Title VI/Nondiscrimination
Annual Accomplishments Report and Work Plan
Prepared By:
MassDOT Office of Diversity and Civil Rights
December 3, 2012
Contents
Civil Rights Office Organization And Responsibilities ............................................................................................3
Internal Monitoring Program ....................................................................................................................................5
External Monitoring Program.................................................................................................................................. 17
Title VI/Nondiscrimination Training Summary ..................................................................................................... 22
Title VI/Nondiscrimination Complaints Summary ................................................................................................ 24
Special Emphasis Areas ............................................................................................................................................ 25
Environmental Justice ............................................................................................................................................... 27
Limited English Proficiency...................................................................................................................................... 28
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CIVIL RIGHTS OFFICE ORGANIZATION AND RESPONSIBILITIES
Title VI/Nondiscrimination Component
The Office of Diversity and Civil Rights (ODCR) is responsible for ensuring that MassDOT
fulfills its Title VI/Nondiscrimination obligations through effective management of this Title
VI/Nondiscrimination Program. ODCR also ensures that MassDOT meets its obligations and
commitments on equal opportunity and affirmative action in employment and contracting and
within programs and activities. The Massachusetts Department of Transportation’s (MassDOT)
focus on diversity in its programs is based on the simple premise that its transportation services
and workforce should mirror the diverse populations they serve.
At MassDOT, the Chief Diversity and Civil Rights Officer serves as the Title VI Coordinator. In
this capacity, the Chief Diversity and Civil Rights Officer reports directly to the Secretary/CEO
of MassDOT on overall state and federal civil rights obligations and to the MassDOT
Administrator of Rail and Transit on civil rights matters concerning FTA-funded programs.
The Manager of Federal Programs reports to the Chief Diversity and Civil Rights Officer and
supervises the Title VI Specialist, who is charged with the responsibility of implementing,
monitoring, and ensuring MassDOT’s compliance with Title VI regulations in terms of both the
day-to-day administration and the annual reporting obligations of MassDOT’s Title
VI/Nondiscrimination Program. The Manager of Federal Programs is a senior leader within
MassDOT and will focus on the following efforts to manage the development and
implementation of the Title VI/Nondiscrimination Program:
•
Provide technical assistance and advice on Title VI/Nondiscrimination matters to
Department program officials
•
Supervise the conduct of Title VI/Nondiscrimination reviews on special emphasis
program areas and activities when necessary to cover aspects not covered through the day
to day approach
•
Investigate complex Title VI/Nondiscrimination complaints and prepare reports of
findings and conclusions and make recommendations
•
Interact with MassDOT program managers in developing Title VI/Nondiscrimination
information for dissemination to the public
•
Interact with other Civil Rights program personnel in the review of Title
VI/Nondiscrimination activities and issues
•
Develop and implement the processing of discrimination complaints pursuant to Title
VI/Nondiscrimination
•
Work with the Title VI Specialist and program managers to resolve problems identified
as discriminatory practices and policies, pursuant to Title VI/Nondiscrimination
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•
Oversee MassDOT’s subrecipients’ implementation of Title VI/Nondiscrimination
activities and compliance monitoring
•
Establish procedures to resolve noncompliance determinations
•
Coordinate Title VI/Nondiscrimination training programs
•
Supervise the preparation of an annual report summarizing all Title VI/Nondiscrimination
activities, accomplishments, complaints, and future plans
•
Update the Title VI/Nondiscrimination Compliance Program as necessary to reflect
changes in organization, policy, or implementation
•
Increase public/community awareness of Title VI/Nondiscrimination
•
Develop and update Title VI/nondiscrimination information for dissemination to the
public and, where appropriate, in languages other than English
Under the direction of the Manager of Federal Programs, the Title VI Specialist manages all
elements of MassDOT’s commitment and obligations to prohibit discrimination. The Title
VI/Nondiscrimination Program covers the requirements, procedures, actions, and sanctions
through which MassDOT enforces Title VI and related nondiscrimination statutes, Executive
Orders, and regulations. The program is designed to ensure that discrimination does not occur in
connection with programs or activities that benefit from the federal funding that MassDOT
receives.
The Title VI Specialist is responsible for developing, implementing, coordinating, and
monitoring MassDOT’s Title VI/Nondiscrimination Program and ensuring MassDOT’s
compliance with Title VI regulations in terms of the day-to-day administration and annual
reporting requirements of Title VI. The Title VI Specialist:
•
Assists in the preparation and issuance of information within MassDOT on FHWA Title
VI requirements, guidelines, and program directives and ensures that all department
managers and subrecipients are informed of FHWA Title VI requirements
•
Provides technical assistance, guidance, and advice on the MassDOT Title
VI/Nondiscrimination Program
•
Conducts Title VI/Nondiscrimination compliance reviews through the collection and
analysis of statistical data to determine the effectiveness of program activities, prepares
reports on those reviews, and establishes procedures to resolve determinations of
noncompliance
•
Conducts complaint intakes, investigates discrimination complaints, and prepares reports
and recommendations based on investigatory findings
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•
Maintains liaison relationships and works cooperatively with upper-level administrators,
managers, and program personnel across all agency functions on Title
VI/Nondiscrimination compliance and develops Title VI training for MassDOT officials,
employees, and subrecipients
•
Conducts Title VI/Nondiscrimination training programs
•
Develops Title VI/Nondiscrimination–related information for dissemination to the
general public, including, where appropriate, information in languages other than English
•
Prepares and submits annual MassDOT Title VI/Nondiscrimination Accomplishments
Report and Work Plan to FHWA
•
Updates the Title VI/Nondiscrimination Program and related plans as necessary to reflect
organizational, policy, or implementation changes
The Title VI Coordinator, Federal Program Manager, and Title VI Specialist are supported by
Title VI Liaisons from each federal program area within MassDOT as well as by the dedicated
staff within the Office of Diversity Civil Rights. To coordinate this work overall, MassDOT
convenes a Title VI Working Group which includes the Headquarters Title VI Liaisons and is
chaired by the Federal Program Manager and the Title VI Specialist. If needed, the Office of
Civil Rights is also able to obtain assistance from the MassDOT Enterprise Services departments
under MassDOT’s Chief Administrative Officer, which include Human Resources, Employee
Relations, Labor Relations, Payroll, and similar administrative functions.
INTERNAL MONITORING PROGRAM
Since August 7, 2012, MassDOT ODCR has been actively engaged in responding to Title
VI/Nondiscrimination program implementation deficiency findings as noted as part of an FHWA
Title VI/Nondiscrimination program compliance review. Fully implementing the internal
monitoring program was a primary objective of this past years Title VI/Nondiscrimination
program implementation work.
Process
Pursuant to 23 CFR 200.9(b)(5), (6), and (7), MassDOT is required to implement a Title
VI/Nondiscrimination Compliance Monitoring Program for both its own and its subrecipients’
programs and activities. The purpose of compliance monitoring is to evaluate whether or not
MassDOT and its subrecipients are meeting their respective nondiscrimination obligations. The
monitoring process provides an opportunity to identify deficiencies and corrective actions to
bring programs and activities into compliance with the terms of this Title VI/Nondiscrimination
Program.
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MassDOT is required to perform the following Title VI/Nondiscrimination program-monitoring
activities:
•
Develop a program to conduct Title VI/Nondiscrimination compliance reviews of
Program Areas
•
Conduct an annual Title VI/Nondiscrimination review of the program areas to determine
the effectiveness of nondiscrimination activities at all levels
•
Conduct Title VI reviews of subrecipients (e.g., MPOs, colleges and universities, and
local public agencies)
The Title VI Specialist, as directed by the Federal Program Manager and with the support of the
Title VI Liaisons, has the primary responsibility for monitoring implementation of the Title VI
program and ensuring compliance. MassDOT’s monitoring program includes observation and
documentation of processes and analyses of statistical data. In partnership with the Title VI
Liaisons, the Title VI Specialist will conduct process reviews of program-area activities and
review and analyze statistical data to identify Title VI implications.
In accordance with 23 CFR 200.9(b)(1), MassDOT’s Title VI Specialist is responsible for
initiating and monitoring Title VI activities. Each Title VI Liaison is responsible for working
with the Title VI Specialist to establish and implement strategies for eliminating potential
discrimination in their areas and to develop procedures for collecting and analyzing data that can
be used to monitor compliance.
Should any of the programs or activities present a pattern of discrimination, the Title VI
Specialist will work with the Title VI Liaison to identify and implement corrective actions after
consultation with the Title VI Program Manager and/or Title VI Coordinator, if needed.
Internal Reviews Conducted in 2012
During FFY 2012, ODCR conducted internal reviews of Right-of-Way (ROW), Planning,
Environmental Services, Design, Procurement, and the Office of Real Estate and Asset
Development. The internal reviews allowed ODCR staff to get a clear picture of what activities
take place in each unit that may have Title VI/Nondiscrimination implications. The information
gleaned from these reviews is being used to update documents in order to satisfy Title
VI/Nondiscrimination obligations, to start collecting data on the protected classes MassDOT is
impacting, to develop and establish specific protocols for data collection and analysis, and to
formulate training modules that will be tailored to MassDOT processes.
