Rule2026-11790
Rescinding Portions of Department of Transportation's Title VI Regulations To Conform More Closely With the Statutory Text and To Implement Executive Order 14281
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 11, 2026
Effective
June 11, 2026
Issuing agencies
Transportation Department
Abstract
By this rule, the U.S. Department of Transportation amends its regulations implementing Title VI of the Civil Rights Act of 1964 ("Title VI") to eliminate disparate-impact liability. These amendments align the Department's regulations with Title VI's original public meaning, avoid constitutional concerns, reduce compliance costs, and serve the public interest. In addition, these revisions implement changes directed in Executive Order 14281. These revisions also align with changes made by the U.S. Department of Justice (DOJ) to its Title VI Regulations at 28 CFR part 42, effective December 10, 2025.
Full Text
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<title>Federal Register, Volume 91 Issue 112 (Thursday, June 11, 2026)</title>
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[Federal Register Volume 91, Number 112 (Thursday, June 11, 2026)]
[Rules and Regulations]
[Pages 35424-35432]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-11790]
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DEPARTMENT OF TRANSPORTATION
49 CFR Part 21
RIN 2105-AF45
Rescinding Portions of Department of Transportation's Title VI
Regulations To Conform More Closely With the Statutory Text and To
Implement Executive Order 14281
AGENCY: Office of the Secretary of Transportation (OST), U.S.
Department of Transportation (DOT or Department).
ACTION: Final rule.
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SUMMARY: By this rule, the U.S. Department of Transportation amends its
regulations implementing Title VI of the Civil Rights Act of 1964
(``Title VI'') to eliminate disparate-impact liability. These
amendments align the Department's regulations with Title VI's original
public meaning, avoid constitutional concerns, reduce compliance costs,
and serve the public interest. In addition, these revisions implement
changes directed in Executive Order 14281. These revisions also align
with changes made by the U.S. Department of Justice (DOJ) to its Title
VI Regulations at 28 CFR part 42, effective December 10, 2025.
DATES: The rule is effective on June 11, 2026.
FOR FURTHER INFORMATION CONTACT: Sean Clayton, Acting Director, Office
of Civil Rights, at 202-366-7632.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
The Department is rescinding portions of its Title VI implementing
regulations to align with the language that Congress enacted in Title
VI prohibiting intentionally discriminatory conduct, pursuant to Title
VI, 42 U.S.C. 2000d-1. See 42 U.S.C. 2000d. There are serious statutory
and constitutional concerns with the legality of the Department's Title
VI regulations, which go beyond intentional discrimination by
prohibiting conduct that has an unintentional disparate impact. This
rule accordingly rescinds those portions of the regulations that
prohibit conduct having a disparate impact, which are in considerable
tension with both the statute and the Constitution and do not serve the
public interest. First, this rule rescinds the full text of 49 CFR
21.5(b)(2), which prohibits the use of ``criteria or methods of
administration which have the effect of subjecting persons to
discrimination because of their race, color, or national origin, or
have the effect of defeating or substantially impairing accomplishment
of the objectives of the program with respect to individuals of a
particular race, color, or national origin.'' Second, this rule removes
the two uses of the phrase ``or effect'' from 49 CFR 21.5(b)(3). Third,
this rule rescinds the full text of 49 CFR 21.5(b)(7), which authorizes
affirmative action even in the absence of a finding of prior
discrimination in a program or activity ``to assure that no person is
excluded from participation in or denied the benefits of the program or
activity.'' Fourth, this rule removes one sentence regarding
affirmative action from 49 CFR 21.5(c)(1) and rescinds the full text of
49 CFR 21.5(c)(3), which addresses employment practices subject to
Federal financial assistance. Fifth, this rule removes the phrases ``or
its effect when made'' and ``or its effect when made will'' from 49 CFR
21.5(d).
The rule's revisions also conform to Executive Order 14281,
Restoring Equality of Opportunity and Meritocracy, 90 FR 17537 (Apr.
23, 2025). That Order states that ``[i]t is the policy of the United
States to eliminate the use of disparate-impact liability in all
contexts to the maximum degree possible to avoid violating the
Constitution, Federal civil rights laws, and basic American ideals.''
Id. at 17537. Although the Department, in consultation with the
Department of Justice (DOJ), would take this action independently of
Executive Order 14281, Executive Order 14281 supports this action.
This rule makes clear that the Department's Title VI regulations
prohibit only intentional discrimination, not conduct or activities
that have a disparate impact. The Department thus will not take action
under Title VI premised on disparate-impact liability.
II. Discussion
A. Statutory History of Title VI
Title VI of the Civil Rights Act of 1964, as amended, provides:
``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.
Title VI also directs Federal departments and agencies that extend
Federal financial assistance to ``effectuate the provisions of'' Title
VI ``by issuing rules, regulations, or orders of general
applicability.'' 42 U.S.C. 2000d-1. The section of Title VI that sets
forth the prohibited conduct, 42 U.S.C. 2000d, prohibits intentional
discrimination and makes no reference to unintentional disparate
effects or impact. See Alexander v. Sandoval, 532 U.S. 275, 280 (2001)
(``[I]t is . . . beyond dispute--and no party disagrees--that Sec. 601
[of Title VI] prohibits only intentional discrimination.''). The
statute does not explicitly provide any Federal department or agency
with authority to prohibit conduct having an unintentional disparate
impact. And despite having ample opportunities, Congress has enacted no
subsequent amendments to Title VI to impose disparate-impact liability.
B. Regulatory History of Title VI
Pursuant to Executive Order 12250, ``[t]he Attorney General . . .
coordinates the implementation and enforcement by Executive agencies of
. . . Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et
seq.).'' 45 FR 72995, 72995 (Nov. 2, 1980). Accordingly, DOJ is
primarily responsible for defining the nature and scope of Title VI's
prohibition of discrimination on the basis of race, color, and national
origin in programs or activities receiving Federal financial
assistance. Executive Order 12250 directs DOJ, among other things, to
``develop standards and procedures for taking enforcement actions and
for conducting investigations and compliance reviews.'' Id. Further, as
part of this responsibility, Executive Order 12250 provides that other
agencies' regulations implementing Title VI are subject to the
[[Page 35425]]
Attorney General's approval. Id. at 72996.
DOJ's Title VI regulations are codified at 28 CFR 42.101, 42.112.
