Department of Transportation (DOT) Order To Address Environmental Justice in Minority Populations and Low-Income Populations

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

[OST Docket No. OST-95-141 (50125)]

Department of Transportation (DOT) Order To Address Environmental

Justice in Minority Populations and Low-Income Populations

AGENCY: Departmental Office of Civil Rights and Office of the Assistant

Secretary for Transportation Policy, DOT.

ACTION: Notice of final DOT Order on environmental justice.

-----------------------------------------------------------------------

SUMMARY: The Department of Transportation is issuing its final DOT

Order, which will be used by DOT to comply with Executive Order 12898,

Federal Actions to Address Environmental Justice in Minority

Populations and Low-Income Populations. The Order generally describes

the process that the Office of the Secretary and each Operating

Administration will use to incorporate environmental justice principles

(as embodied in the Executive Order) into existing programs, policies,

and activities. The Order provides that the Office of the Secretary and

each Operating Administration within DOT will develop specific

procedures to incorporate the goals of the DOT Order and the Executive

Order with the programs, policies and activities which they administer

or implement.

FOR FURTHER INFORMATION CONTACT: Ira Laster Jr., Office of Environment,

Energy, and Safety, Office of the Assistant Secretary for

Transportation Policy, (202) 366-4859, or Marc Brenman, Departmental

Office of Civil Rights, (202) 366-1119, U.S. Department of

Transportation, 400 7th Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: Executive Order 12898, as well as the

President's February 11, 1994 Memorandum on Environmental Justice (sent

to the heads of all departments and agencies), are intended to ensure

that Federal departments and agencies identify and address

disproportionately high and adverse human health or environmental

effects of their policies, programs and activities on minority

populations and low-income populations.

[[Page 18378]]

The DOT Environmental Justice Order is a key component of DOT's

June 21, 1995 Environmental Justice Strategy (60 FR 33896). The Order

sets forth a process by which DOT and its Operating Administrations

will integrate the goals of the Executive Order into their operations.

This is to be done through a process developed within the framework of

existing requirements, primarily the National Environmental Policy Act

(NEPA), Title VI of the Civil Rights Act of 1964 (Title VI), the

Uniform Relocation Assistance and Real Property Acquisition Policies

Act of 1970, as amended (URA), the Intermodal Surface Transportation

Efficiency Act of 1991 (ISTEA), and other DOT applicable statutes,

regulations and guidance that concern planning; social, economic, or

environmental matters; public health or welfare; and public

involvement. The Order is an internal directive to the various

components of DOT and does not create any right to judicial review for

compliance or noncompliance with its provisions.

In order to provide an opportunity for public input, a proposed

version of this Order was published for comment on June 29, 1995 (60 FR

33899). A total of 30 written comments were received. Fifteen comments

were received from state transportation or highway agencies,

representing 20 state agencies (one letter was signed by ten state

agencies, but four of those also sent individual comments). The other

15 comments included four from transit agencies, four from national

organizations, two each from local governments, metropolitan planning

organizations, and citizens objecting to one particular project, and

one from a professional association.

Most of the comments from the state agencies suggested that the

proposed Order would duplicate existing processes and impose additional

burdens on the state agencies, and urged that greater flexibility be

granted to states.

The DOT Order reinforces considerations already embodied in NEPA

and Title VI, and the final version has been revised to make this

clearer. It is intended to insure that a process for the assessment of

environmental justice factors becomes common practice in the

application of those, and related, statutes.

Many other comments suggested ways in which the Order might be

clarified or simplified, or addressed specific details of individual

agency implementation. As this Order is only intended to provide

general guidance to all DOT components, detailed comments on each

agency's implementation are premature, and should be made during

opportunities for public input on agency implementation (para. 5 of the

Order).

Several commenters suggested greater reliance on existing

procedures, particularly those implementing NEPA.

One commenter noted, ``Over the past number of years we have seen

rules and laws initiated with laudable intent, only to be slowly

transformed into bureaucratic mazes only dimly related to their

original purpose.''