Right of Way –
Right-of-Way has the potential to impact the most customers and members of the public from a
Department of Transportation standpoint. In the Commonwealth of Massachusetts, this is
especially true due to the obligation to use eminent domain for takings of real property and
interests in constructing transportation projects. It was therefore logical that the first internal
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review conducted for Title VI purposes and implications initiate in the Right-of-Way office. The
goal of the internal review was to assess what programs, activities and services were generated
out of this office, what data was being captured (if any) on the demographics of those impacted,
and the documentation used. After meeting with the Director of Right-of-Way to lay out the
intent, interviews with Right-of-Way staff were conducted. All sections within the Office were
covered, including: Projects, Negotiation, Acquisition, Appraisals, Conveyance, Relocation, and
Project Management. Through these conversations, other activities were identified that required
follow up interviews with supplemental staff: Finance, Community Compliance, and Head
Appraiser. It was also through the interview with Property Management that the Office of Real
Estate and Asset Development (OREAD) was identified as the unit responsible for all leasing
agreements for MassDOT. This led ODCR to include OREAD in this round of internal program
area assessments. A detailed description of that process is catalogued below.
Due to the magnitude of Title VI implications in the ROW unit, ODCR has devoted significant
attention and energy into the development of a collaborative relationship to ensure that Title VI
issues are addressed. As ODCR prepared to conduct these internal program area assessments, it
was envisioned that each assessment would end with an exit interview with department heads to
present findings and recommendations. In the midst of the ROW assessment, it became clear that
the effort to ensure compliance with Title VI was going to require more collaboration, proposal
development, and technical assistance than could be achieved through a single exit interview.
The meeting between ODCR and the head of ROW that was originally intended to be the exit
interview was used instead as an opportunity to build and develop the collaborative relationship
between the units. ODCR is currently developing a work plan with ROW that will establish a
format for identifying and addressing the issues that will ensure ROW compliance with Title VI
principles. ODCR is optimistic about the potential these types of relationships present for Title
VI program implementation.
Environmental –
During the internal review of Environmental Services, the following staff members were
interviewed in order to assess the Title VI implications of the programs, activities, and services
within the Office: the Director, the project manager who is the Title VI Liaison for the federal
program area, and two representatives from the NEPA/MEPA section.
Overwhelmingly, most projects constructed by MassDOT are not major projects and not subject
to the NEPA/MEPA process. The roughly 5% of projects that are considered major projects must
undergo the NEPA/MEPA process that involves an Environmental Assessment (EA). Most
projects are Categorically Excluded (Cat Ex), meaning there are no adverse effects as a result of
the project. When a project is not Cat Ex, an Environmental Impact Statement (EIS) is drafted
and submitted to FHWA for review and approval. The Office of Environmental Services must
sign off on a project in order for it to proceed to the 25% design public hearing.
Up until now, the only consideration of Title VI populations in the Environmental process has
been an assessment of Environmental Justice (EJ) data. During our conversation with the staff
identified, ODCR explained the difference between EJ and Title VI protected classes and
explained that an analysis from a Title VI/Nondiscrimination perspective should be conducted.
Environmental Services staff expressed great interest in aiding ODCR in compiling the data and
overlaying it on to the geo-coded projects that have been constructed. This effort will require
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coordination between ODCR, Environmental Services and the Office of Transportation Planning
which houses the geo-coded project locations. During the next ninety days, ODCR staff will
work with Environmental Services and OTP staff to produce a map reflecting known project
locations against Title VI protected classes within the Commonwealth of Massachusetts.
The Environmental Services unit utilizes a document known as the 25% Design Checklist (or
Early Environmental Coordination Checklist). It exists in both hardcopy and electronically.
Project developers are referred to it for information on how to navigate the Environmental
process. The Environmental Services unit assesses internal and external projects by determining
whether all components of this 25% Design Checklist have been properly addressed. The
Environmental program area assessment led to the collaborative development of a proposal to
modify the 25% Design Checklist to more explicitly reference Title VI concerns, ensuring that
Environmental Service staff look at projects through a Title VI lens. This gives Environmental
Services ample opportunity to assess the sufficiency of public outreach initiatives by those
developing transportation projects and empowers the unit to forego permitting project
proponents from advancing to later stages of project development until the early stages, with
significant Title VI implications, are satisfactorily addressed.
It has also become clear that there may be opportunities for the Office of Transportation
Planning to collaborate with Environmental, particularly on large projects, to identify potential
Title VI and other populations subject to Federal nondiscrimination requirements to provide
further depth in the Environmental process.
The Environmental program area assessment made clear that an effort is currently underway to
update and modify the Categorical Exclusion form. The new form is scheduled for roll-out in
March 2013. ODCR and Environmental are contemplating adding Title VI provisions to the
Categorical Exclusion form for the purpose of putting project managers on notice of Title VI
implications/concerns when providing CE data and conducting CE analysis.
ODCR is currently developing a work plan with Environmental that will establish a format for
identifying and addressing the issues that will ensure Environmental compliance with Title VI
principles.
Design –
During our initial conversation with the Deputy Chief Engineer for Design and the Manager of
Project Management, the units within Design were identified with the key staff were alerted to
our internal review efforts. The units identified were: Highway Design, Pavement, Survey,
Landscape Design, Plans and Records, Utilities, Project Management and Consultant Contracts.
Interviews were conducted with each staff member responsible for these activities.
Pavement, Survey, Landscape Design, Plans and Records and Utilities rely on empirical data to
drive the work. The unit with the greatest Title VI implications is Consultant Contracts. ODCR
met with the staff member identified and discussed what standard provisions are typically
included in the contract and whether adding Title VI language could be incorporated expediently.
The staff member assured ODCR staff that the language could easily be incorporated into the
future contracts once the language was delivered to him. ODCR immediately provided Appendix
A language to the staffer. ODCR will follow up within the next thirty days to ensure the
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language has been incorporated into all future consultant contracts. It was made clear to ODCR
that a revised version of these standard provisions has been proposed by Design and is currently
under review by MassDOT Legal. By the end of the deficiency response period, ODCR intends
to clarify the status of the review of these standard provisions within Legal and will ascertain the
most effective method for ensuring Title VI provision inclusion. It is worth noting that these
standard provisions require FHWA approval as well.
A tangential issue which arose from the Design program area assessment was the role which the
A&E Board plays in the availability of consultant firms for design work. The A&E board is
responsible for reaching out to and prequalifying design firms that can then be considered for
inclusion into an open-ended contract with MassDOT to have design work sent to them. Within
the next ninety days, ODCR intends to assess the outreach methodology utilized by the A&E
Board to determine the methods used for outreach to design firms and if diversifying the pool of
firms seeking prequalification is feasible.
The Design program area assessment made it clear that this unit is rarely, if ever, responsible for
direct public outreach activities. These outreach activities, when led by Design, are dictated by
Chapter 2 of the Project Development and Design Guide as well as SOP’s housed in the Project
Management unit. Finalization and implementation of the MassDOT agency-wide Public
Participation Plan will bolster the effort to ensure that public outreach is conducted in
compliance with and in furtherance of Title VI.
Lastly, through consultations with Design, ODCR was able to clarify that traffic management
plans are developed by a separate Traffic Management unit within the agency. It is ODCR’s plan
to conduct an assessment interview of this unit to determine the factors used in development of
traffic management plans and any inherent Title VI issues therein.
ODCR is currently developing a work plan with Design that will establish a format for
identifying and addressing the issues that will ensure Environmental compliance with Title VI
principles.
Planning –
The Office of Transportation Planning (OTP) oversees planning efforts conducted by
municipalities and MPOs and conducts transportation planning related research and outreach. In
the Commonwealth of Massachusetts, transportation projects are generated from the grassroots
level. Only statewide planning efforts are generated by the Office of Transportation Planning.
However, these projects are outnumbered by the projects that are municipally-driven.
This Office is broken up into a number of units: MPO Activities, GIS Services, Public/Private
Development, Research, Sustainable Transportation, Long-range Planning, and Corridor
Planning. The MPO Activities unit accounts for approximately 40% of the work in the Office.
The unit oversees the activities conducted by the Commonwealth’s MPOs. Every municipality
within the Commonwealth of Massachusetts is covered by one of 13 MPOs and the regional
planning agencies (RPA) for the islands of Nantucket and Martha’s Vineyard. Municipalities that
want a project constructed in their jurisdiction by MassDOT using federal funds must work
through their MPO in order to get on the Transportation Improvement Plan (TIP). The State
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Transportation Improvement Plan or STIP is a amalgamation of the various TIPs that are created
by the 13 MPOs.
Starting in April 2012, the Manager of MPO Activities worked to include Title VI action items
into the Unified Planning Work Plan (UPWP) that is required of each MPO to allocate staff and
resources for the upcoming federal fiscal year. This has helped to elevate the profile of Title VI
among the MPOs and aided compliance efforts.