The then-Department of Health, Education, and Welfare issued the
initial set of model regulations for Title VI on December 4, 1964,
which included only one reference to the ``effect of'' language in the
``discrimination prohibited'' provision of the rule. See 29 FR 16298,
16299 (Dec. 4, 1964) (codified at 45 CFR 80.3(b)(2)). DOJ adopted these
model regulations in 1966, which likewise contained a single instance
of the ``or effect'' language at 28 CFR 42.104(b)(2). 31 FR 10265,
10266 (July 29, 1966). In 1973, DOJ substantively amended its
regulatory description of prohibited discrimination. See 38 FR 17955
(July 5, 1973). These substantive changes included, among other things,
the addition of 28 CFR 42.104(b)(3) (adding the ``or effect'' language
to an additional provision), 28 CFR 42.104(b)(6) (introducing the
``affirmative action'' language to the regulations), and 28 CFR
42.104(c)(2) (extending the rule to Federal financial assistance whose
primary objective is not to provide employment). Id. at 17955. In 2003,
the Department added language regarding ``program or activity'' to
reflect the amendment of Title VI by the Civil Rights Restoration Act
of 1987. See 68 FR 51334, 51364 (Aug. 26, 2003); Public Law 100-259,
sec. 6, 102 Stat. 28, 31 (1988). Prior to its recent amendment, see 90
FR 57141 (Dec. 10, 2025), DOJ's regulation describing the scope of
prohibited discriminatory conduct, 28 CFR 42.104, included prohibitions
on conduct that had an unintentional disparate impact, discussed more
fully below.
DOT's initial Title VI regulations at 49 CFR part 21 followed DOJ's
model, taking effect on June 18, 1970. 35 FR 10080 (June 18, 1970). The
initial regulations included the ``or effect'' language that exists in
the current regulation. Id. In 1973, DOT amended its regulation to
incorporate affirmative-action liability into 49 CFR 21.5(b)(7). 38 FR
17997 (July 5, 1973). In 2003, DOT added language regarding ``program
or activity'' to reflect the amendment of Title VI by the Civil Rights
Restoration Act of 1987 and further revised the affirmative action
provision in 49 CFR 21.5(b)(7).
C. Relevant Supreme Court Decisions
The Supreme Court has held that Title VI does not prohibit facially
neutral policies that result in disparate outcomes when there is no
discriminatory intent. Rather, it prohibits only intentional
discrimination. In 1978, five years after the Department last
substantively amended its Title VI regulations, the Supreme Court held
that Congress intended Title VI to prohibit ``only those racial
classifications that would violate the Equal Protection Clause'' if
committed by a government actor. Regents of the Univ. of Cal. v. Bakke,
438 U.S. 265, 287 (1978) (Powell, J., announcing the judgment of the
Court); id. at 325, 328, 352-53 (Brennan, White, Marshall, and
Blackmun, JJ., concurring in part and dissenting in part); see also
Students for Fair Admissions, Inc. v. President & Fellows of Harvard
Coll., 600 U.S. 181, 198 n.2 (2023) (``SFFA''). Shortly before Bakke's
Title VI holding, the Supreme Court held that the Equal Protection
Clause prohibits only intentional discrimination and that ``a law or
other official act'' that has a ``racially disproportionate impact''
alone does not violate that Clause. Washington v. Davis, 426 U.S. 229,
239 (1976); see also Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 265 (1977) (``Proof of racially discriminatory
intent or purpose is required to show a violation of the Equal
Protection Clause.''). Taken together, these Supreme Court cases
establish that Title VI's statutory prohibition, like the Equal
Protection Clause, extends only to intentional discrimination.
In 2001, the Supreme Court, in Alexander v. Sandoval, reaffirmed
that settled understanding. 532 U.S. at 280 (``[I]t is . . . beyond
dispute . . . that Sec. 601 [of Title VI] prohibits only intentional
discrimination.''). In Sandoval, the Supreme Court held that private
plaintiffs lacked a private right of action to enforce DOJ's
``disparate-impact regulations.'' Id. at 285-87. Although the Supreme
Court had previously found a private cause of action to enforce Title
VI's bar on intentional discrimination, id. at 279-80, that conclusion
did not extend to enforcing DOJ's ``disparate-impact regulations.'' Id.
at 285. As the Supreme Court explained, it is ``clear'' that ``the
disparate-impact regulations do not simply apply'' the statutory
prohibition, as the regulations ``forbid conduct that [Title VI]
permits,'' so it is equally ``clear that the private right of action to
enforce [Title VI] does not include a private right to enforce these
regulations.'' Id. While the Supreme Court in Sandoval ``assume[d],''
without deciding, that DOJ's disparate-impact regulations were valid,
the Court explained that the then-current version of the regulations
were in ``considerable tension'' with the Supreme Court's Title VI
precedents. Id. at 282. Similarly, the regulations did not
``authoritatively'' construe Title VI because the regulations ``forbid
conduct''--namely, policies that unintentionally result in a disparate
impact--that Title VI ``permits.'' Id. at 281-82, 284-85; see also id.
at 286 n.6 (``[Title VI] permits the very behavior that the regulations
forbid.''). The Court has not ruled specifically on DOT's Title VI
regulations.
Finally, in 2024, the Supreme Court overruled Chevron U.S.A. Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). See Loper Bright
Enters. v. Raimondo, 603 U.S. 369, 409-12 (2024). In reaching that
result, the Supreme Court made clear that ``statutes . . . have a
single, best meaning'' that is `` `fixed at the time of enactment.' ''
Id. at 400 (quoting Wis. Cent. Ltd. v. United States, 585 U.S. 274, 284
(2018)). Thus, Title VI's bar on discrimination can have only one
meaning. And under Supreme Court precedent, the single, best meaning of
Title VI is that it ``prohibits only intentional discrimination'' and
``permits'' facially neutral policies that result in disparate outcomes
so long as there is no discriminatory intent. Sandoval, 532 U.S. at
280, 286 n.6.
D. Executive Order 14281
On April 23, 2025, the President issued Executive Order 14281. This
Order restated the ``bedrock principle of the United States . . . that
all citizens are treated equally under the law.'' 90 FR at 17537. The
Order explained that this ``principle guarantees equality of
opportunity, not equal outcomes,'' and ``promises that people are
treated as individuals, not components of a particular race or group.''
Id.
That Order also explained that disparate-impact liability
``endangers this foundational principle.'' Id. Disparate-impact
liability, the Order reasoned, ``all but requires individuals and
businesses to consider race and engage in racial balancing to avoid
potentially crippling legal liability.'' Id. As the Order explained,
disparate-impact liability ``not only undermines our national values,
but also runs contrary to equal protection under the law and,
therefore, violates our Constitution.'' Id.