The Department does not intend that this Order be the first step in

creating a new set of requirements. The objective of this Order is the

development of a process that integrates the existing statutory and

regulatory requirements in a manner that helps ensure that the

interests and well being of minority populations and low-income

populations are considered and addressed during transportation decision

making.

To further advance this objective, explanatory information has been

provided in this preamble and several changes have been made in the

Order. Most notably:

--Further clarification has been provided concerning the use of

existing NEPA, Title VI, URA and ISTEA planning requirements and

procedures to satisfy the objectives of Executive Order 12898.

--The application of the Order to ongoing activities is discussed in

this preamble.

--The Order has been modified to further clarify the relationship

and use of NEPA and Title VI in implementing the Executive Order.

Further, in developing and reviewing implementing procedures,

described in paragraph 5a to comply with Executive Order 12898, the

emphasis continues to be on the actual implementation of NEPA, Title

VI, the URA and ISTEA planning requirements so as to prevent

disproportionately high and adverse human health or environmental

effects of DOT's programs, policies and activities on minority

populations and low-income populations.

One of the primary issues raised in the proposed Order concerned

the actions that would be taken if a disproportionately high and

adverse human health or environmental effect on minority populations or

low-income populations is identified. The proposed Order set forth

three options. A variety of comments were received on this issue, both

for and against the various options.

The final Order adopts a modified version of Option B from the

proposed Order. While Option B implements a new process for addressing

disproportionately high and adverse effects, the Department believes

that Option B is consistent with existing law and best accomplishes the

objectives of the Executive Order. Option B (now incorporated in

paragraphs 8a, 8b and 8c of the final Order) provides that

disproportionate impacts on low-income and minority populations are to

be avoided, if practicable, that is, unless avoiding such

disproportionate impacts would result in significant adverse impacts on

other important social, economic, or environmental resources. Further,

populations protected by Title VI are covered by the additional

provisions of paragraph 8b. Three commenters expressed concern and

uncertainty as to the implementation of paragraph 6b(1) of Option B as

proposed, that provided for an agreement with populations protected by

Title VI. DOT agreed with the comments and, accordingly, that paragraph

has been deleted from the final Order.

Several commenters asked about the effective date of this Order. In

particular they wanted to know whether it applies to ongoing projects.

The effective date of the Order is the date of its issuance. However,

to the extent that the Order clarifies existing requirements that

ensure environmental justice principles are considered and addressed

before final transportation decisions are made, its purposes already

should be reflected in actions relating to ongoing projects.

Several commenters recommended that insignificant or de minimis

actions not be covered by this Order. It is noted that the definition

of ``programs, policies and/or activities'' in Section 1f of the

Appendix does not apply to those actions that do not affect human

health or the environment. Other actions that have insignificant

effects on human health or the environment can be excluded from

coverage by a DOT component.

One commenter suggested that this Order might be inconsistent with

the Supreme Court's decision in Adarand Constructors v. Pena. DOT has

concluded that, since the purpose of this Order is unrelated to the

types of programs which were the subject of Adarand, this Order is not

affected by the Adarand decision.

Dated: February 3, 1997.

Federico F. Pena,

Secretary of Transportation.

Department of Transportation, Office of the Secretary, Washington,

D.C.

Order

Subject: Department of Transportation Actions To Address Environmental

[[Page 18379]]

Justice in Minority Populations and Low-Income Populations

1. Purpose and Authority

a. This Order establishes procedures for the Department of

Transportation (DOT) to use in complying with Executive Order 12898,

Federal Actions to Address Environmental Justice in Minority

Populations and Low-Income Populations, dated February 11, 1994.

