiving Federal financial assistance, whether or not such 
program or activity is offered or sponsored by an educational 
institution.
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Applicability of FHWA Title VI Provisions to FMCSA

    The FHWA regulations set forth at 23 CFR part 200 provide guidance 
on how FHWA will implement its Title VI compliance and define the role 
and responsibilities of State transportation agencies in ensuring 
compliance with Title VI. We have reviewed those regulations in light 
of FMCSA's motor carrier safety objectives as a new modal agency within 
the Department. We have concluded that those FHWA regulations in 23 CFR 
part 200 do not meet the needs of FMCSA Federal financial assistance 
recipients. This is because FHWA non-discrimination policies and 
procedures are geared toward highway planning and development, which 
generally involve much larger financial commitments than programs or 
activities of the FMCSA. Alternatively, the Departmental level 
implementing regulations in 49 CFR part 21 specify the manner and 
degree to which recipients must comply, and the basic recordkeeping 
requirements necessary to meet the intent of the nondiscrimination 
statutes. The Departmental regulations are broader in scope and 
therefore do not involve the degree of specificity required by the FHWA 
regulations. We have concluded that these broader regulations are more 
appropriate for the level of financial assistance involved in FMCSA 
programs or activities. For that reason, FMCSA clarifies and modifies 
the applicability of the FHWA Title VI provisions, and the Departmental 
level provisions, as they apply to FMCSA.

Programs or Activities

    Under this interim rule, FMCSA Federal financial assistance 
recipients must comply with the Title VI regulations in 49 CFR part 21 
for FMCSA-only programs or activities. As noted above, FMCSA believes 
the less cumbersome but equally effective Departmental provisions 
better accommodate the interests of State agencies and other recipients 
by providing them with more streamlined Title VI procedures than those 
established in 23 CFR part 200. FMCSA established a new Part 303 in 49 
CFR chapter III, Subchapter A, for its new Title VI implementing 
regulations. This will be done by adopting the Departmental Title VI 
provisions under 49 CFR part 21. FMCSA will remain subject to those 
requirements, and may develop further guidelines and procedures in 
accordance with the law to assure effective implementation by 
recipients.
    For Joint or Multi-agency programs or activities, FMCSA recipients 
must follow the requirements of 49 CFR part 21 unless an agreement is 
reached by the Federal funding agencies for the recipients to use those 
Title VI procedures of the Federal lead agency.\2\
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    \2\ The Federal lead agency is the agency that provides the most 
overall funding to the recipient.
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Conclusion

    FMCSA has carefully weighed the benefits to be gained by clarifying 
and modifying Title VI regulations applicable to the agency. By taking 
the agency out from under FHWA Title VI regulations, this action will 
likely increase grant and cooperative agreement participation levels 
for FMCSA programs or activities by simplifying reporting requirements. 
The FHWA Federal-aid programs or activities tend to be much more costly 
than the FMCSA financially assisted programs or activities. It will 
also lower administrative costs for grantees in carrying out their 
Title VI responsibilities. FMCSA will continue to apply and use the 
adequate Title VI protections under the Departmental umbrella 
regulations at 49 CFR part 21.

[[Page 7413]]

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    This Interim Final Rule (IFR) is considered a non-significant 
regulatory action within both the meaning of Executive Order 12866 and 
the Department of Transportation's regulatory policies and procedures. 
We anticipate that the economic impact of this IFR will be negligible, 
because all FMCSA Federal financial assistance recipients are currently 
complying with the requirements of Title VI. In fact, we have 
determined that there probably will be no cost impacts, because this 
IFR merely clarifies and modifies the applicability of certain Title VI 
provisions of the FHWA and of the Department as they concern FMCSA's 
Federal financial assistance recipients under the motor carrier safety 
program. This IFR also establishes a new Part 303 in 49 CFR chapter 
III, Subchapter A, to provide FMCSA with new Title VI implementing 
regulations, as well as any further procedures for ensuring compliance 
with Title VI. This has been done by adopting the Department's 
longstanding Title VI regulations at 49 CFR part 21. Thus, no 
regulatory analysis or evaluation accompanies this IFR. We invite 
comments from the public, however, to assess any potential costs or 
burdens that may be associated with this IFR.

Regulatory Flexibility Act

    FMCSA has evaluated the effects of this rule on small entities in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), as 
amended by the Small Business Regulatory Enforcement Fairness Act. By 
taking itself out from under the FHWA's Title VI reporting and 
procedural requirements, because they are not appropriate for the level 
of financial assistance in FMCSA's programs, the agency will ease the 
compliance standards for Title VI by all prospective FMCSA Federal-aid 
recipients. The IFR thus may have a limited, positive economic impact 
on small entities, among others. Accordingly, FMCSA certifies that this 
action will not have a significant economic impact on a substantial 
number of small entities.

Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4; 2 U.S.C. 1532, et seq.) requires Federal agencies to assess 
the effects of its regulatory actions on State, local, or tribal 
governments, or on the private sector. Any agency promulgating a 
proposed or final rule likely to result in a Federal mandate requiring 
expenditures by State, local, or tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year must 
prepare a written assessment of the costs, benefits, and other effects. 
In any event, regulations implementing civil rights requirements are 
explicitly excluded from unfunded mandates consideration. Thus, FMCSA 
has determined that this IFR will not have an annual impact of $100 
million or more.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 dated August 4, 1999. We 
have determined that this action will not have a substantial direct 
effect on, or sufficient federalism implications for the States, nor 
will it limit the policymaking discretion of the States. Nothing in 
this IFR directly preempts any State law or regulation.

Executive Order 13175 (Consultation and Coordination With Indian Tribal 
Governments)

    FMCSA has analyzed this action in accordance with the principles 
and criteria in Executive Order 13175, dated November 6, 2000. We 
believe this action will not significantly or uniquely affect the 
communities of Indian tribal governments and will not impose 
substantial direct compliance costs. Accordingly, Executive Order 13175 
does not apply to this IFR.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this IFR under Executive Order 13211, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). It is a procedural action, is not 
economically significant, and will not likely have significant adverse 
effect on the supply, distribution, or use of energy.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. We have determined 
that this IFR will not contain an information collection requirement 
for purposes of the PRA.

Executive Order 12988 (Civil Justice Reform)

    This action meets the applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (April 23, 1997) has special 
requirements that apply to certain rules that are economically 
significant under E.O. 12866. This IFR is not economically significant. 
Accordingly, Executive Order 13045 does not apply to this IFR.

Executive Order 12630 (Taking of Private Property)

    This IFR does not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217 Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Executive Order 13166 (Limited English Proficiency)

    Executive Order 13166, ``Improving Access to Services for Persons 
With Limited English Proficiency'' (LEP) applies to Federally assisted 
programs. It requires each Federal agency to examine the services it 
provides and develop reasonable measures to ensure that persons seeking 
government services but limited in their English proficiency can 
meaningfully access these services consistent with, and without unduly 
burdening, the fundamental mission of the agency.
    Its purpose is to clarify for Federal-fund recipients the 
reasonable steps those recipients should take to ensure that its 
programs or activities are meaningfully accessible to individuals who 
are LEP. To this end, the Executive Order on LEP requires each Federal 
agency to provide guidance on Federal financial assistance to ensure 
that the recipients' programs or activities are meaningfully 
accessible.
    In developing its Title VI program, the agency will explore whether 
additional outreach to LEP individuals is

[[Page 7414]]

appropriate. FMCSA will be operating under DOT LEP guidance. Thus, this 
IFR complies with the principles enunciated in the Executive Order.

National Environmental Policy Act

    This IFR is categorically excluded from environmental studies under 
paragraph 6.a. of the FMCSA Environmental Order 5610.1C dated March 1, 
2004 (69 FR 9680). This IFR merely clarifies and modifies FMCSA's Title 
VI program, the applicability of both the FHWA's and the Department's 
Title VI provisions, and establishes a new part in 49 CFR chapter III, 
Subchapter A, for civil rights matters.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in spring and fall of each year. The RIN located in the heading of this 
document is used to cross-reference this action with the Unified 
Agenda.

List of Subjects in 49 CFR Part 303

    Civil Rights, Implementation and review procedures, Title VI 
compliance program, Title VI program and related statutes, 
Transportation.

0
Based on the foregoing, FMCSA adds a new Part 303 for Civil Rights 
under 49 CFR chapter III, Subchapter A, to read as follows:

PART 303--CIVIL RIGHTS

Sec.
303.1 Purpose.
303.3 Application of this part.

    Authority: Public Law 105-159, 113 Stat. 1748, Title I, sections 
107(a) and 106 (Dec. 9, 1999) (49 U.S.C. 113); 42 U.S.C. 2000d, et 
seq.; and 49 CFR 1.73.


Sec.  303.1  Purpose.

    The purpose of this part is to provide guidelines and procedures 
for implementing the Federal Motor Carrier Safety Administration's 
(FMCSA) Title VI program under Title VI of the Civil Rights Act of 1964 
and related civil rights laws and regulations. For FMCSA-only programs 
or activities, Federal financial assistance recipients or grantees will 
continue to apply and use the Departmental Title VI provisions at 49 
CFR part 21. For joint and multi-agency programs/projects, FMCSA 
Federal assistance recipients or grantees must use the Title VI 
requirements at 49 CFR part 21, unless agreement is reached by the 
Federal funding agencies for the recipients to use the Title VI 
procedures of another agency.


Sec.  303.3  Application of this part.

    The provisions of this part are applicable to all elements of the 
FMCSA and to any program or activity for which Federal financial 
assistance is authorized under a law administered by the FMCSA. This 
part provides Title VI guidelines for State Departments of 
Transportation and local State agencies, including their sub-
recipients, to implement Title VI. It also applies to money paid, 
property transferred, or other Federal financial assistance extended 
under any program of the FMCSA after the date of this part.

    Issued on: February 7, 2005.
Annette M. Sandberg,
Administrator.
[FR Doc. 05-2768 Filed 2-11-05; 8:45 am]
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