The Order relayed that, because of these problems, ``[i]t is the
policy of the United States to eliminate the use of disparate-impact
liability in all contexts to the maximum degree possible to avoid
violating the Constitution, Federal civil rights laws, and basic
American ideals.'' Id. Accordingly, this rule revises DOT's currently
existing Title VI
[[Page 35426]]
regulations, consistent with the Order's purpose.
In any event, DOT would have independently initiated steps toward
making these changes regardless of Executive Order 14281. Even if
Executive Order 14281 did not exist, in other words, the Department
would have taken steps to adopt the policy to eliminate the use of
disparate-impact liability under Title VI. The Order states, and the
Department firmly agrees, that a ``bedrock principle of the United
States is that all citizens are treated equally under the law. This
principle guarantees equality of opportunity, not equal outcomes. It
promises that people are treated as individuals, not components of a
particular race or group. It encourages meritocracy and a colorblind
society,'' not race-, color-, or national-origin-based favoritism. 90
FR at 17537. And adherence to this principle, including in the issuance
of grants, ``is essential to creating opportunity, encouraging
achievement, and sustaining the American Dream.'' Id.
Imposing disparate-impact liability endangers these policy
objectives. Disparate-impact liability also raises serious
constitutional concerns, is in considerable tension with the original
public meaning of Title VI, creates confusion, increases the costs of
compliance, and does not serve the public interest. In addition, DOT's
Title VI regulations have always substantively mirrored DOJ's
regulations, and DOJ's recent amendments to its Title VI regulations
support these changes to the DOT regulations.
After considering the relevant issues and factors and weighing the
relevant considerations, the Department concludes that these reasons
support eliminating disparate-impact liability from the Department's
Title VI regulations. In any event, the Department concludes that each
reason is a separate and independent basis for eliminating disparate-
impact liability from the Department's Title VI regulations.
E. Need for Rulemaking
The Department's regulation at 49 CFR 21.5, titled ``Discrimination
prohibited,'' contains several provisions that go beyond the statutory
text and constitutional requirements by prohibiting facially neutral
policies that have a disparate impact and in some instances encourage
or even require unlawful discrimination labeled as ``affirmative
action.'' Section 21.5(b)(2) is the current regulation's general
disparate-impact prohibition, which states that a ``recipient . . . may
not . . . utilize criteria or methods of administration which have the
effect of subjecting persons to discrimination because of their race,
color, or national origin, or have the effect of defeating or
substantially impairing accomplishment of the objectives of the program
with respect to individuals of a particular race, color, or national
origin.'' 49 CFR 21.5(b)(2).
Beyond that general prohibition, section 21.5(b)(3) addresses a
Federal funding recipient's selection of the site or location of
facilities and includes two references to ``effect'' that extend the
scope of prohibited conduct to include conduct with unintentional
disparate impact. Id. 21.5(b)(3). Section 21.5(b)(7) concerns the use
of ``affirmative action'' and provides that funding recipients may (and
sometimes must) use race, color, or national origin to overcome
unintentional disparate ``effects.'' But this provision does not
expressly specify that the funding recipient must narrowly tailor such
use nor that this use must serve a compelling governmental interest, as
is required to satisfy strict scrutiny. Id. 21.5(b)(7). Section
21.5(c)(1) includes additional language regarding affirmative action.
Id. 21.5(c)(1). Section 21.5(c)(3) addresses prohibited discriminatory
employment practices and extends beyond intentional discrimination by
prohibiting conduct that ``tends'' to have a discriminatory effect. Id.
21.5(c)(3). Section 21.5(d) provides that funding recipients may not
select a site or location for a facility if the purpose or effect of
that selection is to discriminate on the grounds of race, color, or
national origin. Id. 21.5(d).
There are serious statutory and constitutional concerns with the
legality of the Department's Title VI disparate-impact regulations. The
Department also has serious policy concerns with its current disparate-
impact regulations because they create confusion, undermine public
confidence in the Nation's civil rights laws and the rule of law, and
produce burdensome litigation and compliance costs.
1. Serious Legal Concerns
There are serious statutory concerns as to whether the Title VI
statute authorizes the disparate-impact provisions of the current
regulations. As the Supreme Court has made clear, Title VI prohibits
``only intentional discrimination'' and ``permits'' facially neutral
policies that result in disparate outcomes when there is no
discriminatory intent. Sandoval, 532 U.S. at 280, 286 n.6. That is the
``single, best meaning'' of Title VI. Loper Bright, 603 U.S. at 400.
Sandoval calls into serious doubt the legality of DOJ's former
``disparate-impact regulations.'' Sandoval, 532 U.S. at 281-82, 284-85
(noting that the DOJ regulations were in ``considerable tension'' with
the Supreme Court's Title VI precedents); see also id. at 286 n.6
(``[Title VI] permits the very behavior that the regulations forbid.'')
Although Sandoval resolved only the question of private
enforceability, subsequent cases such as Loper Bright have made clear
that agencies cannot extend Title VI beyond its original public
meaning. See 603 U.S. at 412-13 (holding that ``courts must . . .
ensur[e] that [an] agency acts within'' its statutory authority). The
same goes for DOT's Title VI regulations. Sandoval and Loper Bright
thus also call into question the legality of DOT's Title VI disparate-
impact regulations, even though the Court has not ruled specifically on
DOT's Title VI regulations. And even in the absence of Supreme Court
precedent, the Department would have concluded that the best reading of
Title VI is that it prohibits only intentional discrimination, not
unintentional disparate outcomes.
Title VI authorizes agencies to promulgate regulations ``to
effectuate'' the statute's prohibition of intentional discrimination.
42 U.S.C. 2000d-1. The current regulations' extension of prohibited
conduct to include conduct with an unintentional disparate impact
reaches a vastly broader scope than the statute itself. This scope is
too broad to be considered a simple prophylactic measure aimed at
preventing intentional discrimination. See Sandoval, 532 U.S. at 286
n.6 (``[Title VI] permits the very behavior that the regulations
forbid.''). Thus, the disparate-impact regulations do not
``effectuate'' Title VI. 42 U.S.C. 2000d-1.
