[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Notices]
[Pages 60593-60599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25122]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2011-0054]


Title VI; Proposed Circular

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of availability of proposed Circular and request for 
comments.

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SUMMARY: The Federal Transit Administration (FTA) has placed in the 
docket and on its Web site, proposed guidance in the form of a Circular 
to assist grantees in complying with Title VI of the Civil Rights Act 
of 1964. The purpose of this Circular is to provide recipients of FTA 
financial assistance with instructions and guidance necessary to carry 
out the U.S. Department of Transportation's Title VI regulations (49 
CFR part 21). FTA is updating its Title VI Circular to clarify 
requirements for compliance. By this notice, FTA invites public comment 
on the proposed Circular.

DATES: Comments must be submitted by December 2, 2011. Late-filed 
comments will be considered to the extent practicable.
    Public Meetings: FTA and PolicyLink will co-sponsor a series of 
Information Sessions regarding FTA's proposed revisions to the Title VI 
Circular and proposed Environmental Justice Circular (see docket FTA-
2011-0055 for more information on the proposed Environmental Justice 
Circular). The meetings listed below will provide a forum for FTA staff 
to make oral presentations about the two proposed Circulars and allow 
attendees an opportunity to ask clarifying questions. Additionally, the 
sessions are intended to encourage interested parties and stakeholders 
to submit their comments directly to the official docket per the 
instructions found in the ADDRESSES section of this notice.
    These Information Sessions will take place as follows: Kansas City, 
MO on Tuesday, October 18, 2011 from 6-9 p.m.; Boston, MA on Tuesday, 
November 1, 2011 from 6-9 p.m.; Detroit, MI on Wednesday, November 9, 
2011 from 6-9 p.m.; the San Francisco Bay Area on Monday, November 14, 
2011 from 6-9 p.m.; and Atlanta, GA on Thursday, November 17, 2011 from 
6-9 p.m. All locations will be ADA- and transit-accessible.
    For details about the exact location of each Information Session 
(i.e., site name and address), please visit http://www.fta.dot.gov/FTAInformationSessions.
    In consideration of the comfort and safety of all attendees and the 
maximum seating capacity of meeting rooms, FTA requests RSVPs for the 
Information Sessions. To RSVP, please visit http://www.FTAInformationSessions.com. At the same Web link, persons with 
disabilities may request a reasonable accommodation.

ADDRESSES: Please submit your comments by only one of the following 
methods, identifying your submission by docket number FTA-2011-0054. 
All electronic submissions must be made to the U.S. Government 
electronic site at http://www.regulations.gov.
    (1) Federal eRulemaking Portal: Go to http://www.regulations.gov 
and follow the online instructions for submitting comments.
    (2) Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
    (3) Hand Delivery or Courier: West Building Ground Floor, Room W12-
140, 1200 New Jersey Avenue, SE, between 9 a.m. and 5 p.m. Eastern 
time, Monday through Friday, except Federal holidays.
    (4) Fax: 202-493-2251.
    Instructions: You must include the agency name (Federal Transit 
Administration) and Docket number (FTA-2011-0054) for this notice at 
the beginning of your comments. Submit two copies of your comments if 
you submit them by mail. For confirmation that FTA received your 
comments, include a self-addressed stamped postcard. Note that all 
comments received will be posted without change to http://www.regulations.gov including any personal information provided and 
will be available to Internet users. You may review DOT's complete 
Privacy Act Statement published in the Federal Register on April 11, 
2000 (65 FR 19477). Docket: For access to the docket to read background 
documents and comments received, go to http://www.regulations.gov at 
any time or to the U.S. Department of Transportation, 1200 New Jersey 
Ave., SE., Docket Operations, M-30, West Building Ground Floor, Room 
W12-140, Washington, DC 20590 between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For program questions, Amber 
Ontiveros, Office of Civil Rights, Federal Transit Administration, 1200 
New Jersey Ave., SE., Room E54-422, Washington, DC 20590, phone: (202) 
366-4018, fax: (202) 366-3809, or e-mail, [email protected]. For 
legal questions, Bonnie Graves, Office of Chief Counsel, same address, 
room E56-306, phone: (202) 366-4011, or e-mail, [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Overview
II. Chapter-by-Chapter Analysis
    A. Chapter I--Introduction and Background
    B. Chapter II--Program Overview
    C. Chapter III--General Requirements and Guidelines
    D. Chapter IV--Requirements and Guidelines for Transit Providers
    E. Chapter V--Requirements for States
    F. Chapter VI--Requirements for Metropolitan Planning 
Organizations
    G. Chapter VII--Effectuating Compliance With DOT Title VI 
Regulations
    H. Chapter VIII--Compliance Reviews
    I. Chapter IX--Complaints
    J. Appendices

