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Overview of Final Circular 4702.1B
Title VI Requirements and Guidelines for Recipients
February 2013
Title VI
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Prohibits
discrimination on the
basis of race, color,
or national origin in
Federally funded
programs and
activities
EJ and T6 • EJ
– Executive Order
– Applies to Federal
agencies
– Recipients facilitate
FTA compliance
with E.O.
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• Title VI
– Statute
– Applies to recipients
– FTA oversees recipients’ compliance with Title VI regulations
General Requirements • The Title VI circular applies to all grantees:
– Transit agencies
– MPOs
– State DOTs
– Recipients of special funds such as TIGER and Urban Circulator grants
– Subrecipients
Requirements for ALL Recipients Eight elements contained in every Title VI Program:
Notice of Rights under Title VI
How to File a Complaint, copy of complaint form
List of Title VI investigations, complaints or lawsuits
Public Participation Plan
LEP Plan
Racial Breakdown of Non-elected Advisory Councils
Narrative Describing Subrecipient Monitoring
Board of Directors resolution or meeting minutes
demonstrating the board approved the Title VI Program
Demand Response Providers • Providers of demand
response service
responsible only for
Chapter 3 requirements
• Providers of public
transportation that
operate fixed route and
demand response
service, or only fixed
route service, are
responsible for the
reporting requirements
in this chapter, but these
requirements only apply
to fixed route service.
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Requirements for Fixed Route Transit Providers
Service and Fare Equity Analyses • Only section where low-income is included
• Clearly defines when to do a Title VI analysis and when to do a low-income analysis
• Requires recipients to develop major service change policy, disparate impact policy, disproportionate burden policy, and evaluate adverse effects based on degree of impact
• Recipients may use population of service area or ridership for comparisons
Fare Equity Analysis • Applies to all fare changes
– Regardless of amount
– Regardless whether increase or decrease
• Evaluate effect on low-income population and Title VI protected population
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Fare Equity Analysis Exceptions • “Spare the air days”
• Temporary fare reductions
• Promotional fare reductions
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Final Circular 4703.1 Environmental Justice Policy Guidance for FTA Recipients
January 2013
Principles of Environmental Justice • To avoid, minimize, or mitigate disproportionately high and
adverse human health and environmental effects, including
social and economic effects, on minority populations and low-
income populations.
• To ensure the full and fair participation by all potentially
affected communities in the
transportation decision-making process.
• To prevent the denial of, reduction in,
or significant delay in the receipt of
benefits by minority and
low-income populations.
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Conducting an Analysis
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• Know Your Community by analyzing demographic data
Step 1
• Develop Public Engagement Plan that responds to community
Step 2
• Consider Proposed Project & Likely Adverse Effects and Benefits
Step 3
• Select alternative, incorporate mitigation as needed
Step 4
Disproportionately High and Adverse Effects
• Effects
– Predominantly borne by an EJ population, or
– Appreciably more severe than suffered by the non-EJ
population
• Take into consideration mitigation and enhancement
measures
• Based on totality of the circumstances (burdens and
benefits)
• Reflects community input
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Effects Borne By EJ Population? Questions to consider
• Whether the adverse effects on EJ populations
exceed those borne by non-EJ populations?
• Whether cumulative or indirect effects would
adversely affect an EJ population?
• Whether mitigation and enhancement measures will
be taken for EJ and non-EJ populations?
• Whether there are off-setting benefits to EJ
populations as compared to non-EJ populations?
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What about benefits? • Direct user benefits
• Improved traffic circulation
• Direct employment (new jobs)
• Redevelopment opportunities
• Improved access to jobs within
the corridor
• Improved access to retail,
entertainment, restaurant, and
other non-work related
establishments
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Determine Mitigation
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Avoid
• Alternative location
• Revise design/ Reconfigure facility or site
Minimize
• Limitations during construction (e.g. night work, construction hours)
• Considerations during operations (e.g. limit operational periods)
Mitigate
• Measures (e.g. sound walls, aesthetic treatments, etc.)
Public Outreach and Participation • Reach out to minority and low-
income communities
• Contact social agencies and
private organizations
• Provide opportunities for
public input in addition to
traditional open houses
• Advertise in target publications
and community newsletters,
other than in English
• Follow-up on suggestions
gathered during public
outreach activities.
• Make reasonable efforts to
reach those affected by the
proposed action
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Public Engagement
Community Advocates
Community Advisory Councils
Community Leaders
Non-traditional
Public Engagement
Informal Group
Meetings
Digital Media
(Facebook, Twitter, email)
Direct Mail Community Led Events
Partnership With
Community Groups
WHO
HOW
Transit Considerations in Planning • Transit providers connect their studies and
research on transit ridership and demand to
Regional and Statewide planning to best inform
the transit element of multi-modal plans
• Transit Development Plans fit into Regional and
statewide plans
• Engage EJ populations on issues of future transit
service, especially if reductions are possible
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Adapting EJ Analysis to NEPA
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Environmental review is required for all
Federally-funded projects and includes:
• Reviewing important adverse effects of the
project to determine whether those adverse
effects are significant;
• Determining whether adverse effects can be
avoided, minimized, or mitigated; and,
• Assessing the Project’s benefits versus its
burdens on the environment.
Practice Pointers • In EAs and EIS’s, environmental justice should be
discussed in its own chapter
• Your EJ analysis should be consistent with the rest of
the NEPA analysis
• Benefits of project should be more than just “EJ
populations will benefit from more transit options.”
• What if my study area includes a majority EJ
population?
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– “Indeed, compliance with Title VI is especially
important when launching service or fare changes
that may be necessitated by financial difficulties.”