There are also serious concerns about whether the Department's
Title VI regulations pass constitutional muster under the Equal
Protection Clause. As the Supreme Court recently held in SFFA, ``the
Equal Protection Clause . . . applies without regard to any differences
of race, of color, or of nationality--it is universal in its
application'' and the ``guarantee of equal protection cannot mean one
thing when applied to one individual and something else when applied to
a person of another color.'' 600 U.S. at 206 (internal quotation marks
omitted) (first quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886);
and then quoting Bakke, 438 U.S. at 289-90 (Powell, J.)). Despite the
promises of the Equal Protection Clause, a funding recipient's
[[Page 35427]]
risk of disparate-impact liability under DOT's regulations is triggered
by unintentional disparate outcomes, which the recipient may not even
know about without investigation. To evaluate and avoid this risk, the
funding recipient must incur investigatory costs, such as conducting an
impact analysis, and is coerced to consider race, color, and national
origin proactively and potentially use it to change the unintended
disparate outcomes.
In short, disparate-impact liability encourages, and in some cases
requires, covered entities to engage in the intentional use of race and
racial balancing to eliminate disparate outcomes by treating certain
racial groups differently from others--the exact conduct the Equal
Protection Clause forbids. See id. The serious constitutional concerns
raised by these perverse incentives further confirm that the best
reading of Title VI is that it prohibits only intentional
discrimination and does not authorize DOT to impose disparate-impact
liability. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988) (``[W]here an
otherwise acceptable construction of a statute would raise serious
constitutional problems, the Court will construe the statute to avoid
such problems unless such construction is plainly contrary to the
intent of Congress.'' (citing NLRB v. Catholic Bishop of Chi., 440 U.S.
490, 499-501, 504 (1979))).
This encouraged or coerced use of race, color, or national origin
violates the Equal Protection Clause unless it survives review under
the ``daunting'' strict-scrutiny standard. SFFA, 600 U.S. at 206; see
also Free Speech Coal., Inc. v. Paxton, 145 S. Ct. 2291, 2310 (2025)
(``Strict scrutiny--which requires a restriction to be the least
restrictive means of achieving a compelling governmental interest--is
`the most demanding test known to constitutional law.' '') (quoting
City of Boerne v. Flores, 521 U.S. 507, 534 (1997)). The use of race,
color, or national origin necessitated by the disparate-impact
provisions runs into serious issues with the requirement of narrow
tailoring to achieve a compelling interest. SFFA, 600 U.S. at 206-07.
Similarly, the ``affirmative action'' provisions authorize and
sometimes require the intentional use of race without requiring that
this intentional use be narrowly tailored to serve a recognized
compelling interest. Instead, it encourages intentional racial
balancing ``to overcome the effects of'' unintended racial disparities.
49 CFR 21.5(b)(7), (c)(1). Thus, for substantially the same reasons as
above, the ``affirmative action'' provision raises serious
constitutional concerns.
As summarized above, there are serious statutory and constitutional
concerns with DOT's disparate-impact regulations. But even if the
regulations were consistent with the statute, the Department finds that
eliminating the potential constitutional concerns addressed above would
independently justify the amendment of the regulations. Cf. U.S. Tel.
Ass'n v. FCC, 188 F.3d 521, 528 (D.C. Cir. 1999) (concluding it was not
``arbitrary and capricious'' to adopt a certain policy in order to
``avoid[ ] raising a non-trivial constitutional question''). And even
if the regulations did not raise serious constitutional concerns, the
Department finds that eliminating the costs and confusion caused by the
mismatch between the statute and the disparate-impact regulations would
independently justify the repeal of the regulations.
2. Serious Policy Concerns
The Department also has serious policy concerns with the imposition
of disparate-impact liability. While the Department expresses its
policy concerns with disparate-impact liability independent of
Executive Order 14281, that Order sets forth many valid policy concerns
with disparate-impact liability. As noted in Section 1 of the Order,
On a practical level, disparate impact liability has hindered
businesses from making hiring and other employment decisions based on
merit and skill, their needs, or the needs of their customers because
of the specter that such a process might lead to disparate outcomes,
and thus disparate impact lawsuits. Disparate impact liability has made
it difficult, and in some cases impossible, for employers to use bona
fide job-oriented evaluations when recruiting, which prevents job
seekers from being paired with jobs to which their skills are most
suited--in other words, it deprives them of opportunities for success.
90 FR at 17537. Moreover, the legal concerns identified above have
caused uncertainty and confusion for Federal financial assistance
recipients as to whether and when they need to comply with the
disparate-impact regulations and when they can or must consider race,
color, and national origin. As explained above, Sandoval casts
substantial doubt on the validity of the disparate-impact regulations
that many Federal departments and agencies, including DOT, have
promulgated pursuant to Title VI. 532 U.S. at 280-82.
In addition, in practice and as explained above, disparate-impact
liability leads covered entities to engage in racial balancing even as
Title VI forbids intentional racial discrimination. This tension tends
to create confusion and undermine public confidence in the Nation's
civil rights laws and in the rule of law itself, as the law seems to
both forbid and require the same conduct.
These problems are amplified by the arbitrary nature of the racial
and ethnic categories typically used to measure disparate effects,
which, by virtue of their arbitrariness, typically lack a meaningful
connection to a compelling interest. See, e.g., SFFA, 600 U.S. at 216-
17 (explaining that the ``[racial] categories'' utilized by Harvard and
University of North Carolina were ``themselves imprecise in many ways''
and ``the use of these opaque racial categories undermine[d], instead
of promote[d], [their] goals''). The Department believes these policy
concerns independently justify repealing certain parts of its
regulation to cure this confusion, remove the incentive for covered
entities to engage in racial balancing, and maintain clarity and public
confidence in the Nation's civil rights laws.
The Department has considered the view that looking at disparate
effects can sometimes be useful in uncovering or deterring subtle
intentional discrimination or intentional indifference to unnecessary
and arbitrary barriers. But that view's alleged benefits are outweighed
by the other issues and factors the Department has considered. And in
any event, the concern is mitigated by the fact that eliminating
disparate-impact liability does not preclude the use of data on
disparate outcomes to help prove intentional discrimination. Indeed,
the current changes do not alter the Department's Title VI regulations
insofar as they provide 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.'' 49 CFR 21.9(b). Both the Department and private
litigants rely on such data as a potential indicator of intentional
discrimination. This use of statistical disparity to help establish, as
an evidentiary matter, liability for intentional discrimination
materially differs from using it to impose liability for an
unintentional disparate impact. This regulatory revision does not
affect the Department's authority to collect and use such data to help
prove intentional discrimination.