I. Overview

    FTA is updating its Title VI Circular, last revised in 2007, to 
clarify what recipients must do to comply with the U.S. Department of 
Transportation (DOT) Title VI regulations. This notice provides a 
summary of proposed changes to FTA Circular 4702.1A, ``Title VI and 
Title VI-Dependent Guidelines for FTA Recipients.'' The final Circular, 
when adopted, will supersede the existing Circular.
    The proposed Circular would incorporate lessons learned from 
triennial reviews, discretionary Title VI compliance reviews, and a

[[Page 60594]]

comprehensive review of every Title VI Program submitted to FTA. In 
these reviews, FTA found some problems, several of them related to 
ambiguous language in the existing Circular. The proposed Circular 
reorganizes, clarifies, and provides examples of the information that 
must be included in a Title VI Program.
    The existing Title VI Circular contains many references to 
environmental justice (EJ). Executive Order 12898, ``Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations,'' was signed by President Clinton on February 11, 1994. 
Subsequent to issuance of the Executive Order, DOT issued an Order for 
implementing the Executive Order on environmental justice. The DOT 
Order (Order 5610.2, ``Order to Address Environmental Justice in 
Minority Populations and Low-Income Populations,'' 62 FR 18377, Apr. 
15, 1977) describes the process the Department and its modal 
administrations (including FTA) will use to incorporate EJ principles 
into programs, policies and activities; the DOT Order does not provide 
guidance for FTA grantees on what is expected regarding integrating EJ 
principles into the public transportation decisionmaking process. FTA 
has not previously published separate and distinct EJ guidance for its 
grantees, but instead has included environmental justice concepts in 
its Title VI Circular (Circular 4702.1A).
    Several instances of Title VI and EJ issues raised by FTA grantees 
led FTA to initiate a comprehensive management review of the agency's 
core guidance to grantees in these and other areas of civil rights 
responsibilities for public transportation. Based on that review, FTA 
determined a need to clarify and distinguish what grantees should do to 
comply with Title VI regulations; and, separately, what grantees should 
do to facilitate FTA's implementation of Executive Order 12898.
    Therefore, FTA is proposing to remove most references to 
environmental justice from the Title VI Circular in order to clarify 
the statutory and regulatory requirements for compliance with Title VI. 
In addition to the proposed revised Circular, FTA has also published, 
in this issue of the Federal Register, a notice of availability and 
request for comments for a new proposed EJ Circular 4703.1, 
``Environmental Justice Policy Guidance for Federal Transit 
Administration Recipients'' (Docket number FTA-2011-0055). The EJ 
Circular is designed to provide grantees with a distinct framework to 
assist them as they integrate principles of environmental justice into 
their public transportation decisionmaking processes, from planning 
through project development, operation and maintenance. FTA expects the 
additional clarification provided by both Circulars will provide 
grantees the guidance and direction they need to properly incorporate 
both Title VI and environmental justice into their public 
transportation decisionmaking. FTA encourages commenters to review both 
notices and provide comments on both documents.
    This notice provides a summary of the proposed changes to the Title 
VI Circular. The proposed Circular itself is not included in this 
notice; instead, an electronic version may be found on FTA's Web site, 
at http://www.fta.dot.gov, and in the docket, at http://www.regulations.gov. Paper copies of the proposed Circular may be 
obtained by contacting FTA's Administrative Services Help Desk, at 
(202) 366-4865. FTA seeks comment on the proposed Circular.
    Readers familiar with the existing FTA Circular 4702.1A will notice 
a number of changes to the proposed Circular. For example, we have 
changed the name of the Circular to ``Title VI Requirements and 
Guidelines for Federal Transit Administration Recipients,'' removing 
the ``Title VI-Dependent'' in the existing title as it refers to the EJ 
provisions in the existing Circular, and adding ``requirements'' to 
reflect inclusion of required actions to ensure compliance with DOT 
Title VI regulations. We propose retaining ``guidance'' in the title as 
the Circular includes actions that FTA encourages or recommends. In 
addition, we propose changing the format to make this Circular 
consistent with the style of other Circulars FTA has recently updated. 
At the same time, we have tried to maintain some consistency with the 
previous document; for example, most of the chapters still cover the 
same or similar subject matter. We discuss substantive changes in 
content in the chapter-by-chapter analysis.
    One important change made throughout the proposed Circular is that 
we have, where applicable, included the text of the DOT Title VI 
regulation that applies to the requirement. The existing Circular often 
cites the regulation, but does not quote or summarize the text, which 
leaves readers wondering what the rule really says. We believe it will 
be helpful for recipients to see the text or a summary of the 
regulation so they understand the nexus between the regulation and the 
requirements in the Circular.

