[Federal Register: February 14, 2005 (Volume 70, Number 29)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 303
[Docket No. FMCSA-2002-13248]
Title VI Regulations for Federal Motor Carrier Safety
Administration Financial Assistance Recipients
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Interim Final Rule (IFR); request for comments.
SUMMARY: FMCSA issues this Interim Final Rule (IFR) to clarify and
modify the applicability of certain Federal Highway Administration
(FHWA) and Departmental Title VI provisions that implement Title VI of
the Civil Rights Act of 1964, and related nondiscrimination statutes,
as they apply to FMCSA Federal financial assistance recipients. The
"savings provision" of section 106(b) of the Motor Carrier Safety
Improvement Act of 1999 provides the opportunity for this clarification
and modification. As part of this initiative, FMCSA establishes a new
Part 303 under 49 CFR chapter III, Subchapter A, for future FMCSA Title
VI implementing regulations and any future guidelines on Title VI
This IFR will provide FMCSA with initial guidelines and procedures
for implementing its Title VI procedures. This will be done by
continuing to apply and use the Departmental umbrella Title VI
regulations in 49 CFR part 21 to any program or activity for which
Federal financial assistance is authorized under a law administered by
FMCSA. FMCSA will remain subject to those Title VI requirements at the
Departmental level, and will develop as needed further guidelines and
procedures in accordance with the law to assure effective and
consistent implementation for financially assisted recipients. FMCSA
also removes itself from the FHWA Title VI regulations set forth at 23
CFR part 200, because they are not appropriate for FMCSA programs and
activities. Doing so will avoid any potential confusion while not
altering the substantive Title VI obligations of FMCSA and its
DATES: This Interim Final Rule is effective March 16, 2005. We must
receive your comments by April 15, 2005.
ADDRESSES: You may submit comments identified by the FMCSA docket
number and/or Regulatory Identification Number (RIN) of this interim
rule by any one of the following methods:
Comments submitted by mail, in person, or Fax.
U.S. Department of Transportation, Docket Management System (DMS)
Facility, 400 Seventh Street, SW., Plaza Level, Washington, DC 20590;
or FAX (202) 493-2251. You may examine the FMCSA docket, including any
comments we have received, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
Comments filed electronically.
DMS Web site at http://dms.dot.gov; or Federal eRulemaking Portal at http://www.regulations.gov. Follow
instructions for submitting your comments.
Please be aware that anyone is able to search the electronic form
of all comments received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
by on behalf of an association, business, labor union, etc.). You may
review DOT's complete Privacy Act Statement published in the Federal
Register on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov.
Waiver of General Notice of Proposed Rulemaking
FMCSA is issuing this Interim Final Rule (IFR) without prior notice
and opportunity for comment pursuant to the Administrative Procedure
Act (5 U.S.C. 553(b)). This provision allows an agency to issue a final
rule without notice and opportunity to comment when the agency for good
cause finds that notice and comment procedures are impracticable,
unnecessary, or contrary to the public interest. This IFR clarifies the
Title VI authorities covering FMCSA programs by deleting references
specific to only FHWA programs and by stating specifically the
applicability of the Department-wide Title VI regulations to FMCSA.
Doing so will avoid any potential confusion while not altering the
substantive Title VI obligations of FMCSA and its grantees. Under these
circumstances, FMCSA has determined that an opportunity for notice is
unnecessary, impracticable, or contrary to the public interest. We will
respond to any comments we receive, and will amend the IFR if comments
warrant any changes.
FOR FURTHER INFORMATION CONTACT: Ms. Carmen Sevier, (202) 366-4330,
Office of Civil Rights (MC-CR), FMCSA, 400 Seventh Street, SW.,
Washington, DC 20590; Carmen.Sevier@fmcsa.dot.gov. Office hours are
from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, except Federal
In early October 1999, Congress prohibited the FHWA from spending
appropriated funds to carry out the motor carrier safety functions and
operations of its former Office of Motor Carrier and Highway Safety,
unless the Secretary of Transportation (Secretary) redelegated that
authority outside of the FHWA (see Pub. L. 106-69, 113 Stat. 986, at
1022 (October 9, 1999)). Thereafter, the Department created the Office
of Motor Carrier Safety (OMCS) within DOT to carry out the duties and
powers related to motor carrier safety vested in the Secretary.