Long-range Planning and Corridor Planning are often conducted within OTP when certain
identified triggers are met and there is funding available. These planning studies are statewide in
focus. Due to staff shortage, these planning efforts are usually contracted out. The contract is
executed via the Director of Administration within OTP.
The Sustainable Transportation unit was created under the Transportation Reform Act to address
our responsibility to reduce greenhouse gas emissions. There is potential impact on Title VI
protected classes since a score is given to projects applying for TIP consideration based on the
projected greenhouse gas emissions.
Most Research projects are contracted out to the University of Massachusetts (U.Mass) since
they have the ability to conduct the research and since they are part of the state system,
MassDOT can enter into an MOU with U.Mass instead of seeking a procurement-driven
contract, which provides some flexibility in carrying out research projects and creates the
opportunity to utilize Commonwealth resources for this work. OTP is open to considering other
universities within the Commonwealth of Massachusetts but pointed out that there are few
research universities within the state that could handle the type of work needed. There are also
no traditionally historic minority universities within the Commonwealth, although there are
minority focused research institutes within U.Mass that could be explored for possible
collaborative opportunities with more traditional transportation researchers
GIS Services is a completely internal unit to MassDOT. They provide the maps to any office
requesting data to be portrayed in a visual graphic display. The data used is most often US
Census and American Community Survey data downloaded directly from the website. The GIS
Services unit has been working in collaboration ODCR and MassDOT IT to create an interactive
online map tool of all of the languages spoken within the Commonwealth of Massachusetts as
part of the Language Access Plan under development. The Language Map Tool was created to
provide census information in a format that project managers, public and community affairs staff
and any other employees who frequently come in contact with members of the public would be
able to reference to understand the possible needs of the communities where we are providing
programs, activities and services.
The Public/Private Development unit oversees requests by private developers to impact state
highway facilities or roads. MassDOT is allowed to comment during the MEPA process as an
impacted party. MassDOT can request mitigation during this process as well. The role of this
office is to monitor and ensure compliance of the permitting process and the interest of the
agency.
In recent months, as part of its outreach efforts, OTP finalized a contract with the private
Constant Contact organization. This resource gives MassDOT access to an ever expanding
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database of contacts (including individuals, government representatives, advocacy groups, media
outlets, professional trade associations, etc.) that can be targeted for outreach. ODCR views this
as a significant opportunity to promote stakeholder involvement and increase outreach. This
effort was originally part of MassDOT - Your Vision, Our Future: A Transportation
Conversation, a series of statewide discussions to engage the public in a conversation about the
transportation system they want and what we need to do to achieve that vision. ODCR staff has
supported the development of the distribution list in order to utilize it for Title VI purposes
through the provision of its own contacts and coordination withteh MPO community. A filter
feature is being incorporated to be able to address the list to Title VI protected classes, as needed.
This year’s effort to conduct an internal assessment of the Office of Transportation Planning has
made it clear that both ODCR and OTP share Title VI oversight responsibilities when dealing
with the transportation planning process. Establishing the methods and protocols through which
ODCR and OTP will conduct these oversight activities has become a paramount concern for the
agency as this year comes to a close. A late November 2012 meeting with Secretary/CEO
Richard Davey, the head of the ODCR unit, and the head of the OTP unit is scheduled with the
objective of clarifying each unit’s role in Title VI/Nondiscrimination oversight and to begin
developing the protocols each unit will use to carry out these obligations.
ODCR has drafted a work plan with OTP that will establish a format for identifying and
addressing the issues that will ensure OTP compliance with Title VI principles.
Procurement –
ODCR staff met with the staff member identified as the vehicle procurement officer. He
provided a generic background regarding MassDOT’s procurement processes. He clarified that
MassDOT has a decentralized procurement system and sees the need for a more centralized
process. In support of Title VI compliance, he recommended identifying the staff member
responsible in each office for solicitation and to ensure the Title VI language is given directly to
them to include in the agreements. Follow up assessment activity on this issue is required.
Office of Real Estate and Asset Development –
The Office of Real Estate and Asset Development (OREAD) handles all leasing agreements on
behalf of MassDOT. ODCR staff met with the Director of the unit as well as the legal counsel
assigned to work on OREAD matters in order to assess what types of agreements are entered into
by this office and to provide Title VI language for these agreements. Both the Director and legal
counsel assured ODCR staff that the language will be added to future lease agreements. Since
then, ODCR, OREAD, and the FHWA Regional Civil Rights Specialist have been actively
engaged in putting together the necessary Title VI documents/language for inclusion in leases.
ODCR anticipates confirming the completion of this effort in the coming weeks.
ODCR is drafting a work plan with Design that will establish a format for identifying and
addressing the issues that will ensure Environmental compliance with Title VI principles.
Proposals/Protocols Developed through Internal Reviews
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The FFY 2012 internal review process allowed ODCR to develop specific proposals for
protocols to be implemented in the federal program areas to address Title VI concerns. Several of
those proposals are described below.
Fee Appraiser Demographics
The Right of Way division of a state transportation agency encounters some of the most
prominent Title VI issues. In an eminent domain state like Massachusetts, the Right of Way unit
of MassDOT is responsible for property takings associated with transportation projects. The
magnitude of this public impact is arguably unrivaled compared to the activities of other
MassDOT units. Property appraisal is an integral facet of the work done by the Right of Way
division. The unit makes use of in-house appraisers as well as contracted fee appraisers for the
production of appraisals and their review. FHWA suggests ensuring nondiscrimination in
property appraisals and utilizing a diverse pool of contractors by (1) collecting and analyzing
demographic data of fee appraisers and (2) reaching out to as broad and diverse a pool of
potential fee appraisers as practicable.
To that end, ODCR conducted a series of meetings within the Right of Way unit specifically
focused on collecting fee appraiser demographics and improving outreach. The collaboration
culminated in the decision to include a Title VI/Nondiscrimination demographics survey with the
next RFR (and all subsequent RFR’s) for fee appraisers. This will allow the agency to collect
demographic data on those fee appraisers that provide responses to RFR’s and link that data to
fee appraisers with whom a contract is ultimately entered into. A draft of the demographics
survey has already been created by ODCR. The head of the Finance unit within Right of Way
has confirmed that the next RFR is scheduled for release in November of this year and it will
include the demographics survey.
The ODCR/ROW collaboration on the issue of improving outreach remains an ongoing effort.
Several methods have been proposed to reach out to a diverse pool of potential fee appraisers
rather than simply utilizing the CommPASS RFR online posting system. These methods include
(1) physically posting RFR’s in Registry of Deeds offices throughout the state, (2) utilizing the
OTP “Constant Contacts” email list, and (3) notifying appraiser professional trade organizations.
Next Steps: By the time of the next Right of Way RFR for fee appraisers, ODCR intends to have
the demographics survey finalized and included in the proposal package. This effort is occurring
in conjunction with the inclusion of Title VI contract provisions in contracts entered into by the
Right of Way unit.
Even is the proposal to include a demographics survey in the RFR proves unworkable, a parallel
effort is underway to determine if such data is already available through the Supplier Diversity
Office.
Related Issues: During discussions with the Appraisal unit of Right of Way, it was noted that a
significant number of fee appraisers who had already entered into contracts with MassDOT
decided against attempting to renew said contracts in recent years due to the complexity of the
CommPASS system. Subsequent discussions with the Finance unit of Right of Way made note
of the fact that the state procurement office is currently contemplating revisions/updates to
CommPASS to improve ease of use.
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Right of Way Impacted Persons Demographics Survey
The direct impact of MassDOT activities on members of the public is felt acutely by those from
whom property is taken, whether permanently or temporarily. Documenting and analyzing the
demographics of these impacted persons empowers MassDOT to ensure that Right of Way plans
are neutral and do not have a disparate impact on Title VI/Nondiscrimination populations.
To support these needs, ODCR took the opportunity presented by the Right of Way program area
assessment to identify the appropriate point during the property transfer process during which to
collect demographic data of impacted persons. Discussions with representatives from the
Relocations, Projects, Negotiations, and Acquisitions sections of Right of Way identified the
Negotiation meeting as the ideal venue for demographic data collection. While the initial
outreach, done door-to-door by members of the Projects unit, is conducted temporally earlier
than the Negotiation meeting, this meeting often takes a negative or even confrontational tone as
it serves as official notification to a property owner that their property may be taken. Negotiation
meetings, on the other hand, tend to be marked by a more positive and cordial tone. It was during
this exchange that the Right of Way staff felt that impacted persons would be more amendable to
the idea of filling out a voluntary demographics survey.
ODCR has developed a draft survey. It stresses that participation is voluntary. In order to ensure
there are no financial barriers to providing this information, ODCR is currently weighing the
feasibility of making this survey a pre-addressed and pre-paid post card that impacted persons
are able to simply fill out and drop in a mailbox.