II. Chapter-by-Chapter Analysis

A. Chapter I--Introduction and Background

    Chapter I of the existing Circular is entitled, ``How to Use This 
Circular.'' The content of this chapter has been eliminated or moved to 
other chapters as appropriate. Chapter I of the proposed Circular is an 
introductory chapter and covers general information about FTA and how 
to contact us, briefly reviews the authorizing legislation for FTA 
programs generally, provides information about FTA's posting of grant 
opportunities on Grants.gov, includes definitions applicable to Title 
VI, and provides a brief history of environmental justice and Title VI. 
Where applicable, we have used the same definitions found in 
rulemakings, other Circulars, and DOT Orders to ensure consistency. 
Importantly, we have restored the term ``primary recipient,'' which is 
found in the DOT Title VI regulations and FTA's 1988 circular but is 
not in the existing Title VI Circular. A primary recipient is a 
recipient that extends Federal financial assistance to a subrecipient. 
We also propose using the term ``recipient'' to mean any recipient, 
whether a direct recipient, a designated recipient, a primary 
recipient, or a subrecipient. We have also included a definition of 
``provider of public transportation'' or ``transit provider,'' to mean 
any entity that provides public transportation, whether a State, local 
or regional entity, and inclusive of public and private entities. This 
term is used exclusively in Chapter IV. We have restored the definition 
of ``minority transit route,'' a term removed during the last Circular 
revision. We have added some flexibility to the definition, allowing 
recipients to base the determination on route mileage, demographics, or 
ridership. Finally, there is a section describing environmental justice 
that references the proposed EJ Circular that FTA is developing 
concurrently with the proposed changes to the Title VI Circular. This 
section provides a permanent cross-reference to that guidance. FTA 
seeks comment on the content of Chapter I.

B. Chapter II--Program Overview

    We propose amending some of the content of this chapter. As 
previously stated, definitions have been moved to Chapter I. This 
chapter starts with program objectives and is followed by statutory and 
regulatory authority, as well as additional authority for the policies, 
requirements and recommendations stated in the Circular.

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Consistent with our goal of separating Title VI and EJ and developing 
the EJ Circular, we propose removing both the reference to DOT's Order 
on Environmental Justice and the objective related to addressing EJ 
principles from this chapter. We propose moving the ``determination of 
deficiencies'' subsection in the Reporting Requirements section and the 
Determinations section to Chapter VIII, Compliance Reviews.
    In the existing Reporting Requirements section, as well as in other 
places throughout the existing Circular, there is a statement that 
recipients are required to submit Title VI Programs every three years, 
or every four years in the case of metropolitan planning organizations 
(MPOs) that are direct recipients of FTA funds. We propose amending the 
reporting requirement so that all recipients are required to submit a 
Title VI Program every three years. We propose amending the Reporting 
Requirements section further by including a requirement that a 
recipient's board of directors or appropriate governing entity approve 
the Title VI Program before the recipient submits it to FTA. We 
anticipate such a requirement will greatly improve the quality of Title 
VI Programs that FTA receives. Further, we expect this requirement will 
add clarity and transparency to implementation of the Title VI Program 
at the local level. Recipients will be required to submit, with the 
Title VI Program, a copy of the Board resolution, meeting minutes, or 
similar documentation as evidence that the board of directors or 
appropriate governing entity has approved the program. FTA seeks 
comment on the content of Chapter II.