[[Page 35428]]
The Department has also considered the alternative of trying to
adopt a modified version of disparate-impact liability, for example, by
requiring covered entities to remedy unintentional discrimination for
only certain types of cases in highways and transit. But any version of
imposing liability for unintentional discrimination is inconsistent
with Title VI's original public meaning. Regardless, even a modified
version of disparate-impact liability would not eliminate the
Department's serious legal and policy concerns. The Department
determines that any benefits from adopting alternative versions of
disparate-impact liability are outweighed by the Department's legal and
policy concerns. And even if possible, developing such a rule would not
solve the confusion or rule-of-law concerns expressed above, nor reduce
the compliance and litigation costs that covered entities face. The
Department believes that the better course is to avoid the
complexities, costs, and litigation associated with this alternative,
even if eliminating disparate-impact liability would ultimately leave
some problems unaddressed and others inadequately addressed.
The Department has also considered the potential reliance interests
of financial-assistance recipients and others on the disparate-impact
regulations. These interests may include personnel or contracting
actions taken by DOT recipients that were taken, either in whole or in
part, based on the need to assess and mitigate potential disparate
impacts in their programs and projects. Sandoval, however, cast serious
doubt on the continuing viability of the regulations more than 20 years
ago. Executive Order 14281 directed all agencies to ``deprioritize
enforcement of all statutes and regulations to the extent they include
disparate-impact liability.'' 90 FR at 17538. The Department
accordingly believes that any reliance interests should be minimal and
do not outweigh the Department's legal and other policy concerns.
Further, each of the Department's concerns, whether considered
cumulatively or separately, outweighs any reliance interests.
The Department notes that Sandoval has also led to a divergence
between Title VI enforcement by private plaintiffs and enforcement by
Federal departments and agencies. After Sandoval, private plaintiffs
can enforce only Title VI's statutory prohibition on intentional
discrimination, while the Department of Justice, on behalf of Federal
agencies, including DOT, could continue to pursue disparate-impact
liability. Repealing the disparate-impact regulations eliminates this
incongruent enforcement and restore public confidence in Title VI by
aligning the Department's regulations with the Constitution.
Overall, after considering the relevant issues and factors and
weighing the relevant considerations, the Department finds, regardless
of the legality of the Department's disparate-impact regulations, that
the above summarized policy concerns, when viewed separately or
cumulatively, independently justify the repeal of its disparate-impact
regulations.
III. Regulatory Amendments
This rule's regulatory changes address the concerns regarding the
statutory authority that the Supreme Court questioned in Sandoval and
the other legal and policy concerns discussed above, harmonize the
implementing regulations' scope with the conduct that Congress intended
Title VI to prohibit, promote consistent enforcement among private
plaintiffs and Federal departments and agencies, and provide much
needed clarity to the courts and Federal financial assistance
recipients and beneficiaries.
For the reasons summarized above, the Department amends the
following provisions in its Title VI implementing regulation that
explain the particular types of discrimination prohibited, located at
49 CFR 21.5.
A. Table Summarizing Amendments
The table below indicates the exact wording changes. For each
section indicated in the left column, the text shown in the middle
column is removed and the text shown in the right column is added:
------------------------------------------------------------------------
Section Remove Add
------------------------------------------------------------------------
21.5(b)(2).............. Full text of paragraph ``[Reserved]''.
(2).
21.5(b)(3).............. ``or effect'' from both
places.
21.5(b)(7).............. Full text of paragraph
(7).
21.5(c)(1).............. ``Such recipient shall
take affirmative action
to insure that
applicants are
employed, and employees
are treated during
employment, without
regard to their race,
color, or national
origin''.
21.5(c)(3).............. Full text of paragraph
(3).
21.5(d)................. ``or its effect when
made'' and ``or its
effect when made will''.
------------------------------------------------------------------------
B. Section-by-Section Analysis
Section 21.5(b)(2)
Section 21.5(b)(2) is the current regulation's general prohibition
of conduct with unintentional disparate impact. It expands prohibited
conduct from purposeful discrimination to impose liability on
recipients of Federal funding and assistance who ``utilize criteria or
methods of administration which have the effect of subjecting persons
to discrimination.'' Because section 21.5(b)(2)'s only purpose is to
extend the scope of Title VI to reach unintentional disparate-impact
discrimination, this rule deletes this paragraph in its entirety. It
thus amends the Department's Title VI implementing regulations to
conform to the scope of coverage Congress intended when it enacted
Title VI and to address the legal and policy considerations and
determinations described in this document. The rule replaces paragraph
(b)(2) with a ``Reserved'' placeholder to maintain the numbering
accuracy of previous citations and other references to parts of this
section.
Section 21.5(b)(3)
Section 21.5(b)(3) addresses a recipient's or applicant's selection
of the site or location of facilities. It provides that a recipient may
not make selections with the ``purpose or effect'' of discriminating,
or ``with the purpose or effect of defeating or substantially impairing
the accomplishment of the objectives of'' Title VI or the Department's
implementing regulations. The paragraph's two references to ``effect''
extend its scope to unintentional disparate impacts. This rule deletes
both ``or effect'' references to conform paragraph (b)(3) to the scope
of coverage Congress intended when it enacted Title VI and to address
the legal and policy considerations and determinations described in
this document.
[[Page 35429]]
Section 21.5(b)(7)
Section 21.5(b)(7) deals with ``affirmative action.'' This section
authorizes affirmative action even in the absence of a finding of prior
discrimination in a program or activity ``to assure that no person is
excluded from participation in or denied the benefits of the program or
activity.'' It consequently encourages intentional racial
classifications, racial preferences, and other race-based actions that
run counter to the principles of the Equal Protection Clause.
Additionally, paragraph (b)(7) requires that a recipient ``take
affirmative action to remove or overcome the effects of the prior
discriminatory practice or usage'' when ``prior discriminatory practice
or usage tends, on the grounds of race, color, or national origin to
exclude individuals from participation in, to deny them the benefits
of, or to subject them to discrimination under any program or
activity.'' This provision goes beyond the Equal Protection Clause,
which permits in limited circumstances, but does not mandate, a
government to take narrowly tailored action to remedy the effects of
its identified past discrimination. See, e.g., Bakke, 438 U.S. at 307
(Powell, J.). Moreover, even putting aside the mandatory language, this
provision does not expressly require narrow tailoring to counter the
particular past discrimination, but rather simply ``affirmative
action'' to ``overcome the effects'' of prior discrimination. This
provision accordingly promotes potentially illegal race, color, and
national origin discrimination. Moreover, in some instances, it may
even coerce recipients to consider and use race preferences when the
recipient does not want to. This is detrimental to the Department's
goal of promoting and defending a culture of nondiscrimination and is
destructive to the public's understanding of and faith in the Nation's
civil rights laws. This rule, therefore, removes paragraph (b)(7) to
address the legal and policy considerations and determinations
described in this document.