Relevant definitions are in the Appendix.

b. Executive Order 12898 requires each Federal agency, to the

greatest extent practicable and permitted by law, and consistent with

the principles set forth in the report on the National Performance

Review, to achieve environmental justice as part of its mission by

identifying and addressing, as appropriate, disproportionately high and

adverse human health or environmental effects, including interrelated

social and economic effects, of its programs, policies, and activities

on minority populations and low-income populations in the United

States. Compliance with this DOT Order is a key element in the

environmental justice strategy adopted by DOT to implement the

Executive Order, and can be achieved within the framework of existing

laws, regulations, and guidance.

c. Consistent with paragraph 6-609 of Executive Order 12898, this

Order is limited to improving the internal management of the Department

and is not intended to, nor does it, create any rights, benefits, or

trust responsibility, substantive or procedural, enforceable at law or

equity, by a party against the Department, its operating

administrations, its officers, or any person. Nor should this Order be

construed to create any right to judicial review involving the

compliance or noncompliance with this Order by the Department, its

operating administrations, its officers or any other person.

2. Scope

This Order applies to the Office of the Secretary, the United

States Coast Guard, DOT's operating administrations, and all other DOT

components.

3. Effective Date

This Order is effective upon its date of issuance.

4. Policy

a. It is the policy of DOT to promote the principles of

environmental justice (as embodied in the Executive Order) through the

incorporation of those principles in all DOT programs, policies, and

activities. This will be done by fully considering environmental

justice principles throughout planning and decision-making processes in

the development of programs, policies, and activities, using the

principles of the National Environmental Policy Act of 1969 (NEPA),

Title VI of the Civil Rights Act of 1964 (Title VI), the Uniform

Relocation Assistance and Real Property Acquisition Policies Act of

1970, as amended, (URA), the Intermodal Surface Transportation

Efficiency Act of 1991 (ISTEA) and other DOT statutes, regulations and

guidance that address or affect infrastructure planning and

decisionmaking; social, economic, or environmental matters; public

health; and public involvement.

b. In complying with this Order, DOT will rely upon existing

authority to collect data and conduct research associated with

environmental justice concerns. To the extent permitted by existing

law, and whenever practical and appropriate to assure that

disproportionately high and adverse effects on minority or low income

populations are identified and addressed, DOT shall collect, maintain,

and analyze information on the race, color, national origin, and income

level of persons adversely affected by DOT programs, policies, and

activities, and use such information in complying with this Order.

5. Integration With Existing Operations

a. The Office of the Secretary and each operating administration

shall determine the most effective and efficient way of integrating the

processes and objectives of this Order with their existing regulations

and guidance. Within six months of the date of this Order each

operating administration will provide a report to the Assistant

Secretary for Transportation Policy and the Director of the

Departmental Office of Civil Rights describing the procedures it has

developed to integrate, or how it is integrating, the processes and

objectives set forth in this Order into its operations.

b. In undertaking the integration with existing operations

described in paragraph 5a, DOT shall observe the following principles:

(1) Planning and programming activities that have the potential to

have a disproportionately high and adverse effect on human health or

the environment shall include explicit consideration of the effects on

minority populations and low-income populations. Procedures shall be

established or expanded, as necessary, to provide meaningful

opportunities for public involvement by members of minority populations

and low-income populations during the planning and development of

programs, policies, and activities (including the identification of

potential effects, alternatives, and mitigation measures).

(2) Steps shall be taken to provide the public, including members

of minority populations and low-income populations, access to public

information concerning the human health or environmental impacts of

programs, policies, and activities, including information that will

address the concerns of minority and low-income populations regarding

the health and environmental impacts of the proposed action.

c. Future rulemaking activities undertaken pursuant to DOT Order

2100.5 (which governs all DOT rulemaking), and the development of any

future guidance or procedures for DOT programs, policies, or activities

that affect human health or the environment, shall address compliance

with Executive Order 12898 and this Order, as appropriate.

d. The formulation of future DOT policy statements and proposals

for legislation which may affect human health or the environment will

include consideration of the provisions of Executive Order 12898 and

this Order.

6. Ongoing DOT Responsibility

Compliance with Executive Order 12898 is an ongoing DOT

responsibility. DOT will continuously monitor its programs, policies,

and activities to ensure that disproportionately high and adverse

effects on minority populations and low-income populations are avoided,

minimized or mitigated in a manner consistent with this Order and

Executive Order 12898. This Order does not alter existing assignments

or delegations of authority to the Operating Administrations or other

DOT components.

