[Federal Register Volume 71, Number 135 (Friday, July 14, 2006)]
[Notices]
[Pages 40178-40187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11071]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket Number: FTA-2005-23227]


Notice of Proposed Title VI Circular

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of proposed revisions and request for comment.

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SUMMARY: The Federal Transit Administration (FTA) is revising and 
updating its Circular 4702.1, ``Title VI Program Guidelines for Urban 
Mass Transit Administration Recipients.'' FTA is issuing a proposed 
Title VI Circular and seeks input from interested parties on this 
document. After consideration of the comments, FTA will issue a second 
Federal Register notice responding to comments received and noting any 
changes made to the Circular as a result of comments received. The 
proposed Circular is available in Docket Number: 23227 at http://dms.dot.gov.

DATES: Comments must be received by August 14, 2006. Late filed 
comments will be considered to the extent practicable.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FTA-05-23227 by any of the following methods: Web Site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT 
electronic docket site; Fax: 202-493-2251; Mail: Docket Management 
Facility; U.S. Department of Transportation, 400 Seventh Street, SW., 
Nassif Building, PL-401, Washington, DC 20590-0001; Hand Delivery: Room 
PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, 
SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: You must include the agency name (Federal Transit 
Administration) and the docket number (FTA-05-23227). You should submit 
two copies of your comments if you submit them by mail. If you wish to 
receive confirmation that FTA received your comments, you must include 
a self-addressed, stamped postcard. Note that all comments received 
will be posted without change to the Department's Docket Management 
System (DMS) website located at http://dms.dot.gov. This means that if 
your comment includes any personal identifying information, such 
information will be made available to users of DMS.

FOR FURTHER INFORMATION CONTACT: David Schneider, Office of Civil 
Rights, 400 Seventh Street, SW., Washington, DC, 20590, (202) 366-4018 
or at [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The authority for FTA's Title VI Circular derives from Title VI of 
the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq, which prohibits 
discrimination on the basis of race, color, or national origin in 
programs and activities receiving Federal financial assistance. 
Specifically, Section 601 of this Title provides that ``no person in 
the United States shall, on the ground of race, color, or national 
origin, be excluded from participation in, be denied the benefits of, 
or be subjected to discrimination under any program or activity 
receiving Federal financial assistance,'' (42 U.S.C 2000d). Section 602 
authorizes Federal agencies ``to effectuate the provisions of [Section 
601] * * * by issuing rules, regulations or orders of general 
applicability,'' (42 U.S.C. 2000d-1). The U.S. Department of 
Transportation (DOT), in an exercise of this authority, promulgated 
regulations, contained in 49 CFR Part 21 that effectuate the provisions 
of Section 601 and Title VI in general.
    FTA Circular 4702.1, titled ``Title VI Program Guidelines for Urban 
Mass Transit Administration Recipients,'' provides information on how 
FTA will enforce the Department of Transportation's Title VI 
regulations at 49 CFR Part 21. The Circular includes information, 
guidance, and instructions on the objectives of Title VI, information 
on specific grant programs covered by Title VI, a description of FTA 
data collection and reporting requirements, a summary of FTA Title VI 
compliance review procedures, a description of FTA process for 
implementing remedial and enforcement actions, information on how FTA 
will respond to Title VI complaints, and public information 
requirements. Circular 4702.1 was last updated on May 26, 1988.
    The proposed circular would make reference to and in some instances 
would summarize the text of other FTA guidance, regulations, and other 
documents. Many of the documents referred to will undergo revision 
during the life of the proposed circular. In all cases, the most 
current guidance document, regulation, etc will supercede any preceding 
information provided. FTA reserves the right to make page changes to 
proposed and final circulars regarding updates to other provisions, 
without subjecting the entire circular to public comment.
    Comments Related to Reporting Requirements: In addition to general 
comments concerning the draft Title VI Circular, FTA is seeking 
comments from its recipients and subrecipients concerning the costs and 
benefits associated with meeting the proposed Circular's guidance. 
Recipients and subrecipients are encouraged to comment on the number of 
hours and/or financial cost associated with implementing the Circular's 
guidance as well as the extent to which following the guidance will 
assist the recipient and subrecipient in achieving its organizational 
objectives.

I. Why is FTA revising its Title VI Circular?

    The DOT Title VI regulations and FTA Circular 4702.1 attempt to 
transform the broad antidiscrimination ideals set forth in Section 601 
of Title VI into reality. In the 18 years since FTA last revised its 
Title VI Circular, much of FTA's guidance has become outdated. Over 
those years, legislation, Executive Orders, and court cases have 
transformed transportation policy and affected Title VI rights and

[[Page 40179]]

