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7 VI.38 The order provides that "each operating admini- human health impacts that are more severe, or (ii) would 45 stration shall determine the most effective and efficient involve increased costs of extraordinary magnitude. (em- way of integrating the processes and objectives" of the phasis added) USDOT order.39 The order directs that "[p]lanning and Furthermore, administrators and officials must programming activities that have the potential to have [E]nsure that any of their respective programs, policies or a disproportionately high and adverse effect on human activities that will have a disproportionately high and ad- health or the environment shall include explicit consid- verse effect on minority populations or low-income popu- eration of the effects on minority populations and low- lations will only be carried out if further mitigation meas- income populations."40 The order requires that all stat- ures or alternatives that would avoid or reduce the utes governing USDOT operations must be adminis- disproportionately high and adverse effect are not practi- tered "so as to identify and avoid discrimination and cable. In determining whether a mitigation measure or an alternative is "practicable,'' the social, economic (includ- avoid disproportionately high and adverse effects on ing costs) and environmental effects of avoiding or miti- minority populations and low-income populations," for 46 gating the adverse effects will be taken into account. example, by proposing measures to avoid, minimize, or (emphasis added) mitigate such effects and by considering alternatives.41 The public is to have access to information concerning Thus, the DOT Order does not preclude adverse ef- the environmental impacts of programs, policies, and fects from taking place when "further mitigation meas- actions. 42 ures or alternatives...are not practicable."47 As used in the order, the term "adverse effects" E. Guidance Provided by FTA Title VI Circular means, in part, "the totality of significant individual or cumulative human health or environmental effects."43 (2007) for Recipients and Subrecipients of FTA The phrase Financial Assistance Regarding Compliance with [D]isproportionately high and adverse effect on minority Title VI and Integration of the USDOT Order as and low-income populations means an adverse effect that: Well as Policy Guidance Concerning Limited- English-Proficient Persons (1) is predominately borne by a minority population and/or a low-income population, or 1. Purpose of the Circular (2) will be suffered by the minority population and/or low- On April 13, 2007, final notice48 was given of FTA's income population and is appreciably more severe or greater in magnitude than the adverse effect that will be Title VI Circular entitled "Title VI and Title VI suffered by the non-minority population and/or non-low- Dependent Guidelines for Federal Transit Administra- 49 income population. 44 tion Recipients." The circular supersedes one dated May 26, 1988. The order requires The purpose of the 2007 FTA Title VI Circular is to Operating Administrators and other responsible DOT of- provide recipients and subrecipients of FTA financial ficials [to] ensure that any of their respective programs, assistance with guidance regarding their compliance policies or activities that will have a disproportionately high and adverse effect on populations protected by Title with Title VI regulations, 49 C.F.R. Part 21, and on how VI ("protected populations'') will only be carried out if: to integrate into their programs the DOT's Order on Environmental Justice, Order 5610.2, and the USDOT (1) a substantial need for the program, policy or activity Policy Guidance Concerning Recipients' Responsibilities exists, based on the overall public interest; and 50 to Limited English Proficient Persons. Every applicant (2) alternatives that would have less adverse effects on for FTA financial assistance must certify that it will protected populations (and that still satisfy the need identified in subparagraph (1) above), either (i) would have other adverse social, economic, environmental or 45 Id. at 18380 ¶ 8(d). 46 38 Id. ¶ 8(c). Id. at 18379 ¶ 4. 47 39 Id. Id. ¶ 5(a). 48 40 72 Fed. Reg. vol. 18732 (Apr. 13, 2007). Id. ¶ 5(b)(1). 49 41 See FTA C 4702.1A (May 13, 2007), hereinafter cited as Id. at 18380 ¶¶ 7(c)(2) and (3). "FTA Title VI Circular," link is accessible at 42 Id. at 18379 ¶ 5(b)(2). The order provides that the DOT http://www.fta.dot.gov/laws/circulars/leg_reg_5956.html (Last will administer its programs, policies, and activities "so as to visited Sept. 9, 2010). identify, early in the development of the program, policy or 50 Policy Guidance Concerning Recipients' Responsibilities activity, the risk of discrimination so that positive corrective to Limited English Proficient ("LEP") Persons, 70 Fed. Reg. action can be taken." Id. at 18380 ¶ 7. See also, id. 7(b)(1). 74087 (Dec. 14, 2005). Key terms are defined in the 2007 FTA 43 Id. at 1838081 (App.) ¶ 1(f). Circular, including discrimination, disparate impact, disparate 44 Id. ¶¶ 1(g)(1) and (2). treatment, and minority persons.
