[Federal Register Volume 60, Number 125 (Thursday, June 29, 1995)]
[Notices]
[Pages 33899-33903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15666]



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DEPARTMENT OF TRANSPORTATION
[OST Docket No. 50125]


Department of Transportation Proposed Order to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

AGENCY: Office of the Secretary: Departmental Office of Civil Rights 
and Office of the Assistant Secretary for Transportation Policy; 
Department of Transportation (DOT).

ACTION: Request for comments on U.S. Department of Transportation 
proposed DOT Order on environmental justice.

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SUMMARY: This Notice proposes a DOT Order that would be used by DOT in 
complying with Executive Order 12898, Federal Actions to Address 
Environmental Justice in Minority and Low-Income Populations. The 
proposed Order is intended to generally describe the process that the 
Office of the Secretary and each Operating Administration must use to 
incorporate environmental justice principles into existing programs, 
policies, and activities. The proposed Order would require the Office 
of the Secretary and each Operating Administration within DOT to 
develop specific procedures to apply the DOT Order and the Executive 
Order to the programs, policies and activities which they develop or 
implement. Comments on the proposed Order are requested.

DATES: Comments should be received by August 28, 1995. Late filed 
comments will be considered to the extent practicable.

ADDRESSES: Comments should be sent to Docket Clerk, Docket 50125, 
Department of Transportation, 400 Seventh Street, SW., Room PL 401, 
Washington, D.C. 20590. To facilitate consideration of the comments, 
commenters are requested to file six copies of each submission. 
Comments will be available for inspection at this address from 9 a.m. 
to 5 p.m., Monday through Friday, except Federal holidays. Commenters 
who wish the Department to acknowledge receipt of their comments should 
include a stamped self-addressed postcard with their comments. The 
Docket Clerk will date-stamp the postcard and mail it back to the 
commenter.

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 Alyce Boyd-Stewart, 
Departmental Office of Civil Rights, (202) 366-9366, 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 on minority populations and low-income populations in their 
programs, policies and activities.
    The proposed Order is a key component of the Department's 
Environmental Justice Strategy. The proposed Order sets forth a process 
by which DOT and its Operating Administrations will integrate the goals 
of the Executive Order into its existing operations (Paragraphs 5a and 
7a). This is to be done within the framework of existing requirements, 
primarily the National Environmental Policy Act, Title VI of the Civil 
Rights Act of 1964, the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act, and other applicable statutes, regulations 
and guidance that concern planning; social, economic, or environmental 
matters; public health or welfare; or public involvement. The proposed 
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 the Order.
    The proposed Order contains a methodology for (1) identifying 
adverse impacts (2) identifying mitigation and enhancement measures 
that will be taken to avoid or offset such impacts, and (3) determining 
whether the action will have a disproportionately high and adverse 
effect on minority or low income populations (Paragraph 3 of the 
Appendix). We recognize that a determination concerning 
disproportionately high and adverse effects will require the careful 
assessment of a variety of factors, and specifically request comments 
on the methodology set forth in paragraph 3c of the Appendix to the 
proposed Order.
    If it is determined that an action will result in a 
disproportionately high and adverse effect on minority or low-income 
populations, then, under the Order, the action may not be carried out 
unless certain requirements are met. Paragraph 6 of the proposed Order 
sets forth three different options for these requirements, including: 
(1) Not allowing the action to be carried out unless further mitigation 
measures or alternatives that would avoid or reduce the 
disproportionately high and adverse effect are not practicable (Option 
A); (2) not allowing the action to be carried out unless further 
mitigation measures or 

[[Page 33900]]
alternatives that would avoid or reduce the disproportionately high and 
adverse effect are not practicable, and unless certain more stringent 
requirements are met with respect to populations protected by Title VI 
(Option B); and (3) requiring consideration of certain factors with 
respect to actions that will have a disproportionately high and adverse 
effect, including whether there is a substantial need for the action 
and whether less discriminatory alternatives would have more severe 
impacts or would involve increased costs of extraordinary magnitude, 
but not otherwise preventing the action from being carried out (Option 
C). None of these options (or any other part of this Order) would 
reduce the protections provided by Title VI or any other Federal law.

    A duty to address disproportionately high and adverse effects on 
certain populations may also be found in Title VI of the Civil Rights 
Act of 1964 and related statutes and regulations. The ability to 
require specific findings and remedial actions may differ somewhat for 
populations protected by Title VI and for low-income populations, since 
low-income persons are not a protected class under Title VI. For this 
reason, the DOT is considering including a provision in this Order 
which treats these two groups differently. This difference is seen most 
clearly in Option B. We will continue to consider DOT's authority with 
respect to low-income populations, based on the differing legal 
standards applicable to these populations.