responsibilities of recipients and beneficiaries. These laws, executive 
orders, DOT directives, and legal decisions include:
     The Intermodal Surface Transportation Equity Act (ISTEA), 
enacted in 1991; the Transportation Equity Act for the 21st Century 
(TEA-21), enacted in 1998; and the Safe Accountable, Flexible and 
Efficient Transportation Equity Act, a Legacy for Users (SAFETEA-LU), 
enacted in 2005. These reauthorizations created many programs and 
activities. While these new programs are bound by Title VI's 
prohibition on discrimination, Circular 4702.1 does not provide 
specific guidance that would help FTA recipients funded by these 
programs to comply with Title VI.
     Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' (issued in 1994) and the DOT Order on Environmental 
Justice 5610.2 (enacted in 1997). This Executive Order clarified and 
reaffirmed Federal agencies' Title VI responsibilities and addressed 
the effects of Federally-funded activities on low-income populations. 
The Executive Order contains three fundamental principles: (1) To 
avoid, minimize, and mitigate disproportionately high and adverse human 
health and environmental impacts, including social and economic 
effects, on minority and low-income populations; (2) to ensure full and 
fair participation by all potentially affected communities in the 
agency's decision-making process and; (3) to prevent denial of, 
reduction in, or significant delay in the receipt of benefits by 
minority and low-income populations.
    In 1997, DOT issued the U.S. DOT Order on Environmental Justice, 
which states that DOT will continually monitor its programs, policies, 
and activities to ensure that they conform with environmental justice 
provisions. The DOT Order applies to all policies, programs, and other 
activities that are undertaken, funded, or approved by FTA, including 
policy decisions, systems planning, metropolitan and statewide 
planning, project development and environmental review under the 
National Environmental Policy Act (NEPA), construction, and operations 
and maintenance. FTA recipients and subrecipients who perform these 
activities would benefit from guidance that describes how to administer 
programs and activities in a manner that is consistent with DOT Order 
5610.2.
     Executive Order 13166, ``Improving Access to Services for 
Persons with Limited English Proficiency'' (issued in 2000) and the 
``Department of Transportation Policy Guidance Concerning Recipients' 
Responsibilities to Limited English Proficient Persons'' (DOT LEP 
Guidance) issued in 2001 and revised and reissued in 2005 (See 70 FR 
74087). Executive Order 13166 requires Federal agencies and their 
recipients and subrecipients to examine the services they provide, 
identify any need for services to those with limited English 
proficiency (LEP), and develop and implement a system to provide those 
services so that people with LEP can have meaningful access to them. 
The Executive Order is designed to reinforce and implement the 
prohibition against national origin discrimination of Title VI. Under 
the Executive Order, each recipient and subrecipient of Federal 
financial assistance must take reasonable steps to provide meaningful 
access for people with LEP.
    In 2005, DOT issued policy guidance to clarify the responsibilities 
of recipients and subrecipients of Federal financial assistance from 
DOT and assist them in fulfilling their responsibilities to people with 
LEP. The guidance reiterates DOT's longstanding position that in order 
to avoid national origin discrimination, recipients and subrecipients 
must take reasonable steps to ensure that such people have meaningful 
access, free of charge, to their programs, services, and information. 
Circular 4702.1 already includes requirements for people with LEP, but 
falls short of the more nuanced and comprehensive instructions in the 
DOT LEP Guidance. The proposed circular will clarify the connection 
between language assistance and Title VI compliance.
     The Supreme Court ruling in Alexander v. Sandoval, 532 
U.S. 275 (2001). In this decision, the Supreme Court noted that U.S. 
Department of Justice (DOJ) and DOT regulations proscribing activities 
that have a disparate impact on people or organizations based on race 
are valid. At the same time, the decision foreclosed a private right of 
action to enforce these regulations. As a result of this decision, 
individuals and organizations seeking redress from disparate impact 
discrimination under Title VI are limited to filing administrative 
complaints with the DOT and its modal administrations requesting that 
their recipients or subrecipients comply with disparate impact 
prohibitions. The result is that Sandoval increases the likelihood that 
DOT, its modal administrations, and its recipients and subrecipients 
will be subjected to administrative complaints.
    In order to resolve such complaints, recipients of FTA funds and 
the general public would benefit from guidance clarifying what steps 
they should take to demonstrate that their programs, policies, and 
activities do not result in disparate impact on the basis of race, 
color, or national origin.
    Additionally, FTA is revising the Title VI Circular to eliminate 
outdated nomenclature, such as references to FTA as the ``Urban Mass 
Transit Administration'' and to statutes such as the ``Urban Mass 
Transit Act'' and the ``Federal Aid Urban System Program.''

II. What Factors Informed FTA's Revisions to the Title VI Circular?

    Before revising and updating the Title VI Circular, FTA took into 
consideration the following information:

DOT Title VI Regulations at 49 CFR Part 21

    The primary objective of the Title VI Circular is to provide 
guidance and instructions to ensure that recipients of FTA funding 
comply with DOT Title VI regulations. To this end, FTA reviewed the 
regulations at 49 CFR part 21 for ambiguous or open-ended provisions. 
For example, 49 CFR 21.5(b)(7) states that `` * * * even in the absence 
of prior discriminatory practice or usage, a recipient * * * is 
expected to take affirmative action to assure that no person is 
excluded from participation in or denied the benefits of the program or 
activity on the grounds of race, color, or national origin.'' However, 
neither the regulations nor the appendix specify what types of actions 
would meet the expectations of this provision. Likewise, the broader 
provision at 49 CFR 21.5(b)(2) that prohibits recipients from 
``utilizing criteria or methods of administration which have the effect 
of subjecting people to discrimination on the basis of their race, 
color, or national origin * * *'' is silent on procedures that 
recipients should use to identify and guard against discriminatory 
effects. Recipients would benefit from clear expectations on how to 
respond even to the relatively narrow requirement at 49 CFR 21.9(b) 
that ``* * * recipients should have available for the Secretary racial 
and ethnic data showing the extent to which members of minority groups 
are beneficiaries of programs receiving Federal financial assistance.'' 
The proposed circular would provide guidance and procedures for these 
provisions to assist compliance with the specific provisions in the DOT 
Title VI regulations.

[[Page 40180]]

Title VI Guidance External to the Department of Transportation

    Prior to revising the Title VI Circular, FTA reviewed guidance from 
the DOJ's ``Civil Rights Division Legal Manual on Title VI,'' the DOJ 
``Investigation Procedures Manual for the Investigation and Resolution 
of Complaints Alleging Violations of Title VI and Other Non-
Discrimination Statutes,'' and the Council on Environmental Quality 
(CEQ)'s ``Environmental Justice Guidance under the National 
Environmental Policy Act.'' The proposed Circular is consistent with 
the legal principles and procedures described in those manuals. The 
Circular's guidance on integrating Title VI and environmental justice 
analysis into recipients' NEPA documents is consistent with the CEQ 
guidance.

Concurrent Rulemaking Processes

    FTA and the Federal Highway Administration (FHWA) are in the 
process of revising the planning regulations for State Departments of 
Transportation (State DOTs) and Metropolitan Planning Organizations 
(MPOs) at 23 CFR part 450. Since these regulations inform State DOTs 
and MPOs on how to comply with Title VI, the proposed Circular would 
suspend issuing detailed Title VI guidance for these recipients and 
subrecipients of FTA funding. FTA will provide more detailed guidance 
after the final planning regulations are issued in 2007.

Complaints and Lawsuits Generated Since the Circular's Last Revision

    One of the objectives of the Title VI Circular is to provide 
guidance that, if implemented, would reduce the risk that grantees 
would be subjected to Title VI administrative complaints or to 
litigation. To this end, FTA reviewed past Title VI administrative 
complaints filed with FTA and Title VI lawsuits, including cases 
summarized in The Impact of Civil Rights Litigation Under Title VI and 
Related Laws on Transit Decision-Making (Transit Cooperative Research 
Program Legal Research Digest, June 7, 1997).
    Title VI complaints filed with FTA since 1995 include allegations 
that:
     Recipients provided a lower level and quality of service 
to minority riders using recipients' bus services than to white riders 
using recipients' rail services;
     Service and fare changes implemented by recipients had 
adverse and disproportionate impacts on minority populations; and
     Recipients disproportionately sited disruptive or 
polluting facilities such as busways, rail lines, and bus depots in 
predominantly minority and low-income communities, and sited clean fuel 
vehicles and facilities in predominantly white or more affluent 
communities; and recipients did not offer people with LEP the 
opportunity for involvement in decision-making.
    Title VI litigation filed against transit agencies or MPOs include 
allegations that:
     Recipients favored the construction of roads and highways 
over the provision of public bus transportation;
     Recipients required primarily minority passengers to pay 
toward the operation of the commuter rail system;
     Recipients increased fares and eliminated passes for bus 
riders who are predominantly minority and poor, while allocating funds 
to construct rail lines designed to serve a predominantly white and 
relatively affluent community; and
     Recipients funded transit service serving predominantly 
white and relatively affluent communities to a greater extent than 
transit service provided to predominantly minority and low-income 
communities.
    FTA determined that administrative complaints and litigation were 
filed in response to how recipients had allocated or structured their 
service and fares. The proposed Circular would include 
nondiscrimination guidance on these matters.