On December 9, 1999, the President signed the Motor Carrier Safety
Improvement Act of 1999 (MCSIA) (Pub. L. 105-159, 113 Stat. 1748).
MCSIA created a new modal administration within the DOT--the Federal
Motor Carrier Safety Administration--and transferred certain motor
carrier safety and related responsibilities from the former OMCS to
FMCSA. The FMCSA is charged with enforcing motor carrier safety
requirements previously enforced by OMCS and its predecessors.
To accommodate the organizational change, the Office of the
Secretary published a final rule on January 4, 2000 (65 FR 220),
rescinding authority previously delegated to the former OMCS, and
redelegated it to the Administrator of the FMCSA beginning January 1,
2000. Prior to MCSIA, the powers and authorities transferred to the
FMCSA had been exercised by various entities within the Department,
including FHWA. To preserve actions previously taken under such powers,
section 106(b) of MCSIA contained a "savings provision." Among other
things, the savings provision preserved for FMCSA the applicability of
various rules and regulations that were applicable to its predecessor
agencies and offices. Included within such regulations are certain FHWA
nondiscrimination protections and provisions that implement Title VI of
the 1964 Civil Rights Act (42 U.S.C. 2000d, et seq., and related
nondiscrimination statutes). The FHWA regulations, located in 23 CFR
part 200, are applicable to recipients of Federal grant and cooperative
agreement aid. Those regulations, which FHWA had promulgated in 1975
and 1976, supplemented the Departmental umbrella Title VI protections
contained in 49 CFR part 21.
Title VI states that "No person in the United States shall, on the
grounds of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be otherwise subjected
to discrimination under any program or activity receiving Federal
financial assistance." In addition, Title VI and the other related
nondiscrimination statutes \1\ bar intentional discrimination, as well
as disparate impact discrimination, which is a neutral policy or
practice that has an unequal and adverse impact on protected groups.
\1\ Nondiscrimination Program Requirements
1. Title VI of the Civil Rights Act of 1964-- "No person in the
United States shall, on the grounds of race, color, or national
origin, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance."
2. Age Discrimination Act of 1975-- "No person in the United
States shall, on the basis of age be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance."
3. Section 504. Rehabilitation Act of 1973--"No qualified
handicapped person shall, solely by reason of his handicap, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity that
receives or benefits from Federal financial assistance."
4. Title IX of the Education Amendments Act of 1972 prohibits
discrimination on the basis of sex, in education and training
programs provided by recipients of Federal financial assistance.
Title IX is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or
activity receiving Federal financial assistance, whether or not such
program or activity is offered or sponsored by an educational
Applicability of FHWA Title VI Provisions to FMCSA
The FHWA regulations set forth at 23 CFR part 200 provide guidance
on how FHWA will implement its Title VI compliance and define the role
and responsibilities of State transportation agencies in ensuring
compliance with Title VI. We have reviewed those regulations in light
of FMCSA's motor carrier safety objectives as a new modal agency within
the Department. We have concluded that those FHWA regulations in 23 CFR
part 200 do not meet the needs of FMCSA Federal financial assistance
recipients. This is because FHWA non-discrimination policies and
procedures are geared toward highway planning and development, which
generally involve much larger financial commitments than programs or
activities of the FMCSA. Alternatively, the Departmental level
implementing regulations in 49 CFR part 21 specify the manner and
degree to which recipients must comply, and the basic recordkeeping
requirements necessary to meet the intent of the nondiscrimination
statutes. The Departmental regulations are broader in scope and
therefore do not involve the degree of specificity required by the FHWA
regulations. We have concluded that these broader regulations are more
appropriate for the level of financial assistance involved in FMCSA
programs or activities. For that reason, FMCSA clarifies and modifies
the applicability of the FHWA Title VI provisions, and the Departmental
level provisions, as they apply to FMCSA.