7. Preventing Disproportionately High and Adverse Effects

a. Under Title VI, each Federal agency is required to ensure that

no person, on the ground of race, color, or national origin, is

excluded from participation in, denied the benefits of, or subjected to

discrimination under any program or activity receiving Federal

financial assistance. This statute affects every program area in DOT.

Consequently, DOT managers and staff must administer their programs in

a manner to assure that no person is excluded from participating in,

denied the benefits of, or subjected to discrimination by any program

or

[[Page 18380]]

activity of DOT because of race, color, or national origin.

b. It is DOT policy to actively administer and monitor its

operations and decision making to assure that nondiscrimination is an

integral part of its programs, policies, and activities. DOT currently

administers policies, programs, and activities which are subject to the

requirements of NEPA, Title VI, URA, ISTEA and other statutes that

involve human health or environmental matters, or interrelated social

and economic impacts. These requirements will be administered so as to

identify, early in the development of the program, policy or activity,

the risk of discrimination so that positive corrective action can be

taken. In implementing these requirements, the following information

should be obtained where relevant, appropriate and practical:

--Population served and/or affected by race, color or national

origin, and income level;

--Proposed steps to guard against disproportionately high and

adverse effects on persons on the basis of race, color, or national

origin;

--present and proposed membership by race, color, or national

origin, in any planning or advisory body which is part of the

program.

c. Statutes governing DOT operations will be administered so as to

identify and avoid discrimination and avoid disproportionately high and

adverse effects on minority populations and low-income populations by:

(1) identifying and evaluating environmental, public health, and

interrelated social and economic effects of DOT programs, policies and

activities,

(2) proposing measures to avoid, minimize and/or mitigate

disproportionately high and adverse environmental and public health

effects and interrelated social and economic effects, and providing

offsetting benefits and opportunities to enhance communities,

neighborhoods, and individuals affected by DOT programs, policies and

activities, where permitted by law and consistent with the Executive

Order,

(3) considering alternatives to proposed programs, policies, and

activities, where such alternatives would result in avoiding and/or

minimizing disproportionately high and adverse human health or

environmental impacts, consistent with the Executive Order, and

(4) eliciting public involvement opportunities and considering the

results thereof, including soliciting input from affected minority and

low-income populations in considering alternatives.

8. Actions To Address Disproportionately High and Adverse Effects

a. Following the guidance set forth in this Order and its Appendix,

the head of each Operating Administration and the responsible officials

for other DOT components shall determine whether programs, policies,

and activities for which they are responsible will have an adverse

impact on minority and low-income populations and whether that adverse

impact will be disproportionately high.

b. In making determinations regarding disproportionately high and

adverse effects on minority and low-income populations, mitigation and

enhancements measures that will be taken and all offsetting benefits to

the affected minority and low-income populations may be taken into

account, as well as the design, comparative impacts, and the relevant

number of similar existing system elements in non-minority and non-low-

income areas.

c. The Operating Administrators and other responsible DOT officials

will ensure that any of their respective programs, policies or

activities that will have a disproportionately high and adverse effect

on minority populations or low-income populations will only be carried

out if further mitigation measures or alternatives that would avoid or

reduce the disproportionately high and adverse effect are not

practicable. In determining whether a mitigation measure or an

alternative is ``practicable,'' the social, economic (including costs)

and environmental effects of avoiding or mitigating the adverse effects

will be taken into account.

d. Operating Administrators and other responsible DOT officials

will also ensure that any of their respective programs, policies or

activities that will have a disproportionately high and adverse effect

on populations protected by Title VI (``protected populations'') will

only be carried out if:

(1) a substantial need for the program, policy or activity exists,

based on the overall public interest; and

(2) alternatives that would have less adverse effects on protected

populations (and that still satisfy the need identified in subparagraph

(1) above), either (i) would have other adverse social, economic,

environmental or human health impacts that are more severe, or (ii)

would involve increased costs of extraordinary magnitude.