Recommendations of the Government Accountability Office (GAO)

    The proposed Circular would respond to the recommendations of a 
recent GAO report that analyzed how DOT and its recipients were 
providing language access to people with LEP. On November 2, 2005, GAO 
issued ``Better Dissemination and Oversight of DOT's Guidance Could 
Lead to Improved Access for Limited English-Proficient Populations.'' 
GAO was charged with investigating: (1) The language access services 
that transit agencies and MPOs have provided, and the effects and costs 
of these services; (2) how DOT assists its grantees in providing 
language access services; and (3) how DOT monitors its grantees' 
provision of these services.
    The GAO report recommended that the Secretary of DOT: (1) Ensure 
that DOT's revised LEP Guidance is distributed to all DOT grantees; (2) 
consider providing additional technical assistance to grantees in 
providing language access; and (3) more fully incorporate the revised 
guidance in current review processes, and establish consistent norms 
for what constitutes a language access deficiency.
    In response to the report's third recommendation, the proposed 
Circular would reference the DOT LEP Guidance. It would instruct all 
recipients and subrecipients to follow the procedures in that document. 
Title VI compliance reviews conducted after the proposed Circular is 
issued will assess whether or not recipients and subrecipients have 
followed the DOT LEP Guidance.

Changes in Industry Practices Since the Circular's Last Revision

    Prior to issuing the proposed Circular, FTA reviewed changes in 
industry practices since the Circular was last updated in 1988. FTA 
intends to ensure that recipients can comply with revised guidance 
using policies and procedures that are already incorporated into their 
business practices. The use of Geographic Information Systems (GIS) by 
transportation providers is an example of a recently-adopted industry 
practice that can assist recipients in complying with Title VI. 
According to the Transportation Cooperative Research Program Synthesis, 
GIS Options in Transit (Transit Cooperative Synthesis Project, December 
2004), close to 80% of transit agencies surveyed used GIS technology in 
2003. Agencies used GIS frequently for Title VI activities. Several 
provisions of the proposed Circular would allow a recipient or 
subrecipient to demonstrate compliance with Title VI by overlaying 
their services on a demographic map of their service area. Using these 
maps, recipients can determine if resources are distributed equitably 
to minority, low-income, and LEP populations.
    FTA also reviewed changes in industry practices to ensure that 
administrative activities widely adopted since 1988 would not 
disparately impact groups based on race, color, or national origin. 
Changes in industry practice with Title VI implications include 
measures to promote transit security and the development of intelligent 
transportation systems (ITS). In recent years, transit agencies have 
increased their security preparedness. Transit agencies, in cooperation 
with and supported by FTA have conducted risk and vulnerability 
assessments, created emergency preparedness plans, implemented safety 
and security awareness programs designed to encourage the active 
participation of transit passengers and employees in maintaining a safe 
transit environment, and conducted employee education and training, 
among other important measures. In a few metropolitan regions, 
primarily in New York City, officials have begun random screenings of 
passengers entering transit systems.

[[Page 40181]]

FTA seeks to ensure that these and other security activities are 
carried out based on objective criteria and are implemented without 
regard to race, color, or national origin. The proposed Circular would 
recommend that recipients serving urbanized areas of 200,000 persons or 
greater establish system-wide service standards for transit security 
and ensure that they are implemented in a nondiscriminatory way.
    In addition, ITS technology such as vehicle arrival information 
systems, automatic stop announcement systems, and electronic fare 
payment are being implemented by many transit providers and should also 
be provided without regard to race, color, or national origin. Other 
technology such as passenger counters and automatic vehicle locators 
can assist the recipient in ensuring that their level and quality of 
service is provided equitably. The proposed Circular would include 
provisions to ensure the equitable distribution of ITS and allow 
recipients to use ITS to comply with Title VI.

Results of FTA Title VI Oversight

    The proposed Circular would incorporate lessons learned from 
triennial reviews and discretionary Title VI compliance reviews 
conducted over the past three years. FTA reviewed the results of its 25 
discretionary compliance reviews of transit agencies, MPOs and State 
DOTs conducted since 2002. It also reviewed Title VI portions of 
triennial reviews conducted since 2002.
    In these reviews, FTA found the greatest number of deficiencies in 
the following areas:
     Failure to submit Title VI information to FTA;
     Failure to develop internal procedures and guidelines for 
monitoring compliance with Title VI; and
     Failure to conduct level and quality of service 
monitoring.
    In some cases, recipients failed because they found provisions in 
the existing Circular to be ambiguous or difficult to implement.
    The proposed Circular would clarify what Title VI information 
should be reported to FTA. The final Circular would also include 
examples of effective compliance practices.

Public Comments to the Docket

    The proposed Circular would incorporate comments received in 
response to FTA's notice and request for comments, published in the 
Federal Register on December 15, 2005 (70 FR 74422). In this notice, 
FTA sought input from interested parties on the existing Circular, 
including examples of problems with compliance, best practices for 
compliance, and proposals for changes.
    To date FTA has received 24 comments on the notice from transit 
agencies, MPOs, State DOTs, trade associations, and individuals. 
Commenters expressed views on the following provisions of the existing 
Circular:
1. Objectives of the Title VI Circular
    Four individuals or organizations commented on the objectives of 
the existing Circular, which are included in Chapter I of Circular 
4702.1. One commenter stated that the revised Circular should include a 
more detailed discussion of Title VI and specify that the 
implementation and administration of Title VI is a prime organizational 
responsibility. This commenter stated that the revised Circular should 
clarify the distinction between Title VI and Title VII and that the 
Circular should discuss the importance of providing equitable customer 
service and how doing so positively impacts the achievement of a 
recipient's organizational objectives.
    Another commenter stated that the Circular's objective of comparing 
transit services in minority versus nonminority communities 
insufficiently evaluates how a transit agency distributes its 
resources, and that transit resources should be distributed according 
to transit propensity--the likelihood of an area to utilize transit 
services. The commenter suggested that transit agencies be given the 
chance to explain the factors (such as car ownership, income, and 
density) that dictate how they distribute resources, and then compare 
the level and quality of services provided to minority and nonminority 
areas.
    A third commenter stated that the existing Circular lacks 
sufficient procedural guidelines for implementing agencies.
    Another commenter suggested that ``zero car populations'' should be 
allowed to benefit from FTA assistance.
    In response to these comments, the proposed Circular would include 
a description of the Title VI regulations at 49 CFR Part 21. The 
proposed Circular would also provide more detailed procedural 
guidelines in both the ``General Guidance'' and ``Program Specific 
Guidance'' chapters relating to recipients' larger organizational 
objectives. It would allow recipients to describe how their resources 
are distributed on the basis of race-neutral factors such as population 
density and expressed need for transit services.
    The proposed Circular would not specifically require recipients to 
provide benefits to ``zero car populations.'' However, the Circular's 
guidance, once implemented, would help recipients ensure equitable 
service to predominantly minority, low-income, and LEP populations, 
i.e., insofar as these populations are disproportionately without 
vehicles, the Circular should help ensure that they are equitably 
served by grant recipients.
2. Definitions
    Eight individuals or organizations commented on the list of defined 
terms in the existing Circular (Chapter I, Part 3 of Circular 4702.1). 
One commenter stated that the Circular's definition of ``minority or 
minority group persons'' was out of date, per the United States Census' 
new definition of race. Another commenter remarked that the race 
categories could lead a person to be counted twice, specifically in the 
categories of two or more races. Other commenters suggested that the 
Circular's definition of travel time be made consistent with the 
definition used by FTA under DOT's ADA regulations--pointing to terms 
in the ``Definitions'' section that were not included in the body of 
the Circular. Another commenter suggested new definitions for the terms 
``recipient'' and ``subrecipient.''
    Another commentator noted that the existing Circular does not 
define ``discrimination'' and suggested that revised definitions of 
discrimination be categorical (i.e., intentional and unintentional 
forms that result in disparate impact or inequitable treatment of 
organizational customers) and race neutral (i.e., show how an 
organization that focuses on delivering quality service to all 
customers consequently removes discriminatory impediments).
    Several commenters stated that the existing Circular's definition 
of ``minority transit route,'' which is defined as ``a route that has 
at least \1/3\ of its total route mileage in a Census tract or traffic 
analysis zone with a percentage of minority population greater than the 
percentage of the minority population in the transit service area'' may 
not accurately reflect the demographics of the populations that use or 
are served by those routes. Commenters proposed modifying this 
definition to one based on the route's actual ridership or a more 
precise analysis of the areas served by the route.
    In response to these comments, the proposed Circular would adopt a