Section 21.5(c)(1)
Section 21.5(c)(1) addresses prohibited discriminatory employment
practices. Paragraph (c)(1) prohibits intentionally discriminatory
employment practices in a program when a primary objective of the
Federal funding or assistance that program receives is to provide
employment. This paragraph also includes one sentence regarding
``affirmative action'' that recipients must take: ``Such recipient
shall take affirmative action to insure that applicants are employed,
and employees are treated during employment, without regard to their
race, color, or national origin.'' While this use of ``affirmative
action'' language may not raise the same legal concerns given its
directive ``without regard to their race, color, or national origin,''
this rule removes this sentence to avoid potential confusion, while the
rest of the paragraph will remain, consistent with the DOJ regulation.
Section 21.5(c)(3)
Section 21.5(c)(3) extends the prohibition on discrimination to
employment practices of the recipient even ``where a primary objective
of the Federal financial assistance is not to provide employment'' if
discrimination in the non-funded ``employment practices of the
recipient or other persons subject to the regulation tends, on the
grounds of race, color, or national origin, to exclude individuals from
participation in, to deny them the benefits of, or to subject them to
discrimination under any program to which this regulation applies.''
This paragraph does not prohibit only intentional discrimination but
rather extends the prohibition to conduct that ``tends'' to have a
discriminatory effect.
Moreover, the Department notes that paragraph (c)(3)'s extension to
employment practices where the Federal funding's primary objective is
not to provide employment explicitly conflicts with the statutory
limitation found in 42 U.S.C. 2000d-3. That section states that
``[n]othing contained in [Title VI] shall be construed to authorize
action under [Title VI] by any department or agency with respect to any
employment practice of any employer, employment agency, or labor
organization except where a primary objective of the Federal financial
assistance is to provide employment.'' 42 U.S.C. 2000d-3; see also
Johnson v. Transp. Agency, Santa Clara Cnty., 480 U.S. 616, 627-28 n.6
(1987) (citing the statutory limitation and noting Congress's intent
that Title VI not ``impinge'' on Title VII, which prohibits
discriminatory employment practices). The rule deletes paragraph (c)(3)
so that the regulation more closely adheres to Title VI, which
addresses the legal and policy considerations and determinations
described in this document.
IV. Severability
The Department's position is that each of the amendments serve a
vital, related, but distinct purpose. The Department also confirms that
each of the amendments is intended to operate independently of each
other and that the potential invalidity of one amendment should not
affect the other amendments. The Department would adopt any of the
amendments independently of the invalidity of a separate amendment.
V. Regulatory Analyses and Notices
Administrative Procedure Act
The Department issues this final rule without prior public notice
and comment or a delayed effective date pursuant to the Administrative
Procedure Act's exception for rules ``relating to agency management or
personnel or to public property, loans, grants, benefits, or
contracts.'' 5 U.S.C. 553(a)(2).
Title VI concerns non-discrimination conditions on the receipt of
Federal financial assistance, and more particularly to the receipt of
Federal ``[g]rants and loans,'' ``property,'' ``personnel'' and ``[a]ny
Federal agreement, arrangement, or other contract which has as one of
its purposes the provision of assistance.'' 49 CFR 21.23(c); see also
49 CFR 21.7 (requiring funding recipient sign contractual assurance of
compliance with Title VI); Cummings v. Premier Rehab Keller, P.L.L.C.,
596 U.S. 212, 217-18 (2022) (observing that Congress enacted Title VI
``[p]ursuant to its authority to `fix the terms on which it shall
disburse federal money' '' (internal citation omitted)). Cf. Education
Programs or Activities Receiving or Benefitting from Federal Financial
Assistance, 82 FR 46655, 46655 (Oct. 6, 2017) (invoking the section
553(a)(2) exception to amend Title IX regulations to ``promote
consistency in the enforcement of Title IX for [the Department of
Agriculture] financial assistance recipients''); Preserving Community
and Neighborhood Choice, 85 FR 47899 (Aug. 7, 2020) (invoking the
exception to repeal Housing and Urban Development rule regarding
Federal grantees); Participation by Minority Business Enterprise in
Department of Transportation Programs, 53 FR 18285 (May 23, 1988)
(invoking the exception to expand coverage of Department of
Transportation regulation regarding Federal Aviation Administration's
airport financial assistance program); Nondiscrimination on the Basis
of Handicap in Federally Assisted Programs--Suspension of Guidelines
with Respect to Mass Transportation, 46 FR 40687 (Aug. 11, 1981)
(invoking the exception to suspend Department of
[[Page 35430]]
Justice guidelines regarding prohibiting disability discrimination in
transportation programs and activities receiving Federal financial
assistance).
Indeed, invoking 5 U.S.C. 553(a)(2) is consistent with the Office
for Management and Budget's (OMB) definition for ``Federal financial
assistance'' under 2 CFR 200.1, which defines ``Federal financial
assistance'' with the same categories as the Administrative Procedure
Act's exception for rules ``relating to agency management or personnel
or to public property, loans, grants, benefits, or contracts,'' 5
U.S.C. 553(a)(2). With potentially limited exceptions not applicable to
the Department, all the forms of Federal financial assistance set forth
under 2 CFR 200.1 that the Department administers would fall under the
``public property, loans, grants, benefits, or contracts'' exception.
Thus, the Department issues this final rule without prior public notice
and comment or a delayed effective date under 5 U.S.C. 553(a)(2).
Executive Orders 12866 and 13563 (Regulatory Review) and DOT Order
2100.6B
The Department has determined that this rulemaking is a
``significant regulatory action'' under Section 3(f) of Executive Order
12866, 58 FR 51735, 51738 (Sep. 30, 1993) and DOT Order 2100.6B (Mar.
10, 2025),\1\ but it is not an ``economically significant'' action.
---------------------------------------------------------------------------
\1\ Available at: <a href="https://www.transportation.gov/regulations/dot-order-21006b-policies-and-procedures-rulemakings">https://www.transportation.gov/regulations/dot-order-21006b-policies-and-procedures-rulemakings</a>.