e. DOT's responsibilities under Title VI and related statutes and

regulations are not limited by this paragraph, nor does this paragraph

limit or preclude claims by individuals or groups of people with

respect to any DOT programs, policies, or activities under these

authorities. Nothing in this Order adds to or reduces existing Title VI

due process mechanisms.

f. The findings, determinations and/or demonstration made in

accordance with this section must be appropriately documented, normally

in the environmental impact statement or other NEPA document prepared

for the program, policy or activity, or in other appropriate planning

or program documentation.

Appendix

1. Definitions

The following terms where used in this Order shall have the

following meanings *:

a. DOT means the Office of the Secretary, DOT operating

administrations, and all other DOT components.

b. Low-Income means a person whose median household income is at or

below the Department of Health and Human Services poverty guidelines.

c. Minority means a person who is:

(1) Black (a person having origins in any of the black racial

groups of Africa);

(2) Hispanic (a person of Mexican, Puerto Rican, Cuban, Central or

South American, or other Spanish culture or origin, regardless of

race);

(3) Asian American (a person having origins in any of the original

peoples of the Far East, Southeast Asia, the Indian subcontinent, or

the Pacific Islands); or

(4) American Indian and Alaskan Native (a person having origins in

any of the original people of North America and who maintains cultural

identification through tribal affiliation or community recognition).

d. Low-Income Population means any readily identifiable group of

low-income persons who live in geographic proximity, and, if

circumstances warrant, geographically dispersed/transient persons (such

as migrant workers or Native Americans) who will be similarly affected

by a proposed DOT program, policy or activity.

e. Minority Population means any readily identifiable groups of

minority persons who live in geographic proximity, and if circumstances

warrant, geographically dispersed/transient persons (such as migrant

workers or Native Americans) who will be similarly affected by a

proposed DOT program, policy or activity.

f. Adverse effects means the totality of significant individual or

cumulative

[[Page 18381]]

human health or environmental effects, including interrelated social

and economic effects, which may include, but are not limited to: bodily

impairment, infirmity, illness or death; air, noise, and water

pollution and soil contamination; destruction or disruption of man-made

or natural resources; destruction or diminution of aesthetic values;

destruction or disruption of community cohesion or a community's

economic vitality; destruction or disruption of the availability of

public and private facilities and services; vibration; adverse

employment effects; displacement of persons, businesses, farms, or

nonprofit organizations; increased traffic congestion, isolation,

exclusion or separation of minority or low-income individuals within a

given community or from the broader community; and the denial of,

reduction in, or significant delay in the receipt of, benefits of DOT

programs, policies, or activities.

g. Disproportionately high and adverse effect on minority and low-

income populations means an adverse effect that:

(1) is predominately borne by a minority population and/or a low-

income population, or

(2) will be suffered by the minority population and/or low-income

population and is appreciably more severe or greater in magnitude than

the adverse effect that will be suffered by the non-minority population

and/or non-low-income population.

h. Programs, policies, and/or activities means all projects,

programs, policies, and activities that affect human health or the

environment, and which are undertaken or approved by DOT. These

include, but are not limited to, permits, licenses, and financial

assistance provided by DOT. Interrelated projects within a system may

be considered to be a single project, program, policy or activity for

purposes of this Order.

i. Regulations and guidance means regulations, programs, policies,

guidance, and procedures promulgated, issued, or approved by DOT.

* These definitions are intended to be consistent with the draft

definitions for E.O. 12898 that have been issued by the Council on

Environmental Quality and the Environmental Protection Agency. To

the extent that these definitions vary from the CEQ and EPA draft

definitions, they reflect further refinements deemed necessary to

tailor the definitions to fit within the context of the DOT program.

Federico F. Pena,

Secretary of Transportation.

[FR Doc. 97-9684 Filed 4-14-97; 8:45 am]

BILLING CODE 4910-62-P