C. Chapter III--General Requirements and Guidelines

    Chapter III in the existing Circular is ``Requirements for 
Applicants.'' We propose eliminating the one-page chapter dedicated to 
applicants, and consolidating this information into what is the 
existing Chapter IV. Proposed Chapter III thus has the same name as the 
existing Chapter IV: ``General Requirements and Guidelines.'' The 
proposed Chapter III includes content from the existing Chapters III 
and IV.
    We added the regulatory reference for the requirement to provide 
Title VI assurances, but otherwise the text remains substantially the 
same as the similar section in existing Chapter IV. The information for 
applicants has not changed, except that we added one sentence at the 
end related to first-time applicants. This information is required 
under U.S. Department of Justice (DOJ) regulations. We have also 
removed references to environmental justice.
    We propose keeping much of the content of the existing Chapter IV 
in this chapter, but it has been reformatted to provide more clarity. 
Proposed Chapters III, IV, V and VI, which describe the specific 
requirements for different types of recipients' Title VI Programs, 
follow the same format. They start with an introduction and some 
general information. Following that is the requirement to prepare and 
submit a Title VI Program. The section describing the Title VI Program, 
in each chapter, cites the regulation and includes the regulatory text 
or a summary of the regulatory text. It provides information on Board 
or other governing entity approval of the Title VI Program. It then 
lists the elements required in the Title VI Program for that type of 
recipient. The sections following the Title VI Program submission 
requirements describe in more detail what FTA expects, and provide 
direction to enable recipients to comply.
    For example, Chapter III provides the list of elements that must be 
in every recipient's (and subrecipient's) Title VI Program. The first 
item on the list is ``a copy of the recipient's Title VI notice to the 
public that indicates the recipient complies with Title VI, and informs 
members of the public of the protections against discrimination 
afforded to them by Title VI. Include a list of locations where the 
notice is posted.'' The next section in that chapter is, ``Requirements 
to Notify Beneficiaries of Protection under Title VI.'' This section 
cites the regulation and provides information regarding what must be 
included in a Title VI notice. This section also clarifies the existing 
requirement by describing how documents should be disseminated, when 
documents must be translated, and notes that a subrecipient may adopt 
the primary recipient's Title VI notice. Thus, the detailed description 
for each required element is presented in a format that clarifies the 
existing requirements. In addition, we have provided samples of 
required documents in the Appendices.
    Since the proposed Chapter III applies to all recipients, we 
include in this chapter information on how to upload a Title VI Program 
to FTA's Transportation Electronic Award Management (TEAM) system. The 
Title VI Program must be uploaded to TEAM no fewer than thirty calendar 
days prior to the date of expiration of the previously approved Title 
VI Program. This is a new requirement, but FTA has previously asked for 
voluntary submission of revised Title VI Programs thirty days in 
advance of expiration of the previously approved Title VI Program. This 
section also notes how the status of a recipient's Title VI Program 
will be noted in TEAM. The four status determinations are ``approval,'' 
``conditional approval,'' ``pending'' and ``expired.'' We propose 
removing the ``eliminating redundancy'' subsection in the existing 
Circular, as we have determined that recipients must include all 
required information in each Title VI Program submission.
    We propose continuing the reporting requirement exemption for the 
University Transportation Center Program, National Research and 
Technology Program, Over the Road Bus Accessibility Program and Public 
Transportation on Indian Reservations program. We have also included a 
new provision that FTA may exempt a recipient, upon receipt of a 
request for waiver submitted to the Director of the Office for Civil 
Rights, from the requirement to submit a Title VI Program, or from some 
elements of the Title VI Program. There may be unique situations that 
justify the application of this exemption. The absence of the 
requirement to submit a Title VI Program does not obviate the 
underlying obligations to comply with Title VI.
    We propose including more information in several of the sections 
describing existing Title VI Program elements in order to clarify the 
requirements. For example, we provide significantly more information in 
the public participation section, while still allowing wide latitude 
for recipients to determine how, when, and how often to engage in 
public participation activities, and which specific measures are most 
appropriate. We have referenced the public participation requirements 
of 49 U.S.C. 5307(c) and 5307(d)(1)(I) as well as the joint FTA/FHWA 
(Federal Highway Administration) planning regulations at 23 CFR part 
450. This section also cross-references the proposed EJ Circular being 
developed concurrently with the proposed revisions to the Title VI 
Circular.
    The section that addresses the existing requirement for a Language 
Implementation Plan for Limited English Proficient (LEP) persons now 
contains a summary of the DOT LEP guidance. Specifically, we propose 
including a description of the four factor analysis, information on how 
to develop a Language Implementation Plan, and a summary of the ``safe 
harbor'' provision.
    We propose restoring the requirement, found in the regulations but 
not the existing Circular, that a recipient may not, on the grounds of 
race, color, or national origin, ``deny a person the

[[Page 60596]]