[[Page 40182]]

definition of ``minority persons'' using the race categories as defined 
by the 2000 Census. Under the proposed circular's definition of 
``minority persons.'' some people may be counted twice; however, 
provided that the recipient analyzes all of its service area according 
to the new definition of ``minority persons,'' the recipient should 
arrive at consistent results.
    The proposed Circular would define only those terms and concepts 
that are included in the document's ensuing chapters. If a term is not 
included in the definitions section, recipients and subrecipients 
should rely on common usage or industry standards to define the term. 
For example, the existing Circular's definition of ``travel time,'' 
which is used to evaluate the quality of a recipient's service to 
minority and non-minority areas, requires all recipients to calculate 
travel time using a riding speed of 25 mph. The new Circular would not 
provide a standard calculation for travel time, but would instead allow 
recipients to base this calculation on their knowledge of their system 
and local factors.
    Likewise, the proposed Circular would not include a definition for 
``minority transit route.'' It would advise recipients to determine the 
effects of programs, policies, and activities on minority (and low-
income) groups using demographic information in ridership surveys and 
the U.S. Census, as circumstances warrant. For example, a recipient 
that proposes fare increases on its bus and rail service might review 
the results of ridership surveys to determine whether minority or low-
income people are disproportionately represented on any one mode of 
transit service. A recipient or subrecipient proposing to eliminate 
transit routes would examine ridership surveys, but also review Census 
information on the areas served by these routes to understand the 
demographics of the communities that would lose service. A recipient 
studying alternatives for constructing a new transit route would review 
Census data for the areas that would be served by the project and also 
those areas bisected by the project to better understand the benefits 
and burdens of the project for specific groups.
    The proposed Circular would include a definition of ``recipient,'' 
``subrecipient,'' and ``discrimination'' that are consistent with these 
terms as defined by statute.
3. Title VI Assurances
    The existing Circular requires applicants, recipients, and 
subrecipients to submit a signed civil rights assurance and a signed 
DOT Title VI assurance that all records and other information required 
by the Circular have been and would be completed by the applicant, 
recipient, or subrecipient (Chapter III, Parts 2(d) and 2(e) of 
Circular 4702.1).
    Two individuals or organizations commented on this provision. One 
commenter noted that since 1995, FTA has used one form that compiles 
all certifications and assurances of compliance with applicable Federal 
requirements and that this form is completed by grantees and submitted 
on an annual basis.
    Another commenter suggested that FTA clarify that recipients submit 
a Title VI assurance each time there is a change in the recipient's 
leadership.
    In response to these comments, the proposed Circular would allow 
applicants to submit the annual standard assurance form that compiles 
all certifications and assurances in lieu of submitting specific Title 
VI assurance forms. This annual submittal would ensure that an 
applicant's new leadership would certify compliance with Title VI as 
well as other FTA requirements.
4. Fixed Facility Impact Analysis
    The existing Circular requires all applicants, recipients, and 
subrecipients to conduct a fixed facility impact analysis to assess the 
effects of construction projects on minority communities and specifies 
the information to be collected for this analysis. If this information 
has been prepared as part of an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS), the applicant, recipient, or 
subrecipient should refer to the relevant information (Chapter III, 
Part 2(f) of Circular 4702.1).
    Three individuals or organizations commented on this provision. One 
commenter recommended that FTA incorporate guidance that fixed facility 
impact analyses also be conducted for those construction projects 
subject to documented Categorical Exclusions under parts (b) and (d) of 
DOT NEPA regulations at 23 CFR 771.117. (This guidance was previously 
provided to the commenter during a prior Title VI compliance review.)
    Another commenter suggested that recipients conduct fixed facility 
impact analyses for those construction projects not subject to an EA 
and EIS and that local communities be given the opportunity to verify 
or rebut information provided on these construction projects. The 
commenter also suggested that data requirements regarding fixed 
facilities may be different for passenger facilities compared to 
administrative and/or maintenance facilities and relevant reporting 
requirements should be tailored to the impact on the residents and 
transit providers.
    A third commenter asked whether the existing Circular's references 
to an EA or EIS are equated to the physical environment or equated to 
environmental justice communities.
    In response to these comments, the proposed Circular would clarify 
that recipients should assess the impacts to minority and low-income 
populations of construction projects subject to a Categorical Exclusion 
type (d) (``a documented categorical exclusion''), Environmental 
Assessment, or Environmental Impact Statement. Recipients may fulfill 
this requirement by including the steps described in the environmental 
justice analysis section of the proposed circular section in their NEPA 
process and documentation, and submitting the appropriate section of 
the Environmental Impact Statement, Environmental Assessment, or 
application for a Documented Categorical Exclusion to FTA.
    The NEPA regulations at 23 CFR 771.117(d) state that, for certain 
projects, applicants shall submit documentation that demonstrates that 
criteria for these Categorical Exclusions are satisfied, and that 
significant environmental effects would not result. Examples of these 
projects, as cited in the regulations, include construction of new bus 
storage and maintenance facilities in areas used predominantly for 
industrial and transportation purposes, rehabilitation or 
reconstruction of existing rail and bus buildings where only minor 
amounts of additional land are required and there is not a substantial 
increase in the number of users, and construction of bus transfer 
facilities when located in a commercial area or other high activity 
center in which there is adequate street capacity for projected bus 
traffic. Under the proposed Circular, recipients planning these and 
other projects that fall within 23 CFR 771.117(d) would submit, as part 
of their documentation to receive a Categorical Exclusion, an 
assessment of the project's impacts on minority and low-income 
communities.
    Under the proposed Circular, recipients and subrecipients would not 
be required to assess the impacts on minority and low-income 
communities of those construction projects listed at 23 CFR 771.117(c). 
These projects do not require any NEPA approvals by FTA. They include 
approval of utility installations along or across a transportation 
facility, the installation of noise barriers, landscaping, acquisition 
of scenic easements, and other projects