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8 comply with Title VI.51 First-time applicants must pro- Chapter V of the Circular sets forth the require- vide information regarding their history of compliance ments for recipients serving large urbanized areas, i.e., with Title VI if they have received funding from an- 200,000 people or greater under 49 U.S.C. § 5307.61 A other federal agency.52 recipient must collect demographic data "showing the extent to which members of minority groups are benefi- 2. Provisions in the FTA Title VI Circular Regarding ciaries of programs receiving Federal financial assis- Compliance with Title VI When Reducing Service or tance"62 and "adopt quantitative system-wide service Increasing Fares standards necessary to guard against discriminatory Preliminarily it may be noted that recipients must service design or operations decisions."63 A recipient 53 file a compliance report every 3 years. Metropolitan must "adopt system-wide service policies necessary to planning organizations (MPO) that are direct recipients guard against service design and operational policies 64 of FTA funds must do so every 4 years.54 In addition to that have disparate impacts." As part of its Title VI the recipient, a state department of transportation compliance, a recipient must "evaluate significant sys- (DOT) must certify every 3 years its compliance with tem-wide service and fare changes and proposed im- 55 Title VI. MPOs who are direct recipients of FTA report provements at the planning and programming stages to to the FTA as provided in Chapter II, otherwise to their determine whether those changes have a discriminatory direct recipient, for example, the state DOT.56 Finally, impact."65 "[T]his requirement applies to `major service the circular describes how FTA will respond to Title VI changes' only. The recipient should have established discrimination complaints filed with the FTA against a guidelines or thresholds for what it considers a `major' recipient or subrecipient of FTA funds and sets forth change to be. Often, this is defined as a numerical stan- FTA's procedures when FTA determines that a recipi- dard, such as a change that affects 25 percent of service ent is not in compliance with Title VI.57 hours of a route."66 Several provisions of the circular address the quality The FTA encourages the evaluation of the impacts of or level of service.58 In the Circular, the term "adverse proposed service and fare changes by assessing their effect" is defined broadly and includes "destruction or effects on minority and low-income populations.67 For disruption of the availability of public and private facili- service "changes that would reduce or expand hours ties and services" and "the denial of, reduction in, or and days of service, the recipient should analyze any significant delay in the receipt of benefits of DOT pro- available information generated from ridership surveys grams, policies, or activities."59 that indicates whether minority and low-income riders Chapter IV of the FTA circular sets forth the general are more likely to use the service during the hours requirements and guidelines that recipients must follow and/or days that would be eliminated."68 to assure that they are Title VIcompliant. Various Ti- Second, in regard to the evaluation of service and tle VI assurances are required to be provided as part of fare changes, the recipient must "[a]ssess the alterna- 69 a transit agency's annual Certification and Assurance tives available for people affected...." Thus, in regard submission to FTA. Assurances must be given regard- to service changes "the recipient should analyze what, if ing the recipient's development of Title VI complaint any, alternative transit modes, fare payment types, or procedures; the recording of Title VI investigations, fare payment media are available for people affected by complaints, and law suits; the notification by various the fare change. The analysis should compare the fares means of beneficiaries of their protection under Title paid under the change with fares that would be paid 70 VI; and the preparation and submission of a Title VI through available alternatives." A recipient must program. 60 "[d]etermine which, if any[,] of the proposals under con- sideration would have a disproportionately high and 51 FTA Title VI Circular, link is accessible at 61 http://www.fta.dot.gov/laws/circulars/leg_reg_5956.html, ch. Id. at ch. V-1V-9. III-1 ¶ 1. 62 Id. at ch. V-1 ¶ 1. There are three options for doing so: the 52 Id. ¶ 2. preparation of demographic and service profile maps and 53 Id. at ch. V-9 ¶ 6. charts, the use of a survey to collect information regarding the 54 Id. at ch. II-2 ¶ 4. recipient's ridership, or the use of a locally developed alterna- 55 tive meeting the "expectations" of 49 U.S.C. § 21.5(b)(2) and Id. at ch. VI-1, VI-3 ¶ 5. The state DOT must have "an (7). Id. at ch. V-1V-3 ¶ 1(a)-(c). analytic basis in place," such as a demographic profile of the 63 state, a "state-wide transportation planning process that iden- Id. at ch. V-3 ¶ 2. 64 tifies the needs of low-income and minority populations," and a Id. at ch. V-4 ¶ 3. 65 "process that identifies the benefits and burdens of the State's Id. at ch. V-5 ¶ 4. transportation system for different socioeconomic groups...." 66 Id. Id. at V-1 ¶ 1(a)(c). 67 Id. at ch. V-6 ¶ 4(a)(1). The Circular states that recipients 56 See id. at ch. VII. may choose to develop their own procedures as well. See id. at 57 Id. at ch. VIII, ch. IX, and ch. X. ch. V-7 ¶ 4(b). 58 68 See, e.g., ch. II-1 ¶ 1(a). Id. at ch. V-6 ¶ 4(a)(4). 59 69 See id. at ch. II-3 ¶ 6(a). Id. ¶ 4(a)(2) 60 70 Id. at ch. IV-1IV-3. Id. ¶ 4(a)(2)(a).