opportunity to participate as a member of a planning, advisory, or 
similar body which is an integral part of the program.'' As part of the 
Title VI Program, for non-elected transit planning, advisory, or 
similar decisionmaking body, recipients shall provide a table depicting 
the racial breakdown of the membership of those bodies, and a 
description of the efforts made to encourage participation of 
minorities on such decisionmaking bodies.
    We propose moving the topics, ``Providing Assistance to 
Subrecipients'' and ``Monitoring Subrecipients,'' found in the 
Requirements for States chapter of the existing Circular, to this 
chapter, as these are existing requirements that are applicable to all 
recipients that pass funds through to subrecipients, not just States. 
The requirement to collect Title VI Programs from subrecipients is a 
new requirement for transit providers that pass funds through to 
subrecipients; but we would note that anytime a recipient passes funds 
through to a subrecipient, the entity passing funds through is 
responsible for ensuring their subrecipients are complying with all 
Federal requirements, not just Title VI. Collecting and reviewing a 
subrecipient's Title VI Program will assist the primary recipient/
transit provider in ensuring the subrecipient is in compliance. The 
language in these sections is substantially similar to the language in 
the existing Circular.
    Finally, we have removed the section, ``Guidance on Conducting an 
Analysis of Construction Projects'' and inserted in its place, 
``Determination of Site or Location of Facilities.'' The language in 
the existing Circular addresses environmental justice concepts as 
incorporated into National Environmental Policy Act (NEPA) 
documentation, and we have moved this analysis to the EJ Circular. We 
propose revising this section so that it cites the DOT Title VI 
regulation and describes the requirements related to siting facilities. 
Recipients must complete a Title VI analysis during project development 
to determine if the project will have disparate impacts on the basis of 
race, color, or national origin. If it will have such impacts, the 
recipient may only locate the project in that location if there is a 
substantial legitimate justification for locating the project there, 
and where there are no alternative locations that would have a less 
adverse impact on members of a group protected under Title VI.
    FTA seeks comment on the content and format of Chapter III.

D. Chapter IV--Requirements and Guidelines for Transit Providers

    Proposed Chapter IV covers much of the information that is in the 
existing Chapter V. Consistent with our desire to have the chapters 
follow the same format, this chapter starts with an introduction, 
includes a description as to which entities it applies, and then 
describes the requirement to prepare and submit a Title VI Program, 
followed by specific information related to each of the elements 
contained in the Title VI Program.
    In the existing Circular, Chapter V applies to ``recipients that 
provide service to geographic areas with a population of 200,000 people 
or greater under 49 U.S.C. 5307.'' This sentence has created some 
confusion as to whether recipients in areas with populations over 
200,000 but that do not receive funds under 49 U.S.C. 5307 are required 
to comply with this chapter. In order to eliminate this confusion, we 
propose a new threshold: Any provider of public transportation, whether 
a State, regional or local entity, and inclusive of public and private 
entities, that has an annual operating budget of less than $10 million 
per year in three of the last five fiscal years as reported to the 
National Transit Database (NTD) will only be required to set system-
wide standards and policies. Providers of public transportation (also 
referred to as transit providers) with an annual operating budget of 
$10 million or more in three of the last five consecutive years as 
reported to the NTD; transit providers with an annual operating budget 
of less than $10 million but that receive $3 million or more in New 
Starts, Small Starts or other discretionary capital funds; and transit 
providers that have been placed in this category at the discretion of 
the Director of the Office of Civil Rights in consultation with the FTA 
Administrator, will be required to set system-wide standards and 
policies, collect and report demographic data, conduct service and fare 
equity analyses, and monitor their transit service.
    Approximately 97% of public transportation passengers ride on 
transit systems with annual operating budgets of $10 million or more. 
This threshold ensures that small transit providers, whether in a large 
city or a rural area, are not subject to the more comprehensive 
reporting requirements, while larger providers, regardless of 
geographic location, will be subject to the comprehensive reporting 
requirements. The proposed change in threshold will cause some transit 
providers who previously were not required to collect and report 
demographic data, conduct service and fare equity analyses, and monitor 
their transit service, to begin to do so. It will also allow some small 
transit providers in large urbanized areas who were collecting and 
reporting data, conducting service and fare equity analyses, and 
monitoring their transit service to stop doing so once the revised 
Circular takes effect. We selected $3 million in discretionary transit 
capital grants as the second threshold for comprehensive reporting as 
that would be a significant amount of funds for a transit provider with 
an annual operating budget of less than $10 million, and would justify 
the increased reporting requirement. Finally, we propose to allow the 
Director of the Office of Civil Rights, in consultation with the FTA 
Administrator, to require a recipient to submit a more comprehensive 
Title VI Program, as when a small transit provider has a one-time or 
ongoing issue, likely related to a complaint or otherwise compliance-
related.
    We propose that the annual operating budget is inclusive of all 
funds, whether Federal, State, local or other, and will be based on NTD 
data, recognizing that NTD data has an approximate two-year lag in 
producing final data. Therefore, we propose ``looking back'' to fiscal 
years 2006-2010 to determine whether a transit provider meets the $10 
million or more annual operating budget in three of the last five 
fiscal years as of the effective date of the Circular. In the Federal 
Register notice announcing the availability of the final Circular, we 
intend to provide a list of recipients that do not meet the current 
threshold of providing service in large urbanized areas but that will 
meet this new threshold. FTA proposes that transit providers who have 
not been required to set system-wide standards and policies, collect 
and report data, conduct service and fare equity analyses, and monitor 
their transit service under the existing FTA Circular 4702.1A, would be 
required to conduct service and fare equity analyses for major changes 
in transportation service or fare changes between the effective date of 
the Circular and their next Title VI Program submission. In addition, 
these transit providers would be required to update their current Title 
VI Programs to include service standards and policies, demographic and 
other data, including data related to monitoring their service. After 
the final Circular effective date, FTA will contact transit providers 
that are subject to these requirements for the