In recent months, the Right of Way unit has moved away from the use of paper documents and
towards the adoption of electronic records. ODCR’s next steps in implementing the impacted
persons demographics survey is (1) the finalization of the draft document and (2) transmission of
the final document to the Right of Way unit for incorporation into the Negotiations packet of
electronic documents. It is anticipated this effort can be completed by January 30, 2013.
Public Meeting Attendee Demographics Survey
When MassDOT conducts a public meeting or hearing, an information packet is produced and
provided to all attendees. These packets currently contain sections soliciting responses from
attendees (such as a request for written comments). Into this packet, ODCR intends to insert a
demographics survey. ODCR recognizes, however, that the collection of demographic data of
public meeting attendees is markedly different than demographic data of those actually impacted
by agency programs, services, or activities. For instance, it is conceivable that a meeting attendee
could in fact not be impacted by a MassDOT project. The value of gathering such data is seen in
MassDOT’s efforts to monitor (and improve, where appropriate) public outreach initiatives. If an
analysis of such data indicates a lack of Title VI population attendance at public meetings,
additional analysis could be warranted to determine if all available resources are being utilized to
conduct outreach and encourage participation. However, to get to such a stage of analysis, it is
first necessary to begin collecting the demographic data itself.
ODCR has created a draft of the demographic survey and has identified the public meeting
packet into which it should be included.
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Next steps: By the end of the deficiency period, ODCR intends to have identified the unit
responsible for creation and distribution of the public meeting/hearing packets. Once identified,
ODCR is prepared to provide the survey for inclusion in the materials.
Public Meeting/Hearing Transcript Review
ODCR has been devoting significant time and attention to the question of how best to be
informed of Title VI issues as they arise in the project development process. Through the
program area assessment of the Environmental unit, ODCR was informed of the inclusion of
public meeting/hearing transcripts into the ProjectInfo document repository database. The
database is maintained in such a way that project managers are automatically notified and
provided with these transcripts as they become available.
Equipped with this knowledge, ODCR is contemplating the practicability of assigning an ODCR
staff member with the responsibility of reviewing these transcripts for Title VI issues.
Logistically, the process could be as streamlined as simply searching the transcript for keywords
and delving into context when such words are encountered, combined with conversations with
relevant staff assigned to a particular outreach initiative. Further development of these ideas is
needed, perhaps limiting the scope of the review to projects in Title VI/Nondiscrimination
population communities.
Culling FHWA Data
MassDOT recognizes that enforcing Title VI in the transportation realm is a responsibility shared
among an array of agencies, such as FHWA, FTA, MassDOT, and MPO’s. While this shared
responsibility presents some challenges, it also presents myriad opportunities. Led by a desire to
identify and capitalize upon those opportunities, ODCR has begun a collaborative dialogue with
the regional FHWA civil rights specialist. Two distinct FHWA activities which relate to Title VI
issues have been identified as useful to MassDOT in its ongoing efforts to enforce Title VI: (1)
FHWA Title VI complaint investigations and (2) MPO recertification. When FHWA investigates
Title VI complaints, there are instances where the complainant is a MassDOT subrecipient.
Having appropriate access to the results of these investigations would give MassDOT insight
into reshaping its monitoring and technical assistance activities to address identified needs.
Likewise, when FHWA conducts a certification review of an MPO, Title VI data is gathered and
analyzed. Much of this is the same data ODCR seeks during subrecipient monitoring and annual
reporting activities. Having access to this data when it is provided to FHWA better manages
limited resources of all agencies involved.
Next Steps: Ongoing discussions between FHWA and ODCR in the coming months will seek to
assess the viability of such a relationship and codify the schedule and methodologies of these
collaborations.
ODCR Presence at Meetings
ODCR envisions establishing a presence at meetings as part of Title VI program implementation.
For instance, the Environmental and Design units notified ODCR of the weekly Priority of
Projects meeting. The meeting is billed as an opportunity for MassDOT to review the general
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status of projects, at all stages, to maintain a “big-picture” view of outstanding issues. ODCR
will explore attending these meetings to provide a civil rights perspective to project status
updates and concerns. It is possible that some projects are stuck at various stages of development
due to civil rights issues. ODCR participation in these meetings may bring those issues to the
surface so that they can be addressed. Another such meeting that was brought to ODCR’s
attention is the Project Review Committee quarterly meeting (and the Pre-PRC meeting which
precedes it). When projects receive PRC approval, project proponents are able to pursue TIP
programming at their respective MPO’s. ODCR presence at these meetings will provide insight
into the reasons for project approval/advancement as opposed to projects which don’t receive
this approval. Lastly, mention was made of a recurring District Project Development Engineer
meeting. Due to the interface between these DPDE’s and municipal subrecipients, it is the
intention of ODCR to learn more about the nature of these meetings and attend if appropriate for
the Title VI purposes.
ODCR has confirmed that the next PRC meeting (of which there are three, annually) is March
21, 2013. The Title VI Specialist intends to attend. In the meantime, ODCR will continue to
identify the dates of other such upcoming opportunities.
Construction Contracts
All construction contracts contain the standard federal provisions. The current standard
provisions contain a reference to Title VI on page 00760-2, under the heading II
Nondiscrimination. ODCR staff reached out to the Construction Contracts staff, including the
State Construction Engineer, and received confirmation that moving forward, the Title VI
Appendix A language would be included in its entirety under the same heading on page 00760-4,
Section 11. Assurance Required by 49 CFR 21.
Design/Build Contracts
All design/build contracts include Appendix A language of the Title VI Assurance. The Legal
Department provided ODCR with a copy of the Whittier Request For Proposal dated August 20,
2012. Section 21 of the contract specifically addresses Title VI/Nondiscrimination.
Design/Build contracts are relatively new agreements and thus far only account for a handful of
contracts entered into by MassDOT. Legal staff has been provided with language to include and
have assured ODCR staff that the Title VI language will be included in all design/build contracts
moving forward.
Solicitations/ Contracting Services
MassDOT has no centralized procurement office. Instead, procurement for solicitations, requests
for proposals for contracted goods or services are conducted by one staff member in each office.
This staff member was identified through the internal reviews conducted in Right-of-Way,
Planning, Environmental and Design. Once identified, each staff member was asked if Title VI
language was already contained in the standard contract language they used. These staff
members were then given the Title VI Appendix A language from the Assurance as well as the
following language to be used in all solicitations or requests for proposal on behalf of MassDOT:
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“The Massachusetts Department of Transportation, in accordance with the
provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§
2000d to 2000d-4), other Nondiscrimination requirements (The Federal-Aid
Highway Act of 1973, The Age Discrimination Act of 1975, Section 504 of the
Rehabilitation Act of 1973, and Americans with Disabilities Act of 1990), and the
Regulations, hereby notifies all bidders that it will affirmatively ensure that any
contract entered into pursuant to this advertisement will be awarded without
discrimination on the ground of race, color, national origin, sex, age, or
disability.”
The staff members confirmed that the new language would be incorporated into any and all new
contracts entered into by their office. Over the next thirty days, ODCR will follow up with each
of these staff members from Right-of-Way, Planning, Environmental and Design to ensure the
language has been incorporated into the solicitations and contracts for goods and services.
Consultant Agreements
MassDOT Office of the Chief Engineer revised the Standard Provisions to be included in all
federal aid contracts with consultants. The current Standard Provisions have not been revised
since 1991. The Standard Provisions for consultant agreements was submitted in May 2012 and
is currently under review with MassDOT Legal and FHWA. Once both Legal and FHWA
approve the Standard Provisions, MassDOT will implement the new Provisions within two
weeks.
The Civil Rights Specialist of FHWA Region 1 has reviewed the Standard Provisions for Title
VI language and recommended the Chief Engineer’s Office to include the language of the Title
VI assurance either directly or as a reference. During the next thirty days, ODCR staff will work
with the Office of Chief Engineer to provide reference to Appendix A into the Standard
Provision.
Excess Property Sale Deeds
Excess Property Sale Deeds are a shared responsibility between the Property Management
division within Right-of-Way and OREAD. When MassDOT receives a request, Property
Management or OREAD, depending on which unit receives the request, begin a process to
determine actual ownership of the parcel. MassDOT Layouts are used to determine ownership;
the verification process may require examining the Title in the local Office of Deeds, as well as
contacting other state agencies. If owned by MassDOT, a written correspondence is sent to the
proponent explaining the required procedure in order for MassDOT to declare a parcel “Excess
to Highway Needs” as well as notify them of the agent who will be handling their particular
request going forward. The proponent is required to submit a $500 good faith deposit (which
may be waived, based on the circumstance, but collected as part of the closing). The proponent is
also asked to sign a copy and return it to Property Management as acknowledgement of receipt
and understanding of their rights. After the acknowledgment letter and deposit are received an
internal “canvassing” effort is initiated by Property Management to determine whether it is
appropriate to classify the parcel as “surplus” and therefore available for sale to the proponent. If
there are “No Objections” during the canvassing process, from any of the internal MassDOT
Departments/Sections, a memo is prepared and sent for approval by the Highway Administrator
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declaring the parcel surplus. Once approved by the Administrator the matter will be transferred
from Property Management to the Office of Real Estate and Asset Development. OREAD is then
responsible for the disposition of the parcel, which includes advertising the availability of the
parcel, for 3 weeks in newspapers covering the county where the parcel is located, handling the
sealed bid process to acquire the parcel, awarding the parcel and finally, conducting the closing.