    We are soliciting comments on the options presented in Paragraph 6 
of the proposed Order, and commenters are invited to suggest additional 
options for decisional tests or standards that would promote the goals 
of environmental justice, consistent with existing law, that DOT should 
consider. Comment is also sought on whether minority populations and 
low-income populations should be treated differently by the DOT Order.

    Following receipt of comments the DOT Order will be finalized and 
published in the Federal Register.
    Dated: June 21, 1995.
Antonio J. Califa,
Director, Departmental Office of Civil Rights.
Joseph Canny,
Deputy Assistant Secretary for Transportation Policy.
Proposed DOT Order

Subject: Department of Transportation Actions to Address Environmental 
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, 
entitled Federal Actions To Address Environmental Justice in Minority 
Populations and Low-Income Populations. Relevant definitions are in the 
appendix.
    b. The objective of this DOT Order is to set forth a process by 
which DOT and its operating administrations will integrate the goals of 
the Executive Order with existing requirements set forth in Title VI of 
the Civil Rights Act of 1964 (Title VI), the National Environmental 
Policy Act (NEPA), the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act (URA), and other applicable statutes, 
regulations and guidance that concern planning; social, economic, or 
environmental matters; public health or welfare; or public involvement.

2. Scope

    This Order applies to the Office of the Secretary, all operating 
administrations, and all other DOT components.

3. Background

    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 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, and can be achieved within the framework of 
existing laws, regulations, and guidance.

4. Data Collection and Research

    a. In complying with this Order DOT will rely upon the data 
collected (or readily available) for planning, for demonstrating 
compliance with NEPA or Title VI, or for other purposes. Consideration 
of the goals and objectives of Executive Order 12898 and this Order 
shall be an integral part of future DOT data collection and research 
activities.
    b. To the extent permitted by existing law, and whenever practical 
and appropriate, DOT shall collect, maintain, and analyze information 
on the race, color, national origin, and income level of persons 
affected by DOT programs, policies, and activities, and use such 
information in complying with this Order.

5. Identifying Adverse Impacts and Determining Whether They Have a 
Disproportionately High and Adverse Effect on Minority or Low-Income 
Populations

    a. The Office of the Secretary and each operating administration 
shall develop a process for identifying (1) adverse impacts, (2) 
mitigation and enhancement measures, and (3) disproportionately high 
and adverse effects on minority or low-income populations, using the 
methodology in the appendix. 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, as outlined in paragraph 
7.a.
    b. Actions Having a Disproportionately High and Adverse Effect on 
Minority Populations or Low-Income Populations.
    (1) If, after taking into account all mitigation and enhancement 
measures that will be taken and all offsetting benefits to the affected 
minority or low-income populations, the program, policy, or activity 
will still have an adverse impact, then DOT shall determine whether 
such adverse impact on minority populations or low-income populations 
is disproportionately high, using guidance in the appendix.
    (2) Determinations made pursuant to this paragraph shall be 
incorporated in the NEPA or other document, described in paragraph 
7.b.(3).
    (3) The NEPA or other document described in paragraph 7.b.(3) shall 
contain a description of any measures that will be taken to address the 
disproportionately high and adverse effects on minority or low-income 
populations.
    (4) This paragraph does not restrict the application of Title VI of 
the Civil Rights Act of 1964 to the program, policy, or activity, or 
otherwise limit or 

[[Page 33901]]
preclude claims by individuals or groups of people with respect to any 
DOT program, policy, or activity.

6. Actions to Address Disproportionately High and Adverse Effects.

    [The following are options for consideration with respect to 
actions to address disproportionately high and adverse effects on 
minority populations and low-income populations under the Executive 
Order.]

Option A

6. Actions to Address Disproportionately High and Adverse Effects

    (a) If it is determined pursuant to paragraph 5.b above that the 
program, policy, or activity (including all offsetting mitigation and 
enhancement measures that will be taken) will have a disproportionately 
high and adverse effect on minority or low-income populations, then the 
program, policy, or activity may not be carried out unless further 
mitigation measures or alternatives that would avoid or reduce the 
disproportionately high and adverse effect are not practicable. In 
determining whether a measure or alternative is ``practicable'', the 
social, economic (including costs) and environmental effects of 
avoiding or mitigating the adverse effects will be taken into account.
    (b) Under Title VI of the Civil Rights Act of 1964, 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. 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 program, 
policy, or activity under these authorities.