Programs or Activities
Under this interim rule, FMCSA Federal financial assistance
recipients must comply with the Title VI regulations in 49 CFR part 21
for FMCSA-only programs or activities. As noted above, FMCSA believes
the less cumbersome but equally effective Departmental provisions
better accommodate the interests of State agencies and other recipients
by providing them with more streamlined Title VI procedures than those
established in 23 CFR part 200. FMCSA established a new Part 303 in 49
CFR chapter III, Subchapter A, for its new Title VI implementing
regulations. This will be done by adopting the Departmental Title VI
provisions under 49 CFR part 21. FMCSA will remain subject to those
requirements, and may develop further guidelines and procedures in
accordance with the law to assure effective implementation by
For Joint or Multi-agency programs or activities, FMCSA recipients
must follow the requirements of 49 CFR part 21 unless an agreement is
reached by the Federal funding agencies for the recipients to use those
Title VI procedures of the Federal lead agency.\2\
\2\ The Federal lead agency is the agency that provides the most
overall funding to the recipient.
FMCSA has carefully weighed the benefits to be gained by clarifying
and modifying Title VI regulations applicable to the agency. By taking
the agency out from under FHWA Title VI regulations, this action will
likely increase grant and cooperative agreement participation levels
for FMCSA programs or activities by simplifying reporting requirements.
The FHWA Federal-aid programs or activities tend to be much more costly
than the FMCSA financially assisted programs or activities. It will
also lower administrative costs for grantees in carrying out their
Title VI responsibilities. FMCSA will continue to apply and use the
adequate Title VI protections under the Departmental umbrella
regulations at 49 CFR part 21.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
This Interim Final Rule (IFR) is considered a non-significant
regulatory action within both the meaning of Executive Order 12866 and
the Department of Transportation's regulatory policies and procedures.
We anticipate that the economic impact of this IFR will be negligible,
because all FMCSA Federal financial assistance recipients are currently
complying with the requirements of Title VI. In fact, we have
determined that there probably will be no cost impacts, because this
IFR merely clarifies and modifies the applicability of certain Title VI
provisions of the FHWA and of the Department as they concern FMCSA's
Federal financial assistance recipients under the motor carrier safety
program. This IFR also establishes a new Part 303 in 49 CFR chapter
III, Subchapter A, to provide FMCSA with new Title VI implementing
regulations, as well as any further procedures for ensuring compliance
with Title VI. This has been done by adopting the Department's
longstanding Title VI regulations at 49 CFR part 21. Thus, no
regulatory analysis or evaluation accompanies this IFR. We invite
comments from the public, however, to assess any potential costs or
burdens that may be associated with this IFR.
Regulatory Flexibility Act
FMCSA has evaluated the effects of this rule on small entities in
accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), as
amended by the Small Business Regulatory Enforcement Fairness Act. By
taking itself out from under the FHWA's Title VI reporting and
procedural requirements, because they are not appropriate for the level
of financial assistance in FMCSA's programs, the agency will ease the
compliance standards for Title VI by all prospective FMCSA Federal-aid
recipients. The IFR thus may have a limited, positive economic impact
on small entities, among others. Accordingly, FMCSA certifies that this
action will not have a significant economic impact on a substantial
number of small entities.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
L. 104-4; 2 U.S.C. 1532, et seq.) requires Federal agencies to assess
the effects of its regulatory actions on State, local, or tribal
governments, or on the private sector. Any agency promulgating a
proposed or final rule likely to result in a Federal mandate requiring
expenditures by State, local, or tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year must
prepare a written assessment of the costs, benefits, and other effects.
In any event, regulations implementing civil rights requirements are
explicitly excluded from unfunded mandates consideration. Thus, FMCSA
has determined that this IFR will not have an annual impact of $100
million or more.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 dated August 4, 1999. We
have determined that this action will not have a substantial direct
effect on, or sufficient federalism implications for the States, nor
will it limit the policymaking discretion of the States. Nothing in
this IFR directly preempts any State law or regulation.
Executive Order 13175 (Consultation and Coordination With Indian Tribal
FMCSA has analyzed this action in accordance with the principles
and criteria in Executive Order 13175, dated November 6, 2000. We
believe this action will not significantly or uniquely affect the
communities of Indian tribal governments and will not impose
substantial direct compliance costs. Accordingly, Executive Order 13175
does not apply to this IFR.