ODCR is analyzing the feasibility of making the media outlet database list (an OTP product)
available to OREAD to include this publication in non-English language newspapers for parcels
located in areas with threshold LEP populations. The deed may be drafted by counsel in the
Right of Way bureau and then transferred down to OREAD for the closing.
The Property Management division and OREAD assured ODCR staff that Appendix C language
will now be included in this activity. During the next thirty days, ODCR staff will follow up with
both Property Management and OREAD to verify the language is now included in all excess
property sale deeds.
Immediate Next Steps
The results of the internal reviews were already transmitted to the FHWA Regional Civil Rights
Specialist as part of the reporting required during the Title VI/Nondiscrimination deficiency
response period. On November 15, 2012, FHWA acknowledged the analytical work ODCR was
able to do from conducting the internal reviews. However, FHWA noted a concern over the
apparent lack of agency-wide commitment to implementation and responsiveness on all Title
VI/Nondiscrimination deficiencies. FHWA has tasked ODCR with the development of work
plans tailored to each program area. Each unit head will be required to demonstrate a
commitment to the full and speedy implantation of all items on their respective work plans, in
collaboration with ODCR. ODCR is also working with Secretary Davey to provide an enterprise
–wide message on Title VI, its importance as a way of thinking about the work we do, and our
commitment to building a strong and compliant Title VI agenda. This work should be complete
by December 2012.
Reviews Scheduled for 2013
MassDOT’s September 2011 Title VI/Nondiscrimination Program contains the schedule of
internal reviews. The next federal program areas scheduled for review during 2013 are
Construction and Contract Compliance.
EXTERNAL MONITORING PROGRAM
Process
Each MassDOT subrecipient is required to sign the standard FHWA Title VI/Nondiscrimination
Agreement and Subrecipient Assurances document and update as needed.
MPOs and RPAs are required to appoint a Title VI/Nondiscrimination Coordinator and may
either adopt MassDOT’s Title VI program or develop their own. Likewise, they may adopt
MassDOT’s complaint disposition process and/or Language Access Plan or they may develop
their own. All subrecipients will be required to self-monitor, maintain a record of how they
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maintain compliance with Title VI/Nondiscrimination requirements, and provide an annual Title
VI/Nondiscrimination Update Report to the Title VI Specialist. This report should document the
outcome of any process reviews and data analyses conducted to evaluate compliance with Title
VI. Summaries of completed reports will be included in an annual MassDOT Title VI Update
Report to FHWA.
Subrecipients other than MPOs and RPAs may only be required to provide an annual Title
VI/Nondiscrimination Update report to the Title VI Specialist, depending on their size, the extent
of federal assistance they receive, nature of their programs, and the potential for discrimination,
among other factors.
A schedule will permit periodic subrecipient reviews. Priority will be given to reviewing MPOs
and other recipients of federal financial assistance with the greatest potential for impact on those
groups protected by Title VI. At least one MPO will be reviewed each year, through both desk
audit and on-site visits. The Program Areas to be covered in these reviews will be determined
based on previous report submissions, complaint data received, and other relevant factors.
MassDOT will include the following in its compliance reviews of subrecipients:
•
Review of subrecipient files to determine the nature of subrecipient services, type of
federal assistance; and Title VI Assessment
•
Review of pertinent assurance statements and policy statements
•
Review of compliance reports to determine subrecipient self-evaluation activities and any
action taken in response to the findings
•
Review of any complaints, lawsuits, or previous investigations of subrecipient
MassDOT will issue written findings and determinations confirming Title VI compliance or
deficiencies after completing desk audits and on-site reviews. To facilitate compliance reviews,
subrecipients are required to keep and submit records for review, as requested, as well as provide
access to these records. The results of compliance reviews will be documented in writing and
will include specific findings regarding compliance and recommendations for corrective actions
if any deficiencies are found.
External Monitoring Activities in 2012
The identification of an exhaustive list of all subrecipients receiving federal highway
transportation dollars passed through MassDOT has been a major challenge for ODCR. The
challenge comes from the approach MassDOT employs when interacting with subrecipients.
Most state DOT’s will funnel federal transportation dollars directly to a subrecipient to fund
programmed projects. MassDOT, on the other hand, bears the responsibility for completing
projects from 25% design through construction. The constructed asset is then handed over to the
proponent subrecipient to maintain. This transfer marks the receipt of federal financial assistance
by the subrecipient. An approach such as MassDOT’s makes subrecipient identification, which is
usually a function of tracking fund transfers, a more difficult task. What is required is an analysis
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of projects deemed eligible for federal highway transportation dollars. Due to the decentralized
nature of data management within the agency, the effort to advance such an analysis has been
marked by fits and starts. While a definitive list of federal highway transportation dollar
subrecipients still requires refinement, significant progress has been made not only identifying
certain subrecipients but also proceeding to implement other sections of the external monitoring
program on said subrecipients. Among the definitively identified subrecipients are the MPO’s,
RPA’s, municipalities, and universities that receive federal financial assistance through
MassDOT. Some notable achievements in implementing sections of an external monitoring
program of these entities are featured below.
Risk Based Monitoring Prioritization / Reviews
MassDOT’s September 2011 Title VI/Nondiscrimination Program describes the framework of
external subrecipient monitoring and the prioritization criteria on which monitoring activities
will be based. All subrecipients are required to “[1] self-monitor, [2] maintain a record of how
they maintain compliance with Title VI/Nondiscrimination requirements, and [3] provide an
annual Title VI/Nondiscrimination Update Report to the Title VI Specialist.” 1 The required
content of this annual update report is, at least, “the outcome of any process reviews and data
analyses conducted to evaluate compliance with Title VI.” 2 These annual reports provide the
underpinning of recurring compliance reviews conducted by MassDOT ODCR of subrecipients.
By requiring submission of these reports, ODCR is afforded an opportunity to regularly observe
subrecipient Title VI compliance and make recommendations for improvement, where
warranted. In discussions with the FHWA regional civil rights specialist, ODCR is
contemplating a plan to provide a questionnaire to subrecipients as a key component of
structuring annual reporting. To avoid the risk of subrecipients re-submitting questionnaires from
previous years, it is envisioned that the document will not remain consistent from year-to-year.
Instead, ODCR will modify the structure, format, substance, and focus of questions. This
empowers ODCR with the flexibility to focus on particular Title VI/Nondiscrimination issues
during each reporting cycle and guarantees that subrecipients will give their annual reports the
attention they warrant.
The MassDOT September 2011 Title VI/Nondiscrimination program goes on to state that,
“subrecipients other than MPOs and RPAs may only be required to provide an annual Title
VI/Nondiscrimination Update Report to the Title VI Specialist, depending on their [1] size, [2]
the extent of federal assistance they receive, [3] the nature of their programs, and [4] the
potential for discrimination, among other factors.” 3 By considering such factors, ODCR is able
to maximize its limited resources by focusing monitoring activities on those subrecipients that
receive the most federal financial assistance, have the greatest risk of noncompliance, are
responsible for the most interactions with Title VI populations, or require technical assistance to
implement corrective actions.
While the schedule for subrecipient reviews is flexible and adaptable based on the
aforementioned risk-based prioritization criteria, MassDOT’s Title VI/Nondiscrimination
program commits ODCR to a review of at least one MPO every year. The methodology is dual
1
MassDOT Title VI/Nondiscrimination Program, Sept. 2011, p. 5-3.
MassDOT Title VI/Nondiscrimination Program, Sept. 2011, p. 5-3.
3
MassDOT Title VI/Nondiscrimination Program, Sept. 2011, p. 5-3.
2
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pronged, utilizing both desk audits and on-site reviews. Particular MPO program areas will be
selected for review based on the content of previous annual reports submitted by the MPO,
complaints logged, and other factors.
Next Steps: ODCR has been refining its ability to conduct Title VI/Nondiscrimination
compliance reviews through the internal program area assessment process described above. The
development of these skills will bolster ODCR’s external review of the next scheduled MPO
subrecipient. The selection of the next MPO to review will be made based on criteria that are
currently solidifying; namely, (1) the expiration date of their existing Title VI programs and (2)
the schedule with which these subrecipients are expected to come into compliance with the new
FTA Title VI Circular. Considering such factors allows ODCR to focus its attention on the
MPO(s) facing the most impending deadlines as well as those seeking or requiring the most
technical assistance.
ODCR is pleased to report that a number of subrecipients, namely MPO’s and RPA’s, have
proactively reached out to ODCR for technical assistance on Title VI/Nondiscrimination
compliance. ODCR has responded by arranging and participating in face-to-face meetings with
MPO and RPA staff to answer questions, recommend strategies for compliance, and strengthen
collaborative relationships.