[[Page 60597]]

first time and provide technical assistance, as needed. FTA will 
provide an appropriate amount of time for these providers to submit the 
updated program. Beginning in FY 2015, FTA will publish, in its annual 
apportionment notice, new transit providers that meet the threshold, as 
well as transit providers that no longer meet the threshold. FTA seeks 
comment on this new threshold, and when it should take effect.
    We propose that small transit providers--those with annual 
operating budgets of less than $10 million--will be required to set 
system-wide standards and policies, and include these standards and 
policies in their Title VI Programs. This is a new requirement. We 
expect that most transit providers already have standards and policies 
for areas such as vehicle load, vehicle assignment, transit amenities, 
etc., and that reporting them in the Title VI Program would not be 
burdensome.
    Transit providers with total annual operating budgets of $10 
million or more or that otherwise meet the threshold described above 
will need to include in their Title VI Programs all of the following: 
their system-wide standards and policies; a demographic analysis of the 
transit provider's passengers; data regarding customer demographics and 
travel patterns; results of the provider's monitoring program; a 
description of the public engagement process for setting the major 
service change policy and disparate impact policy; results of any 
equity analyses conducted since the last Title VI Program submission; 
and a copy of board meeting minutes or a resolution demonstrating the 
board's consideration and awareness of any equity analyses completed.
    We propose revising the description of the existing requirement to 
set system-wide service standards and policies. First, as in other 
areas, we have included the relevant text of DOT's Title VI regulations 
to more clearly link the regulation with the requirement in the 
Circular. We propose removing the ``transit security'' policy, as a 
transit provider's security policy may be impacted by considerable 
outside factors that are not within the control of the transit 
provider. We propose blending the requirements in one section that 
covers both standards and policies, rather than listing them 
separately. The standards and policies for vehicle load, vehicle 
headway, on-time performance, service availability, transit amenities 
and vehicle assignment remain substantially the same. In the existing 
Circular, FTA recommends that recipients report on these standards and 
policies, and allows recipients to report on other standards and 
policies. In contrast to the existing Circular, we propose recipients 
will be required to report on these specific standards and policies, 
rather than selecting different measures on which to report. However, 
in practice, this is not a significant change, since most transit 
providers report on these standards and policies, and do not select 
other standards or policies on which to report.
    The existing Circular allows transit providers to choose among 
options for demographic data collection, service monitoring, and 
service and fare equity analyses. These options were added during the 
last revision of the Circular in 2007, to ``reduce administrative 
burdens by giving recipients and subrecipients greater flexibility to 
meet requirements through procedures that best match their resources 
needs, and standard practices.'' (72 FR 18732, 18735, Apr. 13, 2007). 
In reality, providing options, including the option to develop a local 
alternative, has created confusion and inconsistency. Therefore, we 
propose removing the options and providing one method of compliance for 
each of these areas. By eliminating options we make it clear to 
recipients what is required for compliance, and we streamline the Title 
VI Program review process. FTA seeks comment on this proposal.
    The requirement to collect and report demographic data applies only 
to transit providers with an annual operating budget of $10 million or 
more or that otherwise meet the threshold as stated above. The existing 
Circular allows three different options for collecting and reporting 
demographic data: Option A is developing demographic and service 
profile maps and charts; Option B is conducting customer surveys; and 
Option C is a locally developed alternative. We propose eliminating the 
locally developed alternative and requiring both options A and B, but 
with a simplified and streamlined customer survey data requirement. In 
the existing Circular, transit providers are required to collect data 
on travel time, number of transfers, overall cost of the trip, as well 
as how people rate the quality of service. We propose instead that 
transit providers collect data on travel patterns, such as trip purpose 
and frequency of use.
    The requirement to monitor transit service applies only to transit 
providers with an annual operating budget of $10 million or more or 
that otherwise meet the threshold as stated above. The existing 
Circular allows four different options for monitoring service: Option A 
is a level of service methodology; Option B is a quality of service 
methodology; Option C is an analysis of customer surveys, and Option D 
is a locally developed alternative. We propose removing the options and 
having one means of complying with the requirement to monitor transit 
service--a slightly modified Option A as the sole means of compliance, 
as most transit providers currently choose Option A and this Option 
provides sufficient information to ensure service is being provided in 
a nondiscriminatory manner. The one addition to this method of 
monitoring is an evaluation of policies related to transit amenities. 
As in the existing Circular, transit providers must monitor their 
transit service against the system-wide standards and policies set by 
the transit provider. At a minimum, such monitoring will occur every 
three years and the transit provider will submit the results as part of 
its Title VI Program. Prior to submitting the information to FTA, we 
propose that transit providers will be required to brief their board of 
directors or appropriate governing entity regarding the results of the 
monitoring program, and include a copy of the board meeting minutes, 
resolution, or other appropriate documentation demonstrating the 
board's consideration of the monitoring program.
    The requirement to perform service and fare equity analyses applies 
only to transit providers with an annual operating budget of $10 
million or more or that otherwise meet the threshold stated above. The 
existing Circular allows two options for evaluating service and fare 
changes: Option A, which outlines a specific procedure, and Option B, a 
locally developed alternative. We propose removing the option for a 
locally developed alternative and having one means of complying with 
the requirement to perform service and fare equity analyses. The 
proposed process for evaluating service and fare changes is more 
rigorous than what is required in the existing Circular. We propose 
that each transit provider to which this section applies will: Describe 
in its service equity analysis its policy for a major service change; 
describe how the public was engaged in the development of the major 
service change policy; describe the datasets the provider will use in 
the service change analysis; prepare maps; analyze the effects of 
proposed service changes; and analyze the effects of proposed fare 
changes. In addition, as in the existing Circular, the transit provider 
will assess the alternatives available for people affected