Option B

6. Actions to Address Disproportionately High and Adverse Effects

    (a) If it is determined pursuant to paragraph 5.b above that the 
program, policy, or activity (including all offsetting mitigation and 
enhancement measures that will be taken) will have a disproportionately 
high and adverse effect on minority or low-income populations, then the 
program, policy, or activity may not be carried out unless further 
mitigation measures or alternatives that would avoid or reduce the 
disproportionately high and adverse effect are not practicable. In 
determining whether a measure or alternative is ``practicable'', the 
social, economic (including costs) and environmental effects of 
avoiding or mitigating the adverse effects will be taken into account.
    (b) In addition, if the program, policy or activity will have a 
disproportionately high and adverse effect on populations protected by 
Title VI of the Civil Rights Act of 1964 (``protected populations''), 
then the program, policy or activity may not be carried out unless a 
substantial need for the program, policy or activity, based on the 
overall public interest, can be demonstrated, and
    (1) An agreement is reached with the potentially affected protected 
populations to proceed with the program, policy or activity, or
    (2) Alternatives that will have less adverse effects on protected 
populations (and still satisfy the need identified in subparagraph (b) 
above) either 
    (A) Would have other high adverse social, economic, environmental, 
or human health impacts that are more severe, or
    (B) Would involve increased costs of extraordinary magnitude.
    (c) Under Title VI of the Civil Rights Act of 1964, 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. 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 program, 
policy, or activity under these authorities.

Option C

6. Actions to Address Disproportionately High and Adverse Effects
    (a) If it is determined pursuant to paragraph 5.b above that the 
program, policy, or activity (including all offsetting mitigation and 
enhancement measures that will be taken) will have a disproportionately 
high and adverse effect on minority or low-income populations, then the 
program, policy or activity may not be carried out unless consideration 
has been given to the following factors:
    (1) Whether a substantial need for the program, policy or activity, 
based on the overall public interest, can be demonstrated, and
    (2) Whether alternatives that will have less adverse effects on 
minority or low-income populations (and still satisfy the need 
identified in subparagraph (1) above) either
    (A) Would have other high adverse social, economic, environmental, 
or human health impacts that are more severe, or
    (B) Would involve increased costs of extraordinary magnitude.
    (b) Under Title VI of the Civil Rights Act of 1964, 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. 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 program, 
policy, or activity under these authorities.

7. 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 
process and objectives of this Order with their existing regulations 
and guidance, and utilize existing authority in NEPA, Title VI, the URA 
and other statutes, regulations, and guidance that concern planning; 
social, economic, or environmental matters; public health or welfare; 
public involvement; or related matters. Within 6 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. Public input on 
any procedures developed to comply with this Order should be solicited.
    b. In undertaking the integration with existing operations 
described in paragraph 7.a., DOT shall observe the following 
principles:
    (1) Planning and programming activities, that affect human health 
or the environment, shall include consideration of such effects on 
minority populations and low-income populations. Procedures shall be 
established or expanded, as necessary, to provide meaningful 
opportunities for public involvement by minority 

[[Page 33902]]
populations and low-income populations during the planning and 
development of programs, policies, and activities (including the 
identification of potential impacts, alternatives, and mitigation 
measures).
    (2) Affirmative steps shall be taken to provide the public, 
including minority populations and low-income populations, access to 
public information concerning the human health or environmental impacts 
of programs, policies, and activities.
    (3) The assessment of the effects of actions on minority 
populations or low-income populations, that is required by this Order, 
shall be included as part of any environmental document prepared in 
accordance with NEPA. If a program, policy, or activity that DOT 
determines is subject to the assessment prescribed by this Order is not 
subject to NEPA, or for any reason such impacts are not addressed in 
the NEPA document, a separate written analysis of such impacts shall be 
prepared and made available to the public. DOT may develop simplified 
assessments to the extent appropriate. Consideration of alternatives in 
these documents shall include comparisons of the impacts of each 
alternative on minority and low-income populations.
    (4) DOT shall consider mitigation and enhancement measures to avoid 
or minimize environmental or human health impacts to minority 
populations and low-income populations in accordance with paragraph 
3.b. of the Appendix.
    c. All 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 all future DOT policy statements and 
proposals for legislation will include consideration of the provisions 
of Executive Order 12898 and this Order.

8. Ongoing DOT Responsibility

    Compliance with the Executive Order is an ongoing DOT 
responsibility. DOT will continuously monitor its programs, policies, 
and activities to ensure that potential disproportionately high and 
adverse effects on minority or low-income populations are avoided, 
minimized or mitigated in a manner consistent with this Order. The 
Department's Director of Civil Rights and the Assistant Secretary for 
Transportation Policy will have joint authority and responsibility for 
monitoring and enforcing the implementation of this Order. Nothing in 
this Order creates any right to judicial review of the compliance or 
noncompliance of DOT, its officers, employees, or any other persons, 
with this Order.