[[Page 40183]]

enumerated in this provision of the NEPA regulations.
    Also under the proposed Circular, recipients and subrecipients 
would not be required to assess the impacts on minority and low-income 
populations of those construction projects that do not significantly 
change the use, design, scale, or footprint of the facility.
    The proposed Circular would not establish different procedures for 
analyzing the effects on minority and low-income populations of 
passenger facilities compared to administrative and/or maintenance 
facilities, nor would the proposed Circular alter recipient's existing 
public participation obligations under NEPA.
5. Program Specific Reporting Requirements
    The existing Circular provides program-specific requirements for 
applicants, recipients, and subrecipients that provide public transit 
service primarily in service areas with populations over 200,000, as 
well as for State DOTs and MPOs (Chapter III, of Circular 4702.1).
    One organization commented on this framework. The organization 
suggested that FTA consider reduced reporting requirements for 
recipients/public transit service providers that have a significant 
minority population. The commenter also recommended that FTA reduce the 
data collection and reporting burden on public transit service 
providers that they determine to be ``low risk.''
    The proposed Circular would not take the approach suggested in this 
comment. Recipients serving areas with significant minority populations 
could be more sensitive to issues of discrimination on the basis of 
race, color, and national origin, and, therefore, less likely to 
violate Title VI, but the results of triennial reviews and Title VI 
compliance reviews conducted since 2002 demonstrate no relationship 
between the size or proportion of a recipient's minority population and 
the number of Title VI deficiencies found.
6. Demographic and Service Profile Maps, Overlays, and Charts
    The existing Circular requires transit providers serving areas with 
populations over 200,000 to prepare demographic and service profile 
maps, overlays, and charts detailing the recipient's service area and 
overlaying the transit service provided and the location of 
concentrations of minority people within the service area (Chapter III, 
Part 3(a)(1) of Circular 4702.1).
    Two individuals or organizations commented on this provision. One 
commenter stated that the Circular's existing requirement to prepare a 
base map showing major activity centers or transit trip generators, 
such as the central business district, outlying high employment areas, 
schools, and hospitals, might not accurately capture other major 
activity centers. Stores and childcare facilities may also be 
appropriate to include as additional locales. The commenter also asked 
how paratransit availability and usage fit in to reporting 
requirements.
    The second commenter suggested that in addition to preparing maps, 
overlays, and charts, recipients also should provide the following 
information: A comparison of the demographics of minority and 
nonminority riders using different modes, information on trip purposes 
by minority riders during peak and off-peak times, the percentage of 
system-wide trips taken by minority riders, the percentage of minority 
riders who are transit dependent and the overall percentage of system-
wide trips made by people who are transit dependent, the percentage of 
system-wide trips made by bus versus rail, and a comparison of minority 
and nonminority opinions concerning system performance, overall 
satisfaction, willingness to recommend transit to others, product 
awareness, and value for fare paid.
    In response to these comments, the proposed Circular would retain 
the requirement to map major activity centers and transit trip 
generators. However, the Circular specifies that this list should be 
locally determined and can include, but need not be limited to, the 
central business district, outlying high employment areas, schools, and 
hospitals.
    The proposed Circular would also recommend that recipients who meet 
the program-specific threshold collect information on the race, color, 
national origin, and income, and travel pattern of its riders 
(consistent with the specific information requests proposed by the 
commenter). This information can be integrated into customer surveys 
routinely performed by transit agencies.
7. Service Standards and Policies
    The existing Circular requires transit providers that serve areas 
with populations over 200,000 to establish system-wide service policies 
and standards related to Title VI (Chapter III, Part 3(a)(2) of 
Circular 47021.).
    Three individuals or organizations commented on this provision. One 
commenter requested that the revised Circular provide guidance on how 
to develop service standards for transit access, vehicle assignment, 
and level of service for commuter rail, and clarify how to determine 
maximum load points for fixed route bus service. Another commenter 
stressed that recipients should be required to establish a service 
standard only for those transit amenities that are under the direct 
responsibility of the recipient. A third commenter suggested that some 
measure of transit affordability should be added to the indicators 
identified under service standards and policies.
    In response, the proposed Circular's discussion of service 
standards and policies would provide guidance that would enable 
recipients operating commuter rail service to set system-wide standards 
for transit access and vehicle assignment. The revised guidance would 
discuss how recipients can determine maximum load points for vehicle 
load. The revised Circular would also specify that transit amenities 
not directly under the control of the recipient, such as bus stops and 
shelters that are established and maintained by a local municipality, 
would not be subject to a service standard by the recipient.
    The proposed Circular would not include a service standard for 
transit affordability, but would not prevent recipients from setting 
such a standard if they consider it appropriate. For example, 
recipients could price their fares so that the total cost to the rider 
of using the system on a frequent basis does not exceed a certain 
percentage of the average household income in the service area. 
However, this standard could mean that recipients would need to raise 
and lower fares as new information about household income or expenses 
is published, and such a policy would likely collide with a recipient's 
other strategic, financial, or functional objectives.
    The revised Circular would require recipients serving urbanized 
areas with populations of 200,000 or greater to identify and address, 
as appropriate, disproportionate and adverse impacts of proposed fare 
increases on minority and low-income people and attempt to minimize or 
mitigate the effects of proposals by which price-sensitive consumers 
would bear the brunt of a fare increase.
8. Assessment of Compliance by Grantees
    The existing Circular requires that transit systems serving areas 
with populations over 200,000 develop procedures and guidelines for 
monitoring compliance with Title VI. (Chapter III Part 3(a)(3) of 
Circular 4702.1).

