[Federal Register Volume 62, Number 72 (Tuesday, April 15, 1997)]
[Notices]
[Pages 18377-18381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9684]


=======================================================================
-----------------------------------------------------------------------

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