In recent weeks, triggered by the restructuring of management responsibilities and Title VI
staffing in light of the FTA and FHWA deficiency determinations, ODCR has made great strides
to reengage with our subrecipients to ensure adherence to our review schedule and to Title
VI/Nondiscrimination obligations. The last request for annual reports from subrecipients was
transmitted in September 2011. Unfortunately, ODCR failed to follow up effectively. Under the
direction of the Federal Program Manager, ODCR held a phone conference on November 27,
2012 with representatives from all subrecipient MPO’s. This conference provided an opportunity
to get ODCR and the MPO’s back on a regular reporting schedule;, which was identified as a key
component of the external monitoring process. ODCR has requested a submission of outstanding
and currently due MPO Title VI annual reports in order to allow for a full review of subrecipient
responsiveness to past identified deficiencies and for an assessment of any current deficiencies.
A small team of ODCR staff members have been tasked with completing these reviews
thoroughly and expediently. At the close of the conference, all attendees were supplied
(electronically) with a collection of reference materials, report templates, and Assurance
documents to make their compliance and reporting efforts as smooth and manageable as
possible.
Assurances
ODCR understands the cornerstone role which Title VI Assurances play in recipient and
subrecipient nondiscrimination compliance. A great deal of time and attention has been devoted
to securing subrecipient assurances. The specific method for securing these assurances depends
on the type of subrecipient involved. This deficiency finding response period has allowed ODCR
to develop workable plans for securing these assurances from municipal, MPO, and university
subrecipients.
Massachusetts universities have an opportunity to participate in the National Summer
Transportation Institute, a program designed to give elementary and high school students a
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glimpse into careers in transportation. The program is federally funded and state DOT
administered. Participation in the program makes universities recipients of federal transportation
dollars, and thus securing Title VI Assurances is warranted. Every year, interested universities
submit a proposal to ODCR expressing their interest in being a “host site” for the NSTI. Within
these proposals, universities are expected to provide descriptions of outreach initiatives they will
engage in to maximize participation in the program across all demographics. They must also
describe their selection criteria. It is worth noting that at the close of the program, each host site
must also submit a demographics report of participants for analysis and possible
recommendations on improving outreach initiatives. During this deficiency response period,
ODCR has been developing a proposal to require NSTI host sites to submit signed Title VI
Assurances with their applications. These applications are usually submitted in late fall or early
winter for the following summer’s program. If this approach is deemed viable, ODCR intends to
have this method of securing Assurances in place for the next round of NSTI host site
applications.
In regards to MPO’s, ODCR has or will be attending the MPO Monthly Managers Meetings
which have occurred during this deficiency finding response period. Through these efforts,
ODCR has been able to confirm that Title VI compliance has been a primary topic of concern for
the MPO’s, even making it into UPWP’s this past year. Of the many topics of discussion brought
to the floor by ODCR at these monthly meetings, one has been securing MPO Title VI
Assurances. The general atmosphere of cooperation is worth noting. Most recently, the MPOs
(and MPO liaisons within MassDOT’s Planning office) have requested that ODCR produce a
formal memo outlining the need for and purpose of Title VI Assurances. While all the players
generally understand the obligations, the request comes from the realization that the MPO boards
will likely be required to vote officially on the Assurance signing. To facilitate that process, an
official MassDOT memo has been requested, and will be developed. ODCR intends to have the
memo ready for distribution among the MPO’s by the close of this deficiency response period
and is pursing involvement in the upcoming managers meetings in order to gain traction on this
issue.
Several proposals have been contemplated for securing municipal Title VI Assurances. The
greatest progress has been made on the ODCR proposal to modify the Municipal Project Guide
(MPG) to include these Assurances. Specifically, two required forms within the MPG have been
identified for modification.
1) The Project Need Form is the document utilized by municipalities in proposing
transportation projects. The required forms are to be signed by the chief elected official,
and they are received by the MassDOT district office project development engineers. The
form requires municipal project proponents to describe the contemplated transportation
improvement and the impacts such a project will have on the community (both positive
and negative). It is through the use of the modified PNF, ODCR envisions putting
municipalities on notice of Title VI obligations they will be under if their project is
deemed federal aid eligible and ultimately approved, programmed, advertised, and
constructed. The reasoning behind this approach is that between the PNF and the next
substantive submission to MassDOT, municipalities are expected to conduct community
outreach initiatives to benefit from public comment. Municipalities should be aware of
their Title VI obligations in this regard as they advance projects. However, it is still
possible that the project will not ultimately be approved by MassDOT. The chance of
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securing a signed Title VI Assurance at the PNF stage without a correlative gesture of
project approval from MassDOT is unlikely to be a workable approach.
2) The second substantive project development submission by municipalities to MassDOT
is the Project Initiation Form (PIF). It is through this required form that municipalities are
afforded an opportunity to detail their community outreach initiatives and environmental
impacts from the proposed project. It is the submission of this form that puts the
municipality before the MassDOT Project Review Committee to request project
approval. With this approval, municipalities are empowered to pursue the design
development stage of the project. Through modifications to the PIF, ODCR proposes that
municipalities provide signed Title VI Assurances to MassDOT. The PIF submission
marks the point at which municipalities are seeking official project approval from
MassDOT. After the PIF stage, municipalities will be conducting formal public hearings,
hiring consultants for project design and development, and other such formal steps. By
securing Title VI Assurances with the PIF, MassDOT will be able to ensure that these
activities are conducted in conformity with Title VI at a timely and critical phase in the
process.
The proposal to utilize the Municipal Project Guide for securing Title VI Assurances has been
presented for critique and comments both internally and externally. The Title VI Working Group
provided feedback, as did the Highway Engineer’s office and the office of Design. The proposal
was floated at the September MPO Monthly Managers Meeting and was favorably received.
ODCR has been able to identify the MassDOT staffer who is currently pursuing other PNF and
PIF revisions to the hardcopy documents. An upcoming meeting has been scheduled to discuss
adding the proposed Title VI modifications. Furthermore, a broader re-working of the Project
Info system, currently under development by the IT department, includes making the PNF and
PIF forms interactive online documents which, once filled out by municipalities, automatically
populate the appropriate fields in the Project Info database. ODCR has begun collaborating with
IT to ensure that Title VI issues are incorporated into these revisions, including providing ODCR
with automatic notification of new PNF and PIF submissions so that ODCR staff can review
those aspects of project development with Title VI implications for compliance, reporting,
technical assistance, and recommendations.
In regards to a logistical issue with Title VI Assurances, ODCR has entered into consultation
with the MassDOT Legal Department regarding the interface between the Assurances and
MassDOT’s document retention policy and storage options. ODCR anticipates a workable
approach to these logistical issues by the time subrecipients begin responding to these new
proposals with signed Assurances.
The topic of Assurances featured in the aforementioned November 27, 2012 conference with
MPO’s. The newest version of the FHWA Title VI/Nondiscrimination Assurances were
transmitted to all MPO’s following the conference with instructions that they be signed and
adhered to as soon as practicable.
TITLE VI/NONDISCRIMINATION TRAINING SUMMARY
Training is the crucial link between Title VI program development and Title VI program
implementation. A robust and effective training initiative allows ODCR to fully implement the
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Title VI program which was so diligently and meticulously developed and tailored to MassDOT.
Likewise, training empowers our subrecipients to act in conformity with the regulations and
objectives of Title VI and related nondiscrimination protections.
Based on guidance provided by the FHWA Regional Civil Rights Specialist, ODCR has utilized
the past weeks to formulate “narratives” describing the structure and objective of each tier of
internal and external training. The internal training narrative has been presented to the Title VI
Working Group and individual units throughout the agency. The Title VI Working Group was
tasked with reviewing the materials and providing feedback, which proved to be a worthwhile
endeavor as it helped to clarify issues and further tailor the training program. ODCR has also
received feedback from Design, Environmental, and Planning on the internal training narrative.
Concurrent with the effort to finalize the internal training narrative, ODCR is producing internal
training modules aimed at effectuating the training envisioned in the narrative. Several draft
training modules are in advanced stages of development. The Title VI Working Group had the
opportunity to provide feedback on one such module at the most recent meeting. Several existing
training opportunities have been identified by ODCR as viable for incorporation of a Title VI
component. For instance, conversations with the district highway offices have indicated that the
winter season is regularly utilized to provide a wide array of trainings. Likewise, the MassDOT
diversity training program and the “How May I Help You Today” training presents ODCR with
opportunities to increase awareness of Title VI and its agency-wide implications. Moreover,
ODCR has staff dedicated to non-discrimination training, and there is a MassDOT University
that is working to build a range of skills for employees, among which could include Title VI
considerations. ODCR has begun the process of collaborating with those responsible for these
training programs for the purpose of Title VI training inclusion.