Executive Order 13211 (Energy Supply, Distribution, or Use)
FMCSA has analyzed this IFR under Executive Order 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). It is a procedural action, is not
economically significant, and will not likely have significant adverse
effect on the supply, distribution, or use of energy.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. We have determined
that this IFR will not contain an information collection requirement
for purposes of the PRA.
Executive Order 12988 (Civil Justice Reform)
This action meets the applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
Executive Order 13045, "Protection of Children from Environmental
Health Risks and Safety Risks" (April 23, 1997) has special
requirements that apply to certain rules that are economically
significant under E.O. 12866. This IFR is not economically significant.
Accordingly, Executive Order 13045 does not apply to this IFR.
Executive Order 12630 (Taking of Private Property)
This IFR does not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217 Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities apply to this program.
Executive Order 13166 (Limited English Proficiency)
Executive Order 13166, "Improving Access to Services for Persons
With Limited English Proficiency" (LEP) applies to Federally assisted
programs. It requires each Federal agency to examine the services it
provides and develop reasonable measures to ensure that persons seeking
government services but limited in their English proficiency can
meaningfully access these services consistent with, and without unduly
burdening, the fundamental mission of the agency.
Its purpose is to clarify for Federal-fund recipients the
reasonable steps those recipients should take to ensure that its
programs or activities are meaningfully accessible to individuals who
are LEP. To this end, the Executive Order on LEP requires each Federal
agency to provide guidance on Federal financial assistance to ensure
that the recipients' programs or activities are meaningfully
In developing its Title VI program, the agency will explore whether
additional outreach to LEP individuals is
appropriate. FMCSA will be operating under DOT LEP guidance. Thus, this
IFR complies with the principles enunciated in the Executive Order.
National Environmental Policy Act
This IFR is categorically excluded from environmental studies under
paragraph 6.a. of the FMCSA Environmental Order 5610.1C dated March 1,
2004 (69 FR 9680). This IFR merely clarifies and modifies FMCSA's Title
VI program, the applicability of both the FHWA's and the Department's
Title VI provisions, and establishes a new part in 49 CFR chapter III,
Subchapter A, for civil rights matters.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in spring and fall of each year. The RIN located in the heading of this
document is used to cross-reference this action with the Unified
List of Subjects in 49 CFR Part 303
Civil Rights, Implementation and review procedures, Title VI
compliance program, Title VI program and related statutes,
Based on the foregoing, FMCSA adds a new Part 303 for Civil Rights
under 49 CFR chapter III, Subchapter A, to read as follows:
PART 303--CIVIL RIGHTS
303.3 Application of this part.
Authority: Public Law 105-159, 113 Stat. 1748, Title I, sections
107(a) and 106 (Dec. 9, 1999) (49 U.S.C. 113); 42 U.S.C. 2000d, et
seq.; and 49 CFR 1.73.
Sec. 303.1 Purpose.
The purpose of this part is to provide guidelines and procedures
for implementing the Federal Motor Carrier Safety Administration's
(FMCSA) Title VI program under Title VI of the Civil Rights Act of 1964
and related civil rights laws and regulations. For FMCSA-only programs
or activities, Federal financial assistance recipients or grantees will
continue to apply and use the Departmental Title VI provisions at 49
CFR part 21. For joint and multi-agency programs/projects, FMCSA
Federal assistance recipients or grantees must use the Title VI
requirements at 49 CFR part 21, unless agreement is reached by the
Federal funding agencies for the recipients to use the Title VI
procedures of another agency.
Sec. 303.3 Application of this part.
The provisions of this part are applicable to all elements of the
FMCSA and to any program or activity for which Federal financial
assistance is authorized under a law administered by the FMCSA. This
part provides Title VI guidelines for State Departments of
Transportation and local State agencies, including their sub-
recipients, to implement Title VI. It also applies to money paid,
property transferred, or other Federal financial assistance extended
under any program of the FMCSA after the date of this part.
Issued on: February 7, 2005.
Annette M. Sandberg,
[FR Doc. 05-2768 Filed 2-11-05; 8:45 am]