    For the Secretary of Transportation.
Appendix--Guidance for Implementing Provisions of DOT

    1. Definitions. The following terms where used in this Order 
shall have the following meanings: 1

    \1\ In the event governmentwide definitions are issued under the 
Executive Order, these definitions will be modified as necessary to 
conform to them.
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    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 
below the Department of Health and Human Services poverty 
guidelines.
    c. Minority means a person who is a citizen or lawful permanent 
resident of the United States and 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 peoples of North America, and who maintains 
cultural identification through tribal affiliation or community 
recognition).
    d. Programs, policies, and/or activities means all projects, 
programs, policies, and activities that affect human health and the 
environment, and which are undertaken or approved by DOT. These 
include (but are not limited to) permits, licenses, or financial 
assistance provided by DOT.
    e. Regulations and guidance means regulations, programs, 
policies, guidance, and procedures promulgated, issued, or approved 
by DOT.

2. References

    a. Executive Order 12898, Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations February 11, 1994, 59 Federal Register 7629.
    b. National Environmental Policy Act, 42 USC 4371.
    c. Title VI of the Civil Rights Act, 42 USC 2000(d).

3. Identifying Adverse Impacts, Mitigation and Disproportionate 
Impacts on Minority or Low-Income Populations

    a. Identifying Adverse Impacts.
    (1) As part of infrastructure planning and other developmental 
processes, DOT shall identify social, economic and environmental 
effects and determine whether such effects are likely to have 
adverse impacts on the total population and on minority or low-
income populations. In making a determination regarding adverse 
impacts, DOT shall consider both the impacts of individual projects 
and the cumulative impacts of its programs and projects on all 
affected populations and shall provide opportunities for the public, 
including members of minority populations and low-income populations 
that could be affected, to provide their input on the potential 
impact of such DOT programs, policies, and projects.
    (2) In the case of DOT programs, policies, or activities that do 
not involve infrastructure planning or developmental processes, the 
responsible DOT agency will develop a process for identifying 
adverse impacts and obtaining public input as appropriate.
    (3) In determining whether or not an action will have an adverse 
impact, consideration shall be given to individual or cumulative 
effects, as appropriate. Adverse impacts may include, but are not 
limited to: 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 service; 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 from the broader 
community; and the denial of, reduction in, or significant delay in 
the receipt of, benefits of DOT programs, policies, or activities.
    b. Identifying Mitigation and Enhancement Measures.
    (1) DOT will use its existing statutory authorities, including 
NEPA, Title VI, the URA, other crosscutting Federal requirements, 
and statutes that apply only to one or more DOT operating 
administration (for example 23 U.S.C. 109(h)), as well as related 
regulations and guidance, to develop effective mitigation and 
enhancement strategies and specific mitigation and enhancement 
measures that DOT will employ.
    (2) DOT will examine existing programs that have been developed 
to ensure opportunities for minority populations and low-income 
populations to develop specific mitigation and enhancement measures 
that address social, economic, and environmental issues, and will 
offset disproportionately high and adverse effects.
    (3) In determining whether or not there is an adverse impact, 
DOT shall take into account any offsetting mitigation and 
enhancement measures that will be taken (including those developed 
through the public involvement and community participation process), 
and any other offsetting benefits that will accrue to the affected 
minority populations or low-income populations as a result of the 
program, policy, or activity.
    (4) The following are general approaches to mitigation and 
enhancement measures that will be utilized as reasonable and 
necessary, consistent with existing law: 

[[Page 33903]]

    (a) Avoiding or minimizing adverse impacts by reducing the 
degree or magnitude of the action or its implementation.
    (b) Mitigating or eliminating adverse impacts by repairing, 
rehabilitating, or restoring the affected environment and/or 
community resource.
    (c) Reducing or eliminating adverse impacts over time by long-
term preservation and maintenance operations.
    (d) Compensating for adverse impacts by replacing adversely 
impacted resources or providing substitute resources or environments 
that enhance the affected area.
    c. Determining Whether an Action Has a Disproportionately High 
and Adverse Effect on Minority Populations or Low-Income 
Populations. An adverse impact shall be found to have a 
disproportionately high and adverse effect on low-income or minority 
populations when:
    (a) The adverse impact is predominantly borne by a minority 
population and/or a low-income population, or
    (b) The adverse impact that will be suffered by the minority 
population and/or low-income population is more severe or greater in 
magnitude than the adverse impact that will be suffered by the non-
minority population and/or non-low-income population.

[FR Doc. 95-15666 Filed 6-28-95; 8:45 am]
BILLING CODE 4910-62-P