The external training initiative has been given a similar treatment as the internal training
initiative. Efforts to develop a narrative to structure and guide the development of specific
training modules have proved similarly productive. ODCR has given a significant amount of
time and attention to identifying the appropriate venues through which to roll out external
subrecipient training. The process of internal program area assessments gave ODCR the
opportunity to draw from a vast pool of institutional knowledge and awareness of training
initiatives aimed at subrecipients including MPOs, contractors, and municipalities. For instance,
the assessment of the Right of Way division clarified the role of the Community Compliance unit
which bears primary responsibility for oversight of municipal right of way activities. The
Community Compliance unit maintains a regular schedule of meetings and trainings with
municipalities and the consultants they hire for transportation project development and is being
targeted as a primary resource for reaching such subrecipients with Title VI training. Other
methods identified to reach subrecipients with Title VI training includes: Bay State Roads, the
American Council of Engineering Companies, the American Planning Association, and the
Massachusetts Municipal Association. All have been contacted and an effort to determine
upcoming training schedules as well as the approach ODCR should take to incorporate a Title VI
module into existing training initiatives is underway.
In reference to external subrecipient training, it is worth noting an observation made during the
internal program area assessment of Right of Way regarding the use of fee appraisers. The head
of the Appraisals unit noted a dramatic reduction in the number of fee appraisers who had
responded to RFR’s in the past and had entered into fee appraiser contracts. The anecdotal
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evidence seemed to point to a concern over the complexity of the CommPASS system, used by
contractors when responding to RFR’s to be considered for contracts. Subsequent investigation
of the situation has indicated that the statewide procurement office is aware of these types of
criticisms of the CommPASS system and is in the process of considered revisions to the software
coupled with a renewed training initiative to remove barriers to participation.
A crucial component of ODCR’s external and internal training efforts is a focus on the
MassDOT Public Participation Plan. The plan itself is intended to notify the public of agency
public outreach procedures and methods employed to encourage involvement by community
members and stakeholders. As of today, the draft plan has been through one internal comment
period. The comments received have since been incorporated into a revised draft plan. That
revised draft plan is now ready for a second internal comment period. Department heads and the
Title VI Working Group have been solicited for comment, and other interested parties (such as
Central Transportation Planning Services (CTPS)) are planning to respond. Following internal
comment and plan revision, the public participation plan will be presented publically for
stakeholder comment. ODCR has also solicited recommendations from our CTPS consultant on
available public vetting procedures with associated timelines for each approach. The right
balance between thorough opportunities for public comment and keeping responsiveness to
FHWA’s Title VI deficiency findings in mind will shape ODCR’s next steps.
TITLE VI/NONDISCRIMINATION COMPLAINTS SUMMARY
During 2012, MassDOT received one complaint against two RMV employees alleging a single
incident of national origin discrimination. The situation arose during a customer’s attempt to
convert a foreign driver’s license into a Massachusetts license. An investigation was conducted
by MassDOT ODCR. The investigation recommended disciplinary actions and the provision of
additional training for both RMV employees, which was issued. The investigative report,
including findings and recommendations, was forwarded to the NHTSA Office of Civil Rights,
as the appropriate Title VI oversight agency with jurisdiction over complaints against the
Registry. Upon reviewing the investigative report, the acting director of the NHTSA Office of
Civil Rights stated that MassDOT’s “investigative process resolved the complaint in a productive
and efficient manner.”
During 2012, MassDOT received one complaint regarding an incident at a gas station facility
along the Massachusetts Turnpike. The basis for the complaint was disability. The situation arose
when a motorist with a mobility impairment requested assistance with the fueling process from
the gas station attendant. An investigation was conducted by MassDOT ODCR. The
investigation concluded in a no cause finding. Strict adherence to fire code regulations by the gas
station attendants prevented them from responding to the assistance request in a timely manner.
As per the recommendations in the investigation report, signage was erected at this and other
such fueling locations along the Turnpike in order to more clearly and accurately describe the
process for securing assistance with fueling.
During 2012, MassDOT received one complaint against a subrecipient MPO. The basis for the
complaint was disability. The situation arose when assistive listening devices provided by the
MPO during a public meeting did not accommodate a participant’s hearing impairment. An
investigation was conducted by MassDOT ODCR. The investigation concluded that there was no
violation of applicable law or policy. The investigative report did recommend that the MPO
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conduct an audit of available assistive devices to determine which will meet the widest spectrum
of needs effectively.
SPECIAL EMPHASIS AREAS
MassDOT remains in deficiency status following the August 2012 findings by FHWA. The
special emphasis areas, for the immediate near term, are based on addressing those areas of
program implementation identified as deficient. To that end, ODCR has created an action plan
detailing the steps remaining to come into full compliance with Title VI/Nondiscrimination
obligations. Those steps are detailed below.
Deficiency Finding (Title VI/Nondiscrimination Compliance Review Report, 8/7/12):
“MassDOT has not fully implemented the Internal Monitoring Program – While the Internal
Monitoring Program is carefully crafted to MassDOT’s organizational structure, MassDOT
needs to complete Federal Program Area Surveys/Assessments and establish specific
protocols, methods for data collection and analysis, as well as an internal review element.
MassDOT should report annually to the Division Office regarding progress made.”
1. Develop the program area specific work plans required by FHWA’s November 15, 2012
correspondence for Right-of-Way, Design, Environmental, Planning and Office of Real Estate
and Asset Development (OREAD), in consultation with FHWA’s regional Civil Rights
Specialist and national Title VI Program Manager. Work plans will include all proposed specific
protocols for data collection and analysis that have been developed as part of the internal
program area assessments, with specific requirements for each affected department. To be
completed by Dec. 20, 2012.
2. Continue conducting post-assessment consultations with department heads and Title VI
Liaisons in Right-of-Way, Design, Environmental, and OREAD to confirm through written
agreement each unit’s intent to fully implement and to all action items in program area specific
work plans. Provide technical assistance as needed. To be completed by December 20, 2012.
3. Conduct meeting with Secretary/CEO Davey, David Mohler (Director of Planning), Clinton
Bench (Deputy Director of Planning), Eddie Jenkins (Chief Diversity and Civil Rights Officer),
and John Lozada (Federal Programs Manager) to clarify the shared Title VI/Nondiscrimination
oversight responsibilities of OTP and ODCR, complete the Planning assessment, and implement
all recommendations. (Nov. 30, 2012)
4. By January 31, 2012, initiate the second round of internal reviews schedule contained within
the September 2011 MassDOT Title VI/Nondiscrimination Program, with respect to the
following departments: Construction and Contract Compliance (ongoing)
Deficiency Finding (Title VI/Nondiscrimination Compliance Review Report, 8/7/12):
“MassDOT has not implemented the External Monitoring Program – Step 1 to the External
Monitoring Program is to identify a Sub-Recipient List. Once this List is developed, MassDOT
may then proceed to implement other sections of the External Monitoring Program, including
Monitoring, Reviews, Training, Notification, and Assurances.”
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1. Implement established proposals to secure Title VI/Nondiscrimination Assurance from
identified subrecipients – MPO’s, RPA’s, municipalities, universities, and contractors. These
include having municipal chief elected officials sign and return Title VI Assurances upon receipt
of Project Review Committee Approval Letter, having all MPO boards vote on signing Title VI
Assurances at first available upcoming scheduled board meeting, having universities include
Title VI Assurances with their NSTI host-site applications, and having Title VI Assurances
included in appendix of federal provisions included in contractor contracts. (Dec. 20, 2012)
2. Incorporate risk-based prioritization strategy recommended by FHWA into ongoing
monitoring processes, to be implemented consistent with established monitoring schedule. Risk
factors include the receipt of complaints, the risk of Title VI violations, the amount of federal
financial assistance provided, and the date since last review. (ongoing)
3. Finalize training modules for Title VI compliance under development and coordinate with
organizations that have expressed an interest in making Title VI/Nondiscrimination training as
part of their upcoming training schedule (such as the Massachusetts Municipal Association, Bay
State Roads, American Council of Engineering Companies, and the American Planning
Association). (Dec. 20, 2012)
Deficiency Finding (Title VI/Nondiscrimination Compliance Review Report, 8/7/12):
“MassDOT has not identified those Units responsible for development and administration of
municipal/design, solicitations for bids/RFP’s, consultant agreements, construction contracts,
airspace leases, excess property sale deeds, and other related documents. Once this is
accomplished, MassDOT may then ensure that these Units are including the required Title
VI/Nondiscrimination paragraph or inserts as applicable.”
1. Confirm that Title VI/Nondiscrimination language has been inserted in identified documents
as requested by ODCR as part of the Deficiency I internal assessment process. This includes
Construction Contracts, Leases, Design/Build Contracts, Deeds, Municipal Design Agreements,
Consultant Contracts, and Solicitations. To be completed by Nov. 30, 2012.
Deficiency Finding (Title VI/Nondiscrimination Compliance Review Report, 8/7/12):
“MassDOT requires (Local Public Agencies) (LPA) to cover costs incurred as a project is
developed to 25% Design. As the exclusive use of this measure may exclude Title
VI/Nondiscrimination populations from participation in Federally-funded programs/projects,
MassDOT should conduct an analysis and, where necessary, explore measures that may offset
or mitigate the ability for Title VI/Nondiscrimination populations to participate in the Federalaid Highway Program, apart from any State program.”