– “An environmental justice analysis is not a
substitute for a Title VI service equity analysis
triggered by a major enhancement project; rather
the environmental justice analysis and the Title VI
analysis complement one another.”
» FTA Administrator Peter Rogoff
» (emphasis in original)
– Lack of adequate notice of the proposed action
– Notices of public hearings contain incomplete,
inaccurate or misleading information
– Failure of decision-making body to meaningfully
consider public comments
– Failure of decision-making body to consider feasible
alternatives
– Disparate impact--providing more funding to a
particular mode (e.g., rail vs. bus)
– Disparate impact—agency provides more (or less)
service to a particular geographic area(s)
– Inadequate Limited English Proficiency program
– Transit agency allegedly overstates the budget shortfall
• Plaintiffs were a class of racial minority groups who rode buses operated by AC Transit.
• Plaintiffs sued the Metropolitan Transportation Commission (the MPO), claiming that MTC’s disproportionate emphasis on rail expansion projects over bus expansion projects in its Regional Transit Expansion Plan illegally discriminated against minorities.
• The purpose of the lawsuit was to obtain more funding for AC Transit, who was not sued.
• Plaintiffs claimed that the RTEP has a disparate impact on minorities, that Bay Area rail service predominantly favored white riders and that MTC had a history of favoring rail expansion over bus expansion.
• Minorities constituted 66.3% of Bay Area bus riders
• 51.6% of rail riders are also members of racial minority groups.
• The Ninth Circuit rejected Plaintiffs’ argument that the key was the impact of the RTEP on the minority population of AC Transit bus riders or on minority bus riders.
• “MTC’s RTEP does not affect solely bus riders or solely AC Transit
riders—it affects an entire integrated transit system’s users…we
must analyze the impact of the plan on minorities in the population
base “affected…by the facially neutral policy.’”
• Plaintiff ’s statistics did not address the particular ridership of the
planned bus and rail expansions.
• “Simply because minorities represent a greater majority of bus
riders as opposed to rail riders, the rejection of a particular new
bus expansion project in favor of a new rail expansion project will
not necessarily work to the detriment of minorities. It is a real
possibility that a particular bus project supported by AC Transit--
…will serve a largely white ridership. On the other hand, a rail
• (cont’d) expansion project…may benefit minority riders more than white riders by serving areas with high concentrations of minorities, and integrating them more fully into the regional rail system. In fact, although AC Transit’s ridership may have a higher percentage of minorities, BART annually carries over two million more minority riders than AC Transit. It is entirely plausible that an RTEP with a heavy emphasis on rail could significantly benefit Bay Area minorities. However, a court simply could not determine from Plaintiffs’ statistical evidence whether the Projects in the RTEP will benefit or harm the Bay Area’s minority transit riders.”
• Plaintiffs failed to provide statistical evidence that the RTEP would have an adverse effect on minorities.
• MTA contended that it had a $2.8 billion budget shortfall.
• Plaintiff ’s contended that MTA’s notices of public hearings contained incomplete, inaccurate and misleading information, and thus stifled public discussion of options for closing MTA’s budget gaps.
• Plaintiff ’s contended that the budget shortfall was less than $2.8 billion and that the notices discouraged persons and government leaders from appearing at public hearings to suggest alternatives to the fare and token increases and token booth closings ultimately adopted by MTA.
• The trial court agreed that the legal notices were technically compliant with applicable legal requirements, but nonetheless sides with Plaintiffs and ordered a roll back of the fare increases and token booth closings. MTA was ordered to reimburse the overcharged fares and tolls.
• The appellate court sides with MTA, and dismissed the lawsuit.
• The appellate court ruled that the legal notices complied with applicable statutory and regulatory requirements, and that it was undisputed that a very significant budget shortfall existed.
• Since the law places the ultimate decision on how to balance MTA’s budget within MTA’s judgment, a direct attack on those decisions is not possible.
• The statutes provide very little as to the content of the legal notices, and nothing as to the amount or kind of information as to MTA’s budget processes or rationales that must be provided to the public. MTA met the statutory requirements. It is not to any court to engraft additional requirements onto those the Legislature determined are appropriate.”
• While from the public’s perspective greater transparency as to MTA’s budgeting processes may be desirable and may foster more robust public debate, “such requirements would impose additional administrative burdens and costs.” The Legislature has determined what is required; any changes are a political decision.
• This case was decided under a section of the Federal Transit Act that has since been repealed.
• MARTA was legally required to balance its budget. To do so, it raised fares.
• The City of Atlanta claimed that because of conflicts between state and local law, MARTA had no other choice but to raise fares.
• The Fifth Circuit found that there was no unavoidable conflict between federal and state law.
• Budgetary limitations, total receipts and costs may necessitate a fare increase. Yet, MARTA retained the discretion to avoid any fare increase by reducing services or other expenses. MARTA was not precluded from considering environmental, social and economic impacts of a fare increase.
• Embrace public participation. Periodically review and update public participation protocols, including LEP program.
• Give notice of proposed fare and service changes in many formats and mediums.
• At the outset of planning for a proposed change, consider the agency’s Limited English Proficiency (LEP) program.
• Utilize your citizen’s advisory group early on, including as a means of determining how notice should be given and locations for public hearings and public forums.
• Realize that there are lawyers who are ready, willing and able to challenge the ultimate decision.
• Ensure that written comments and comments received electronically are considered.
• Seriously consider all meaningful (non-frivolous) comments
received in the public participation process.
• Educate board members and other decision-makers
• Ensure that written comments (hard copy and electronic) are
included in the consideration of public comments.
• Do not always hold public hearings and forums in the same
location.
• Develop documentation of sending legal notices to advocacy
groups and special interest groups.
• Consider a program of fare increases and service changes
implemented in phases over time.