[[Page 60598]]

by the fare increase or decrease or major service change, including 
reductions or increases in service. Finally, the transit provider will 
determine if the proposals would have the effect of disproportionately 
excluding or adversely affecting people on the basis of race, color, or 
national origin, or would have a disproportionately high and adverse 
effect on minority or low-income riders.
    Finally, this chapter states when a transit provider will be 
required to perform a fare and service analyses for New Starts, Small 
Starts, and other new fixed guideway capital projects: prior to 
entering into a Full Funding Grant Agreement or Project Construction 
Grant Agreement, and updated immediately prior to start of revenue 
operations.
    FTA seeks comment on the content and format of Chapter IV.

E. Chapter V--Requirements for States

    This chapter addresses requirements for States that administer FTA 
programs. As in the existing Circular, States must submit a Title VI 
Program. This chapter clarifies that States are responsible for 
including in their Title VI Program the information required from all 
recipients in Chapter III, and that States providing public 
transportation are responsible for the reporting requirements for 
providers of public transportation in Chapter IV. For clarity, we have 
included as required elements in the Title VI Program all of the 
elements under the ``Planning'' section in the existing Circular, as 
well as the elements listed for the Title VI Program in the existing 
Circular. We also propose cross-referencing information related to 
Title VI that FTA and FHWA jointly assess and evaluate during the 
planning certification reviews. As in the existing Circular, States are 
responsible for monitoring their subrecipients, whether those are 
planning subrecipients or transit provider subrecipients. The 
description of this requirement has been removed from the State 
requirements chapter, and placed in Chapter III since it applies to all 
primary recipients. As in Chapter III, we propose removing the 
``eliminating redundancy'' subsection in the existing Circular, as we 
have determined that recipients must include all required information 
in each Title VI Program submission. FTA seeks comment on the content 
and format of Chapter V.

F. Chapter VI--Requirements for Metropolitan Planning Organizations

    The proposed chapter VI equates to the chapter VII in the existing 
Circular. While MPOs are required, in the existing Circular, to submit 
a Title VI Program, the chapter is not clear that the information 
listed is supposed to be included in the Title VI Program, along with 
the requirements for all recipients. Therefore, we have included the 
specific requirements that MPOs shall include in their Title VI 
Programs. Since an MPO may fulfill several roles, including planning 
entity, designated recipient, direct recipient of FTA funds, and a 
primary recipient that passes funds through to subrecipients, we have 
clarified the Title VI reporting requirements for each of these roles. 
We also propose cross-referencing information related to Title VI that 
FTA and FHWA jointly assess and evaluate during the planning 
certification reviews. Finally, since the MPO may have subrecipients, 
we include the same requirement that applies to States in the existing 
Circular: that the MPO prepare and maintain information regarding how 
it passes funds through to subrecipients in a nondiscriminatory manner. 
FTA seeks comment on the content and format of Chapter VI.

G. Chapter VII--Effecting Compliance With DOT Title VI Regulations

    This chapter is Chapter X in the existing Circular. FTA believes it 
makes sense from a flow and format point of view to move this chapter 
up, followed by compliance reviews in Chapter VIII and complaints in 
Chapter IX. This chapter largely tracks the DOT Title VI regulation at 
49 CFR 21.13 and 21.15. The only substantive change to this chapter is 
the addition of the language from 49 CFR 21.13(c) and (d): termination 
or refusal to grant or to continue to grant Federal financial 
assistance; and other means authorized by law. FTA seeks comment on the 
content and format of this chapter.