---------------------------------------------------------------------------
This regulation has been drafted and reviewed in accordance with
Executive Order 12866 Section 1(b), 58 FR at 51735, and in accordance
with Executive Order 13563 Section 1(b), 76 FR 3821, 3821 (Jan. 18,
2011), which supplements and reaffirms the principles of Executive
Order 12866. Executive Order 12866 directs agencies to assess all costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits.
58 FR at 51735; 76 FR at 3821. Executive Order 13563 also recognizes
that some benefits and costs are difficult to quantify and provides,
where appropriate and permitted by law, that agencies may consider and
discuss qualitatively values that are difficult or impossible to
quantify. Id.
As explained in the preamble, the regulatory modifications this
rule makes are necessary to conform Department regulations to Executive
Order 14281, address serious concerns regarding the Department's Title
VI regulation that the Supreme Court raised in Sandoval, harmonize the
implementing regulation with Title VI, promote consistency in
enforcement among private plaintiffs and Federal departments and
agencies, and provide much needed clarity to courts and the recipients
and beneficiaries of Federal funding and assistance. Indeed, with
respect to 49 CFR 21.5, the changes are clearly necessary to bring the
regulations into compliance with 42 U.S.C. 2000d-3. In short, this rule
is necessary to conform the Department's regulation to existing
statutory law, as interpreted by the U.S. Supreme Court.
Data limitations make the costs and benefits of the rule difficult
to quantify. Title VI attaches to any recipient of Federal funds, and
DOT awarded grants to approximately 3,600 recipients from fiscal year
(FY) 2021 through 2025. During this time period, DOT announced
approximately $466.7 billion in grants; of that total, approximately
$118.0 billion was awarded as part of approximately 13,600
discretionary grants, and approximately $348.7 billion was awarded in
formula grants. In FY2025 alone, DOT issued over 3,500 discretionary
grant awards, to over 1,160 unique recipients, for total discretionary
awards of approximately $22.5 billion. In FY2025, DOT also announced
approximately $71.2 billion in formula grant awards.
Specific to its Title VI program, DOT opened approximately 330
Title VI complaints between 2021 and 2025. DOT does not have reliable
tracking information regarding the number of compliance reviews related
to Title VI or disparate-impact discrimination during the period of
2021 through 2025. The Department does not track which of its
complaints involved allegations of disparate-impact discrimination, or
which of its compliance reviews contained criteria related to
disparate-impact discrimination. Consequently, the Department cannot
reliably quantify the costs attributable to the varying disparate-
impact portions of complaint investigations, compliance reviews, or
enforcement actions. Furthermore, that the existence of a disparate
impact is sometimes a factor that may be considered in determining
whether discrimination was intentional further impedes monetizing costs
and benefits.
In addition, at least one DOT operating administration has regular
Title VI program submission requirements for its recipients that are
related to disparate impact. The Federal Transit Administration (FTA),
in FTA Circular 4702.1B, requires that the following to be included in
recipients' triennial Title VI Program submissions: facility siting
equity analysis, system-wide service monitoring and service and fare
equity analyses (for fixed-route transit providers), State investments
analyses (for State departments of transportation), and metropolitan
planning organization (MPO) investment analyses (for MPOs). FTA
estimates the total annual burden of the Title VI program submission is
45 hours for each of the 100 larger transit entities, and with more
specific Title VI program submission requirements, including the
disparate impact-related submissions, the total is approximately 4,500
hours of work by recipient staff each year. However, FTA and DOT do not
maintain data regarding the cost or burden for these specific
disparate-impact-related requirements within the Title VI Program
submissions.
Therefore, the overall cost effect on the Department is difficult
to quantify. This deregulatory action should decrease the Department's
enforcement costs as a result of fewer and less in-depth compliance
reviews and complaint investigations. Although it is difficult to
quantify, this deregulatory action will also have the benefit of
bringing the Department's conduct in line with the law. The Department
is also unable to quantify how funding recipients will respond to the
regulatory changes. In addition, with the reduction of the Department's
enforcement of Title VI as it applies to disparate-impact liability,
the deregulatory action should result in lower compliance costs for
recipients, including shorter program submissions that no longer need
to include items such as disparate-impact policies and
disproportionate-burden policies.
The Department recognizes that a recipient may receive additional
Federal funds or assistance from sources other than the Department. The
Department does not envision that this rule will appreciably increase
administrative costs or compliance costs for funding recipients who
must also adhere to the regulations of another department or agency.
This deregulatory action does not create any new obligations for its
recipients. On the contrary, by eliminating disparate-impact liability
from the regulation, it eliminates a source of regulatory confusion,
narrows the conduct prohibited, and thus lessens the costs of
compliance and potential liability. Moreover, recipients who receive
funds for the same program or activity from more than one Federal
entity already enter into separate contractual assurances with each
funding entity, see, e.g., 49 CFR 21.7. These contractual assurances
already
[[Page 35431]]
impose varying requirements that each Federal funding source deems
necessary. Funding recipients will continue to be held to the most
stringent contractual assurance and regulation.
Based on the analysis of the practical qualitative costs and
benefits noted above, the Department believes this rule is consistent
with the principles of Executive Orders 12866 and 13563, including the
requirements, to the extent permitted by law, that the Department adopt
a regulation only upon a reasoned determination that its benefits
justify its costs and choose a regulatory approach that maximizes net
benefits. See 58 FR at 51735; 76 FR at 3821.
Executive Order 14192 (Unleashing Prosperity Through Deregulation)
This final rule is expected to be an Executive Order 14192
deregulatory action. This rule eliminates unnecessary regulation by
revising the Department's current Title VI regulations, which extend
prohibited conduct to include unintentional disparate impacts and thus
expand the scope of those regulations to a vastly broader range of
conduct than the statute prohibits. Details on the estimated cost
savings of this final rule can be found in the rule's economic analysis
provided above.
Executive Order 13132 (Federalism)
This rule will not have a substantial, direct effect on the
relationship between the national government and the States, on
distribution of power and responsibilities among various levels of
government, or on States' policymaking discretion. States that choose
to receive Federal financial assistance from the Department do so
voluntarily and agree to comply with relevant statutory requirements as
a condition of receiving such funding. This rule does not subject
States or any other funding recipients or beneficiaries to new
obligations. This rule amends and clarifies existing regulations that
are required by statute. Therefore, in accordance with Section 6 of
Executive Order 13132, 64 FR 43255, 43257-58 (Aug. 4, 1999), the
Department has determined these amendments do not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et seq.)
requires agencies to evaluate the potential effects of their proposed
and final rules on small businesses, small organizations, and small
governmental jurisdictions. Whenever an agency is required by 5 U.S.C.