[[Page 40184]]

    One organization commented on this provision. The commenter 
recommended that transit providers be instructed to undertake Title VI 
compliance assessments on an ongoing basis as policies change, so that 
transportation providers assess policies as they are being developed, 
and well in advance of implementation. The commenter also noted that 
the existing Circular provides no threshold definition for a system-
wide service change or a disproportionate impact. Transportation 
properties would benefit from specific guidelines about thresholds.
    In response to this comment, the proposed Circular would ask 
recipients to evaluate significant system-wide service and fare changes 
and proposed improvements at the planning and programming stages to 
determine whether the overall benefits and costs of such changes are 
distributed equally, and are not discriminatory. In addition, the 
environmental justice analysis of construction projects requested by 
the proposed Circular and typically prepared as part of the NEPA 
process would be prepared and submitted to FTA well in advance of 
project construction.
    The proposed Circular would not set a single threshold for the 
magnitude of a service change that would trigger recipients to study 
the impacts of the change. However, it would advise recipients to 
establish guidelines or thresholds for what they consider a ``major'' 
change to be. Often, this is defined as a numerical standard, such as a 
change that impacts 25% of the service hours of a route.
9. Information Dissemination
    The existing Circular requires transit systems that serve areas 
with populations over 200,000 to describe the methods used to inform 
minority communities of service changes related to transit service and 
improvements (Chapter III, Part 3(a)(4)(b) of Circular 4702.1).
    Two individuals or organizations commented on this provision. One 
commenter remarked that transportation properties would benefit from 
hearing from other transportation properties that employ non-
traditional methods to engage communities of color in the decision-
making process. The second commenter remarked that the existing 
Circular establishes no set thresholds for information dissemination.
    In response to these comments, FTA will consider including in the 
final draft of the Title VI Circular a list of effective practices used 
by recipients to engage minority, low-income, and LEP populations in 
decision-making processes. The proposed Circular would also include 
examples of measures targeted to overcome linguistic, institutional, 
cultural, economic, historical, or other barriers that may prevent 
minority and low-income individuals and populations from effectively 
participating in a recipient's decision-making process.
    The proposed Circular would not set a threshold for what type or 
magnitude of service changes would require the agency to disseminate 
information or involve the public (including minority, low-income, and 
LEP populations); however, the proposed Circular would cite examples of 
activities where public involvement is required or frequently 
conducted.
10. Minority Representation on Decision-Making Bodies
    The existing Circular requires transit systems that serve areas 
with populations over 200,000 to provide a racial breakdown of transit-
related non-elected boards, advisory councils, or committees, and to 
describe efforts made to encourage minority participation (See Chapter 
III, Part 3(a)(4)(c) of Circular 4702.1).
    Three individuals or organizations commented on this provision. One 
commenter stated that the existing Circular does not ask whether the 
racial composition of non-elected boards, advisory councils, or 
committees benefits minority and low-income committees. A second 
commenter stated that racial diversity among board members does not 
guarantee representation of an affected communities' issues. The 
commenter suggested that transportation properties might provide 
information regarding each members' networks and relationships with 
affiliated communities. A third commenter suggested that FTA establish 
a threshold for representation on boards. For example, if a minority 
population represents 51% of the customer base, then a member of this 
population should be allocated a board seat.
    The proposed Circular would not set quotas for membership on 
recipients' boards, advisory councils, or committees because the 
process for selecting members to these committees is a local 
prerogative. The proposed Circular would also contain general guidance 
on the obligations of State DOTs and MPOs to engage minority and low-
income communities in the planning process. FTA remains interested in 
efforts undertaken by recipients to encourage minority participation on 
its boards, advisory councils, and committees. FTA's Equal Employment 
Opportunity Circular, which is currently being revised and updated, may 
consider guidance on this provision.
11. Multilingual Facilities
    The existing Circular requires transit systems that serve areas 
with populations over 200,000 to provide a description of the extent to 
which bilingual speakers or materials are or would be used to assist 
non-English speaking people who want to use the transit system (See 
Chapter III, Part 3(a)(4)(d) of Circular 4702.1).
    Four individuals or organizations commented on this provision. All 
commenters stated that the DOT LEP Guidance should be incorporated into 
the revised Circular. One commenter also suggested that the revised 
Circular include strategies to overcome cultural barriers related to 
LEP.
    In response to these comments, the proposed Circular would request 
that all recipients and subrecipients follow the instructions in the 
DOT LEP guidance. The proposed Circular would also include examples of 
measures to overcome institutional, cultural, economic, historical, or 
other barriers that may prevent LEP populations from participating in a 
recipient's public involvement process. FTA will consider including in 
the final draft of the Circular a list of effective practices used by 
recipients to address cultural barriers related to LEP.
12. Requirements for Metropolitan Planning Organizations
    The existing Circular requires MPOs to undertake data collection 
and reporting requirements to ensure compliance with Title VI (Chapter 
III, Part 3(b) of Circular 4702.1).
    Two individuals or organizations commented on this provision. One 
commenter suggested that the MPO provisions of the existing Circular be 
reviewed. A second commenter stated that it would be helpful to have 
guidance on what the Executive Order on Environmental Justice requires 
from the MPO planning process. The Circular could provide useful 
guidance on effective methodologies, the frequency and means of 
analysis, and the reporting principles required of grantees for the 
triennial Title VI reports.
    FTA intends to work with the Federal Highway Administration (FHWA) 
to issue more specific guidance on the incorporation of Title VI and 
environmental justice principles into the metropolitan and statewide 
planning processes after FHWA has issued revisions to its planning

[[Page 40185]]