1. Complete the mapping project currently underway by OTP’s GIS Services unit to map
municipally proposed, PRC approved project locations against Title VI/Nondiscrimination
populations statewide, with a look-back period covering the last two iterations of the STIP. To be
completed by Nov. 28, 2012
2. Analyze results of the mapping project to address issues with municipalities to ensure that
there is equity in the planning and design processes where disproportionate investments are
evident that cannot be explained on a nondiscriminatory justification.
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Deficiency Finding (Title VI/Nondiscrimination Compliance Review Report, 8/7/12):
“Relative to data collection requirements identified for each Federal Program Area, MassDOT
and the Massachusetts MPOs should consistently collect and analyze the following statistical
data: race, color, national origin, sex, age, disability, low-income, and Limited English
Proficiency.”
1. Implement all proposed methods for data collection identified during the Deficiency I program
area assessments. This includes collecting fee appraiser demographics, providing a demographics
survey to those impacted by right-of-way activities, making a demographics survey available at
public meetings/hearings, ODCR review of public meeting/hearing transcripts to identify Title
VI/Nondiscrimination issues, and culling relevant data already being captured by FHWA during
activities such as investigations and MPO certification reviews. (Dec. 15, 2012)
2. Continue to identify other sources of necessary data and methods for its collection and
analysis. (ongoing)
Deficiency Finding (Title VI/Nondiscrimination Compliance Review Report, 8/7/12):
“MassDOT has not fully implemented the approved Title VI/Nondiscrimination Plan –
MassDOT needs to revise its Implementation Plan (Work Plan, Table 6-1) with identified
deliverables and due dates for those elements of the Plan that have not been fully established
or implemented. The Division Office will assist identifying the sections of the Plan that have
not been fully implemented.”
1. As per FHWA’s request through their November 15, 2012 correspondence, the
implementation plan for ODCR deliverables will be updated to reflect all outstanding elements
of a complete response to all enumerated deficiencies and will be supported by program area
specific work plans developed as part of the Deficiency I assessments. (Dec. 15, 2012)
ENVIRONMENTAL JUSTICE
MassDOT incorporates the principles of Executive Order 12898 on environmental justice (EJ)
into its programs, policies, and activities to ensure that there are no disproportionate adverse
impacts related to the transportation system on any group of persons, particularly low-income
and minority persons. Additionally, the principles of Executive Order 13166 on limited English
proficiency (LEP) are incorporated to ensure that meaningful access is provided to persons who
have limited proficiency in the English language. MassDOT carries out this responsibility by
involving minority and low-income individuals in the transportation process and considering
their transportation needs in the development and review of MassDOT’s transportation plans,
programs and projects.
To ensure that minority and low-income individuals are included and respected in all aspects of
the transportation planning processes, MassDOT has developed a demographic map using data
from the U.S. Census Bureau to show areas of concentrations of EJ populations: 2010 decennial
census data are used to identify minority areas and 2006–2010 American Community Survey
census data are used to identify low-income areas. The map shows which census tracts are
classified as minority, low-income, or both minority and low-income. MassDOT will continue to
update and map its EJ data and share it internally and with subrecipients for use in identifying
locations of EJ populations. The information will be used in ensuring the inclusion of these
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residents in public outreach efforts and in evaluating the allocation of benefits and burdens of
transportation projects during the planning process.
The Office of Transportation Planning, with help from IT, is also currently developing a web
application for MassDOT and its subrecipients to use in Title VI/EJ outreach, planning, and
analysis. The application, which will be located on MassDOT’s intrawebsite for internal use as
well as externally to provide Title VI/EJ data to members of the public or interested stakeholders.
The mapping tool will allow the user to select a geographic area of interest (an RPA region, an
RTA region, or a town) and view an on-line map that displays census tracts within the selected
geography that are designated as low-income, minority, or LEP for Title VI. The user will also
be able to display a table of the statistics for each of these variables and for the languages used
within the selected geography. In addition, the user will be able to call up a printable page of
these statistics for each level of geography. Finally, the user will be able to select a town and
obtain a list of the community-based organizations (CBOs) serving it. Because the data to be
displayed by this application is quite variable over time, MassDOT will update it regularly. A
draft version is currently undergoing internal review. Once all the data has been incorporated and
verified, the IT department is prepared to make the tool live on the internal and external
websites.
LIMITED ENGLISH PROFICIENCY
The creation of an agency-wide Language Access Plan has featured in the work of ODCR during
the work of this past year. Part of the impetus for the efforts was a finding by FTA that ODCR
needs to improve its efforts to provide meaningful access to Limited English Proficient (LEP)
persons and to ensure subrecipients are doing the same. Rather than respond to this finding in a
purely FTA-centric manner, ODCR strives to meet all LEP obligations in conformity with both
FTA and FHWA Title VI/Nondiscrimination regulations. In April 2012, ODCR’s Language
Access Plan was updated to reflect the completion of Factor One and the near completion of
Factor Two of the LEP four factor analysis. In November 2012, ODCR prepared an action plan
for all outstanding components. Those steps are detailed below.
Implementation Plan Schedule, Deficiency 2 – Language Access to LEP Persons:
Corrective Action: Organize work plan and schedule for completing LEP analysis and
preparing MassDOT Language Assistance Plan.
1. MassDOT developed and submitted to FTA a draft Language Assistance Plan as of April
2012, which has a nearly complete factor two analysis. The final survey data from MassDOT
employees has been received and analyzed, and the Language Assistance Plan will be updated to
include this data. Expected completion of factor two data analysis is January 10, 2013.
2. To address factor three, MassDOT has surveyed employees to identify documents that may
need to be translated. In addition, MassDOT is preparing a survey to be distributed as part of a
mass electronic mailing via Constant Contacts and mass postal mailing to stakeholders and
relevant organizations to identify the importance of various types of documents and any other
document types that stakeholders believe are important to be translated, as well as the programs,
services and activities that may be important to LEP persons. This survey will be sent with the
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Notice to Beneficiaries mailing and the solicitation of public comment to the Public Participation
Plan on or before December 15, 2012.
3. To address factor four, MassDOT has established that many of the costs attributable to
translating materials are already linked to project development budgets. Based on the nature and
extent of requests or suggestions for different types of materials to be translated, as well as the
results of the survey to be sent in mid-December, by January 7, 2012, MassDOT will further
analyze the factor of cost to determine whether any additional budgeting is required to address
this potential need. Currently, matters that are not already budgeted are being referred to the
MassDOT Budget Director for the identification of the appropriate line item and/or account from
which funds may be drawn for language assistance services.
A key component in providing meaningful access to LEP persons is the MassDOT Public
Participation Plan. The plan informs the public of their rights and details how participation will
be facilitated. This includes procedures for eliminating barriers to participation caused by
language. In November 2012, ODCR prepared an action plan all outstanding components of
developing and implementing the Public Participation Plan. Those steps are detailed below.
Implementation Plan Schedule, Deficiency 1 – Public Outreach Deficiencies:
Corrective Action: Finalize development of agency-wide Public Participation Plan and
implement accordingly.
1. Through collaboration with CTPS, MassDOT has developed a public participation plan and
has received comment from a limited number of internal stakeholders. Those comments yielded
a revised draft plan ready for additional internal review and comment on an expedited schedule.
This outreach will be conducted to increase the level of internal feedback. This feedback will be
secured and the public participation plan updated by December 10, 2012 for submission to FTA,
subject to modification upon the receipt and incorporation of such public comment as is received
from our outreach effort (see Item 3, below).
2. MassDOT will finalize the draft mapping tool that has been created by the Office of
Transportation Planning by December 15, 2012. This tool will feature the identification of
minority, low-income and/or limited English proficient populations, and the identification and
contact information for key stakeholder organizations to facilitate outreach to affected
populations in the communities where either MassDOT or subrecipients hold public meetings.
Access to this tool will be provided to subrecipients by December 31, 2012, with training
provided through the Transportation Managers Group on January 13, 2013.
3. Through outreach to the public through the Constant Contact tool, via e-mail and direct
mailing by December 15, 2012, MassDOT will invite the public to review, access and comment
on the Public Participation Plan online or via mail for public input into the draft. The request will
be made for the public to submit comment by December 31, 2012, although further comment
will be accepted after that date.
MassDOT will also work through its Public Affairs office and the Title VI Working Group to
conduct a series of community meetings to solicit input on the public participation plan, which
are planned to begin in January 2013.
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4. MassDOT’s Title VI Working Group will convene to strategize an approach to training
internal staff on the inclusive public participation strategy, which will begin to be implemented
in late February 2013. Part of this planning will include determination, with the Rail and Transit
Division of approaches to providing training and/or guidance materials on public participation to
the rural transit authorities under MassDOT’s jurisdiction. Work has already begun on a toolkit
for project managers and public meeting facilitators to understand how best to implement the
tenets of Title VI and related nondiscrimination practices included in the Public Participation
Plan.
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