553, or any other law, to publish general notice of proposed rulemaking
for any proposed rule, the agency must conduct and publish for public
comment a regulatory flexibility analysis. Because the Department is
not required to publish a proposed rulemaking for this action, an
analysis under the RFA is not required.
Further, the Department, in accordance with 5 U.S.C. 605(b), has
reviewed these regulations and certifies that the rule's changes will
not have a significant economic impact on a substantial number of small
entities, in large part because these regulatory changes do not impose
any new substantive obligations on Federal funding recipients. The rule
amends and clarifies existing regulations that are required by Title
VI. The rule merely brings the Department into compliance with the
Equal Protection Clause and harmonizes the scope of its regulations to
conform with the scope of Title VI, which does not prohibit conduct
having an unintentional disparate impact. All Federal funding
recipients have been bound by the existing standards that will remain
in place after this rule since their initial promulgation.
Executive Order 12250
Pursuant to Executive Order 12250, the Department of Justice has
the responsibility to ``review . . . proposed rules . . . of the
Executive agencies'' implementing nondiscrimination statutes such as
Title VI in order to identify those which are inadequate, unclear or
unnecessarily inconsistent.'' Additionally, Executive Order 12250
delegated the President's responsibility to approve Title VI
regulations to the Attorney General. See 42 U.S.C. 2000d-1. The
Department of Justice has reviewed and approved this rule.
National Environmental Policy Act
The Department has analyzed the environmental impacts of this
action pursuant to the National Environmental Policy Act of 1969 (NEPA)
(42 U.S.C. 4321 et seq.) and has determined that it is categorically
excluded pursuant to DOT Order 5610.1D, available at <a href="https://www.transportation.gov/mission/dots-procedures-considering-environmental-impacts">https://www.transportation.gov/mission/dots-procedures-considering-environmental-impacts</a>. Categorical exclusions are actions identified in
an agency's NEPA implementing procedures that do not normally have a
significant impact on the environment and therefore do not require
either an environmental assessment (EA) or environmental impact
statement (EIS). The purpose of this rulemaking is to eliminate
disparate-impact liability. Section 9(f) of DOT Order 5610.1D states
that a DOT Operating Administration can use the categorical exclusions
developed by another Operating Administration. This action is covered
by the categorical exclusion listed in the Federal Transit
Administration's implementing procedures, ``[p]lanning and
administrative activities that do not involve or lead directly to
construction, such as: . . . promulgation of rules, regulations,
directives. . . .'' 23 CFR 771.118(c)(4). In analyzing the
applicability of a categorical exclusion, the agency must also consider
whether extraordinary circumstances are present that would warrant the
preparation of an EA or EIS. The Department does not anticipate any
environmental impacts, and there are no extraordinary circumstances
present in connection with this rulemaking.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (``UMRA''), 2 U.S.C. 1501
et seq., requires agencies to prepare several analytic statements
before proposing any rule that may result in annual expenditures of
$100 million by State, local, or Tribal governments, or the private
sector. 2 U.S.C. 1532(a). The UMRA also, however, excludes from its
coverage any proposed or final Federal regulation that ``establishes or
enforces any statutory rights that prohibit discrimination on the basis
of race, color, religion, sex, national origin, age, handicap, or
disability.'' 2 U.S.C. 1503(2). Accordingly, this rulemaking is not
subject to the provisions of the UMRA.
Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this rule is not a ``major rule'' as defined by the Congressional
Review Act, 5 U.S.C. 804(2).
Paperwork Reduction Act of 1995
This rule will not impose additional reporting or recordkeeping
requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
et seq.
List of Subjects for 49 CFR Part 21
Administrative practice and procedure, Civil rights, Equal
employment opportunity, Grant programs.
Accordingly, for the reasons set forth above, and by the authority
vested in me as the Secretary of Transportation, part 21 of title 49 of
the Code of Federal Regulations is amended as follows:
[[Page 35432]]
PART 21--NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE
DEPARTMENT OF TRANSPORTATION--EFFECTUATION OF TITLE VI OF THE CIVIL
RIGHTS ACT OF 1964
0
1. The authority citation for part 21 is revised to read as follows:
Authority: 42 U.S.C. 2000d, 2000d-1, 2000d-7; E.O. 12250, 45 FR
72995, 3 CFR, 1980 Comp., p. 298; E.O. 14281, 90 FR 17537.
0
2. In Sec. 21.5:
0
a. Remove and reserve paragraph (b)(2);
0
b. Revise paragraph (b)(3);
0
c. Remove paragraph (b)(7); and
0
d. Revise paragraphs (c) and (d).
The revisions read as follows:
Sec. 21.5 Discrimination prohibited.
* * * * *
(b) * * *
(3) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose of excluding
persons from, denying them the benefits of, or subjecting them to
discrimination under any program to which this regulation applies, on
the grounds of race, color, or national origin; or with the purpose of
defeating or substantially impairing the accomplishment of the
objectives of the Act or this part.
* * * * *
(c) Employment practices. (1) Where a primary objective of the
Federal financial assistance to a program to which this part applies is
to provide employment, a recipient or other party subject to this part
shall not, directly or through contractual or other arrangements,
subject a person to discrimination on the ground of race, color, or
national origin in its employment practices under such program
(including recruitment or recruitment advertising, hiring, firing,
upgrading, promotion, demotion, transfer, layoff, termination, rates of
pay or other forms of compensation or benefits, selection for training
or apprenticeship, use of facilities, and treatment of employees).
(2) Federal financial assistance to programs under laws funded or
administered by the Department that have as a primary objective the
providing of employment include those set forth in appendix B to this
part.
(d) Selection of site or location. A recipient may not make a
selection of a site or location of a facility if the purpose of that
selection is to exclude individuals from participation in, to deny them
the benefits of, or to subject them to discrimination under any program
or activity to which this rule applies, on the grounds of race, color,
or national origin; or if the purpose is to substantially impair the
accomplishment of the objectives of this part.
Issued in Washington, DC.
Sean P. Duffy,
Secretary of Transportation.
[FR Doc. 2026-11790 Filed 6-10-26; 8:45 am]
BILLING CODE 4910-9X-P
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