regulations at 23 CFR 450 (the rulemaking process for these regulations 
is currently underway and DOT expects to issue a final rule in 2007). 
In order to avoid conflicts between the guidance for MPOs in the 
revised Circular and in the revised planning rule, the proposed 
Circular would issue general interim guidance on how MPOs should comply 
with Title VI.
13. Requirements for State DOTs
    The existing Circular contains program-specific requirements for 
State agencies administering transit programs for elderly individuals, 
individuals with disabilities, and individuals living in rural and 
small urban areas. State agencies are required to ensure that their 
subrecipients are in compliance with Title VI requirements and 
demonstrate that subrecipients were selected for funding in a non-
discriminatory manner (Chapter III, Part 3(c) and 3(d) of Circular 
4702.1).
    Two individuals or organizations commented on these provisions. One 
commenter asked whether transit activities administered by State DOTs 
and funded with monies transferred from the FHWA will be subject to 
Title VI requirements. The commenter also noted that the existing 
Circular does not cover programs funded through the Job Access Reverse 
Commute grant program or the New Freedom grant program.
    The second commenter recommended that FTA consider providing 
conditional approvals for Title VI submissions from State DOTs while 
these submissions are being reviewed and approved by the FHWA. The 
commenter also suggested that FTA and FHWA work together to assist 
State DOTs to eliminate the problem of having FTA suspend a grant while 
FHWA reviews the recipient's Title VI submission.
    In response to these comments, the proposed Circular would clarify 
that any recipient or subrecipient of funds administered by FTA shall 
comply with the Title VI guidance contained in this Circular. The 
proposed Circular would also require State DOTs to submit directly to 
FTA all Title VI information related to programs funded by FTA and 
administered by the State DOT (such as transportation grants for 
seniors and people with disabilities and grants for rural 
transportation). This information would no longer be reviewed and 
approved by a representative from FHWA.
    The proposed Circular also would include general interim guidance 
for statewide planning. In order to avoid conflicts between the 
guidance in this area in the revised Circular and the revised planning 
rule, the proposed Circular issues general interim guidance on how the 
Statewide planning process should comply with Title VI.
14. Level and Quality of Service Monitoring
    The existing Circular requires all grantees that provide public 
transit service to develop and implement procedures to monitor 
compliance with Title VI (Chapter IV Part (2) of Circular 4702.1).
    Three individuals or organizations commented on this provision. One 
commenter noted that any level and quality of service methodology 
should analyze a numerically sufficient and demographically different 
number of Census tracts or traffic analysis zones. Monitoring 
procedures that require recipients to compare travel times from 
different areas to frequently traveled destinations should not identify 
solely those travel destinations used for work-related purposes.
    A second commenter suggested that FTA provide templates, samples, 
or models to assist recipients with a consistent way to report 
information such as monitoring levels and quality of service and 
compliance assessment.
    In response to these comments, the proposed Circular would request 
that recipients subject to level and quality of service monitoring 
identify the most frequently traveled destinations for riders using the 
recipient's service and, for each of these destinations, compare the 
average peak hour travel time to destination, average non-peak hour 
travel time to destination, number of transfers required to reach the 
destination, total cost of trip to the destination, and cost per mile 
of trip to the destination for people beginning the trip in the 
selected Census tracts or traffic analysis zones. The most frequently 
traveled destinations could include, but need not be limited to, 
destinations that are work-related. The proposed Circular would also 
encourage recipients to conduct statistical tests for significance on 
the results of their level and quality of service monitoring.
    In addition, FTA will consider including in the final draft of the 
Circular a list of effective practices used by recipients to monitor 
level and quality of service.
15. Compliance Reviews
    Chapter V of the existing Circular describes how FTA monitors 
compliance of applicants, recipients, and subrecipients with Title VI. 
This chapter includes descriptions of the type of compliance reviews 
FTA will conduct. It also includes FTA's criteria and procedures to 
determine compliance with Title VI.
    Three individuals or organizations commented on the provisions in 
this chapter. One commenter requested that FTA provide clear, specific 
guidance about the compliance review process, including information on 
types of reviews, remedial actions, and appeals. They recommended that 
flow charts would help illustrate FTA's expectations in these areas.
    A second commenter stated that triennial reviews are too infrequent 
to monitor recipients' compliance with the Title VI Circular. The 
commenter also recommended that FTA complete a review of a recipient's 
process. Another commenter suggested that Title VI reviews should be 
conducted by staff from FTA regional offices, rather than by national 
consultants who are not familiar with local issues, cultures, or 
populations. The commenter suggested that if consultants are used, they 
should have experience with the program areas that they are reviewing. 
Consultants who specialize in transportation in large metropolitan 
areas should not conduct reviews of transit service provided to rural 
areas. The commenter additionally stated that compliance reviews should 
be conducted so that all State DOTs are reviewed periodically rather 
than having one State DOT reviewed multiple times, and FTA's 
investigative reports should also be subject to a specific timeline. 
The commenter also suggested that FTA provide examples of best 
practices from State DOT review forms for local providers.
    In response to these comments, the proposed Circular would provide 
information on the criteria for selecting recipients and subrecipients 
for compliance reviews and the process recipients should follow to 
correct deficiencies identified in the reviews. The proposed Circular 
would provide information on remedial actions and appeals in its 
section on enforcement procedures.
    FTA reiterates its flexibility to determine, on a case-by-case 
basis, whether a Title VI desk audit or on-site review is warranted; 
whether the review should be conducted via consultants, FTA regional 
staff, or headquarters staff; what recipients and subrecipients should 
be subject to a review; and the timing of the release of the draft and 
final reports. As such, the proposed Circular will not include specific 
procedures in these areas.
    Nothing in this Circular would authorize FTA to alter the triennial 
review structure, which is mandated by Federal law. However, recipients 
may be subject to a discretionary Title VI

[[Page 40186]]

review in the years in between their triennial reviews.
16. Enforcement Procedures
    Chapter VI of the existing Circular describes the procedures and 
requirements for initiating remedial actions in cases of noncompliance 
and probable noncompliance with Title VI and summarizes FTA's 
enforcement procedures when a grant applicant, recipient, or 
subrecipient refuses or fails to comply voluntarily with remedial 
measures.
    Four individuals or organizations commented on the provisions in 
this chapter. One commenter questioned whether the guidance contained 
in the Title VI Circular is binding on recipients and requested that 
FTA clarify the existing and revised Circular's actual enforceability. 
The commenter also noted that clarity on the enforcement of the Title 
VI Circular is particularly critical in light of the Supreme Court's 
decision in Alexander v. Sandoval, which held that there is no private 
right of action to enforce the disparate impact regulations promulgated 
under Title VI. The commenter stated that the existing Circular's 
provisions relating to enforcement, oversight, or decisions made by the 
Secretary of Transportation do not appear to be followed with any 
regularity.
    Other commenters suggested that FTA update its enforcement 
procedures so that applicants or recipients have 90 days to correct 
deficiencies, and stated that there should be more clearly defined 
procedures for identifying violations of Title VI compliance and taking 
preventive measures.
    Another commenter suggested that FTA clarify whether the Secretary 
can disagree with the results of an enforcement hearing and what 
procedure would be followed under that scenario.
    In response to these comments, the proposed Circular would clarify 
that FTA would view recipients or subrecipients' failure to comply with 
one or more portions of the Circular's guidance would be a failure to 
comply with DOT Title VI regulations. For example, the Title VI 
Regulations at 49 CFR 21.9(b) require recipients to have available for 
the Secretary racial and ethnic data showing the extent to which 
members of minority groups are beneficiaries of programs receiving 
Federal financial assistance. In order for recipients serving 
populations of 200,000 people or greater to fulfill the requirement at 
section 21.9(b), the Circular would instruct these recipients to 
prepare and submit demographic service maps and overlays and 
demographic information obtained from ridership surveys. If the 
recipient does not prepare and submit this information, it would be 
considered deficient in its compliance with 49 CFR 21.9(b) unless the 
recipient could provide FTA with an adequate justification.
    FTA will consider a grantee to be non-compliant with the DOT Title 
VI regulations if, after an investigation of a recipient or 
subrecipients' practices, FTA determines that the entity has engaged in 
a pattern or practice of activities that have had the purpose or effect 
of denying people the benefits of, excluding them from participation 
in, or subjecting people to discrimination under the recipients' 
program or activity on the basis of race, color or national origin.
    In addition, the proposed Circular would clarify the timelines that 
would be used for correcting deficiencies and implementing protective 
measures.
17. Complaint Procedures
    Chapter VII of the existing Circular provides information on FTA 
procedures for filing complaints alleging discrimination on the basis 
of race, color, or national origin. Six individuals or organizations 
commented on the provisions of this chapter. One commenter remarked 
that recipients are not following the existing Circular's complaint 
procedures, and that the revised Circular should identify an appeals 
process that an aggrieved individual or complainant can follow.
    A second commenter suggested that the complaint provisions be 
updated to better define the responsibility of State DOTs to process 
Title VI complaints. Another commenter suggested that FTA provide 
timely notification to a recipient who has been the subject of a 
complaint, and provide the recipient with a copy of the complaint so 
that it may respond. Another commenter noted that there is little 
public awareness of the Circular's policy that recipients must 
advertise its complaint procedures to the public.
    Other commenters suggested that only those complaints with adequate 
information should be accepted for investigation, and FTA should 
clarify the amount of time allowed between FTA's acceptance of a 
complaint and the submission of the investigative report. Another 
commenter stated that the revised Circular should require recipients to 
designate a Title VI coordinator to respond to complaints, conduct 
training, perform internal compliance reviews, and handle 
administrative tasks. Further, the commenter suggested that Title VI 
complaints should be regarded as violations in the quality of service 
that programs, activities, or services give to customers who are 
internal or external to the organization.
    Because the proposed Circular is intended to be used by FTA 
grantees, the Circular's chapter on complaint procedures focuses on how 
FTA will interact with a recipient or subrecipient that has been 
subject to a Title VI complaint. FTA will engage in a separate effort 
to inform the public of its procedures for accepting and investigating 
Title VI complaints.
    The procedures in the proposed Circular would specify an appeals 
process, provide timely notice to complainants and recipients that FTA 
has accepted a complaint for investigation, and would allow recipients 
to receive a copy of the complaint, unless the complainant wishes FTA 
to withhold specific information from the recipient.
    Because Title VI complaints vary widely in their complexity and the 
length of time required to complete a thorough investigation, the 
proposed Circular would not include a specific timeframe for resolving 
all complaints. However, FTA is required by 49 CFR 21.11 to make a 
prompt investigation whenever information suggests a possible failure 
to comply with the regulations. The proposed circular would state that 
FTA strives to complete its investigation of complaints (either through 
administrative close or by issuing letters of resolution or finding) 
within 180 days of the date that FTA accepts a complaint for 
investigation.
    Comments related to notifying the public of their right to file a 
Title VI complaint are addressed in the ``General Reporting 
Requirements'' in Chapter IV of the proposed Circular.
18. Miscellaneous Comments
    In addition to commenting on specific provisions of the existing 
Title VI Circular, commenters expressed opinions on the following 
matters related to Title VI:

A. Environmental Justice

    Five individuals or organizations commented on the relationship 
between Title VI and the Executive Order and DOT Order on Environmental 
Justice. All commenters recommended that FTA integrate environmental 
justice principles and requirements into the revised Circular. In 
response to these comments, the proposed Circular would contain 
guidance and procedures that recipients and subrecipients are required 
to follow to identify and address adverse and disproportionate

[[Page 40187]]

impacts of their programs, policies, and activities on minority and 
low-income populations within their jurisdictions.

B. Reporting Requirements

    Five individuals or organizations commented on the reporting 
requirements of the Title VI Circular. One commenter urged that FTA 
make a concerted effort to minimize the record keeping and reporting 
burdens associated with its Title VI requirements, and that FTA seek to 
avoid redundancy within specific requirements as well as between Title 
VI and other oversight programs. FTA's Title VI requirements for 
transit agencies should dovetail with State-mandated recordkeeping and 
reporting requirements.
    Another commenter noted that the updated Circular should 
incorporate changes with the Paperwork Reduction Act of 1995. Another 
commenter suggested that the Title VI reporting cycle should be moved 
to a four-year cycle to be consistent with the MPO cycle specified 
under SAFETEA-LU. A third commenter asked whether recipients' triennial 
Title VI submissions are due three years after the earlier submission 
date or three years after the date the previous plan was approved.
    Commenters also requested that FTA provide training and technical 
assistance to help recipients complete the reporting requirements and 
provide guidance on how to respond to the Title VI questions in the 
triennial review.
    The proposed Circular would reduce record keeping and reporting 
requirements by allowing recipients to submit the standard annual 
certification and assurance in lieu of separate FTA and DOT Title VI 
assurances. It would eliminate the existing Circular's requirement that 
recipients provide FTA with a list of existing and pending grant 
applications. Recipients and subrecipients could collect Census data on 
the demographics of households affected by construction projects in 
lieu of submitting a detailed list of minority households and 
businesses (per the fixed facility impact analysis requirement of the 
existing Circular). The Circular would eliminate the redundant 
requirements in the provision to provide an assessment of Title VI 
compliance by grantees (in Chapter III Part 3(a)(3) of Circular 
4702.1). It would require that recipients include in their triennial 
Title VI reports to FTA only information that has changed or been 
updated since the prior submittal (the proposed Circular would also 
clarify that these submittals are due three years after the due date of 
the previous submittal). Additional changes to reporting requirements 
will be considered pursuant to comments received in this comment 
period.
    The proposed Circular would not convert the Title VI reporting 
requirements to a four-year cycle because FTA has an interest in 
coordinating recipients' Title VI submittals with its triennial review 
process.
    FTA will consider including in the final draft of the Circular a 
list of effective practices used to assist recipients in responding to 
the reporting requirements, as well as a list of people to contact for 
technical assistance.
    In addition, those grantees that are allowed to use a portion of 
the funds that they receive from FTA for planning and administrative 
purposes can use these funds to support their Title VI monitoring and 
reporting activities.

C. The Process for Revising the Title VI Circular

    Three individuals or organizations commented on the process of 
revising the Title VI Circular. One commenter suggested that FTA 
undertake a 60-day comment period to allow interested parties to review 
the draft Circular and that FTA engage compliance officers from a broad 
swath of the industry in tailoring requirements. Other commenters 
stated that FTA should seek public input on the draft circulars and 
address the concerns and needs of transit providers that use this 
guidance.
    This notice begins a 60-day comment period on the draft circular. 
During this comment period, FTA will make a concerted effort to notify 
stakeholders of the opportunity to comment on the draft document.

D. Comments Unrelated to the Notice and Request for Comment

    FTA received comments concerning the relative lack of attention and 
resources devoted by FTA's Office of Civil Rights to Title VI, compared 
to the Americans with Disabilities Act of 1990. It also received 
comments related to information posted on its Title VI website and to 
recent power point presentations made on Title VI. FTA regards all 
civil rights as important and strives to allocate resources 
accordingly. This notice does not provide a specific response to these 
comments as they are outside the scope of the December 15, 2005 notice 
and request for comment.

    Issued on July 10, 2006.
Sandra K. Bushue,
Deputy Administrator. 1
 [FR Doc. E6-11071 Filed 7-13-06; 8:45 am]
BILLING CODE 4910-57-P