H. Chapter VIII--Compliance Reviews

    Chapter VIII, Compliance Reviews, is substantially similar to the 
existing Chapter VII of the same name. We propose removing from the 
list of criteria, ``the length of time since the last compliance 
review,'' as in practice FTA has not used this criterion. As in other 
chapters, we use the word ``recipient'' to include subrecipients. In 
Section 6, we propose removing the opportunity for recipients to review 
and comment on a draft compliance review. This is consistent with 
changes we are making in other civil rights processes. We proposed 
removing the compliance review flow chart, as it is unnecessary once 
the process is streamlined. FTA seeks comment on the content and format 
of this chapter.

I. Chapter IX--Complaints

    The proposed Chapter IX contains most of the same content that is 
in the existing Chapter IX. We propose removing the ``letter of 
resolution'' in Section 4 as it is duplicative of the ``letter of 
finding'' issued when a recipient is found to be noncompliant with the 
DOT Title VI regulations. We also propose removing the appeals process, 
as it is not required by the regulation and removing it will assist 
with more efficient administration of the Title VI Program. We have 
added information relating to when a complaint will be administratively 
closed. FTA seeks comment on the content of this chapter.

J. Appendices

    The proposed appendices are intended as tools to assist recipients 
in their compliance efforts. We propose adding nearly 40 pages of 
appendices in order to provide more clarity and examples of what should 
be included in a Title VI Program and the type of analysis that 
recipients should conduct. To begin, in Appendix A we propose using 
checklists for the elements recipients must include in their Title VI 
Programs instead of tables. Recipients can literally ``check the box'' 
as they assemble the elements of their Title VI Program.
    Appendices B, C and D contain sample procedures and forms that 
recipients may use as provided, or that they may modify. Appendix B 
contains a sample Title VI Notice to the public. Appendix C contains a 
sample Title VI complaint procedure, and Appendix D contains a sample 
Title VI Complaint Form. All of these documents are ``vital documents'' 
for LEP purposes, and each appendix provides information about 
providing the information in other languages as appropriate.
    Appendix E provides a sample form recipients may use for tracking 
transit-related Title VI investigations, lawsuits and complaints. 
Appendix F contains a sample table depicting the racial breakdown of 
the membership of various non-elected decisionmaking bodies.
    Appendix G contains samples for reporting service standards 
(vehicle load, vehicle headway, on-time performance, service 
availability) and Appendix H contains samples for reporting service 
policies (vehicle assignment and transit amenities). For the service 
standards for vehicle load and vehicle headway, we have provided two 
methods of expressing the standard: in writing and in table format. 
Recipients should provide both the

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written description and the table when they submit the information in 
their Title VI Program. The service standards for on-time performance 
and service available, as well as the service policies, require a 
written explanation only.
    Appendix I provides sample demographic and service profile maps and 
charts. Appendix J provides information on reporting the requirement to 
monitor transit service. The appendix provides tables and maps as 
examples of how to assess the performance of service on minority and 
non-minority transit routes for each of the recipient's service 
standards and service policies. In addition, this appendix provides a 
sample methodology to determine the minority and/or low-income 
populations served by each bus and rail line and provides a framework 
for comparison. The appendix provides sample tables and written 
explanations for each of the service standards and policies. These 
tables are examples of what recipients should submit with their Title 
VI Programs. Unless requested to verify the information, FTA does not 
need the raw data generated through the monitoring process.
    Appendix K provides checklists for a major service change policy, 
the analysis, the considerations for a service equity analysis, and 
considerations for a fare equity analysis. Use of these checklists will 
assist transit providers in ensuring they have met the requirements of 
analyzing major service changes and fare changes.
    Appendix L provides information on the various types of recipients 
and the reporting requirements for each type of recipient. There are 
five flow charts that provide a pictorial representation of the 
reporting requirements. Appendix M is Chapter VI of the EJ Circular: 
Understanding the Similarities and Differences Between Title VI and 
Environmental Justice. Finally, Appendix N contains the same content as 
Appendix D in the current Circular. This appendix provides technical 
assistance resources for Title VI and Limited English Proficiency.
    FTA seeks comment on the appendices and seeks suggestions for other 
resources that should be included.

    Issued in Washington, DC this 26th day of September, 2011.
Peter Rogoff,
Administrator.
[FR Doc. 2011-25122 Filed 9-28-11; 8:45 am]
BILLING CODE 4910-57-P