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[Federal Register Volume 77, Number 91 (Thursday, May 10, 2012)]
[Notices]
[Pages 27534-27537]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11309]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary of Transportation

[Docket No. DOT-OST-2012-0044]

Department of Transportation Updated Environmental Justice Order 
5610.2(a)

AGENCY: Office of the Secretary of Transportation, DOT.

ACTION: Final DOT Environmental Justice Order.

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SUMMARY: The Department of Transportation (the Department or DOT) is 
issuing an update to Departmental Order 5610.2(a) (Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations). This Order updates the Department's original 
Environmental Justice Order, which was published April 15, 1997. The 
Order continues to be a key component of the Department's strategy to 
promote the principles of environmental justice in all Departmental 
programs, policies, and activities.
    DOT Order 5610.2(a) sets forth the DOT policy to consider 
environmental justice principles in all (DOT) programs, policies, and 
activities. It describes how the objectives of environmental justice 
will be integrated into planning and programming, rulemaking, and 
policy formulation. The Order sets forth steps to prevent 
disproportionately high and adverse effects to minority or low-income 
populations through Title VI analyses and environmental justice 
analyses conducted as part of Federal transportation planning and NEPA 
provisions. It also describes the specific measures to be taken to 
address instances of disproportionately high and adverse effects and 
sets forth relevant definitions.
    This updated Order reaffirms DOT's commitment to environmental 
justice and clarifies certain aspects of the original Order, including 
the definitions of ``minority'' populations in compliance with the 
Office of Management and Budget's (OMB) Revisions to the Standards for 
the Classification of Federal Data on Race and Ethnicity of October 30, 
1997. The revisions clarify the distinction between a Title VI analysis 
and an environmental justice analysis conducted as part of a NEPA 
review, and affirm the importance of considering environmental justice 
principles as part of early planning activities in order to avoid 
disproportionately high and adverse effects. The updated Order 
maintains the original Orders general framework and procedures and 
DOT's commitment to promoting the principles of environmental justice 
in all DOT programs, policies, and activities.
    This Order is effective upon its date of issuance.

FOR FURTHER INFORMATION CONTACT: Beth Osborne, Deputy Assistant 
Secretary for Transportation Policy, telephone (202) 366-8979, or 
EJ@dot.gov, U.S. Department of Transportation, 1200 New Jersey Avenue 
SE., Washington, DC 20590.

Order 5610.2(a)

Subject: Department of Transportation Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

1. Purpose and Authority
    a. This Order updates and clarifies environmental justice 
procedures for the Department in response to the Memorandum of 
Understanding on Environmental Justice signed by heads of Federal 
agencies on August 4, 2011, DOT's revised environmental justice 
strategy issued on March 2, 2012, and Executive Order 12898, Federal 
Actions to Address Environmental Justice in Minority Populations and 
Low-Income Populations, dated February 11, 1994.
    The Department's original Environmental Justice Order, issued April 
15, 1997, was a key component of the Department's original strategy and 
established procedures to be used by DOT to comply with Executive Order 
12898. This revised Order continues to be a key component of DOT's 
environmental justice strategy. It updates and clarifies certain 
aspects of the original Order while maintaining its general framework 
and procedures and DOT's commitment to promoting the principles of 
environmental justice in all DOT programs, policies, and activities. 
Relevant definitions are in the Appendix.
    b. Executive Order 12898 requires each Federal agency, to the 
greatest

[[Page 27535]]

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 DOT 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, 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 Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (Pub. L. 109-59; SAFETEA-
LU) and other DOT statutes, regulations and guidance that address or 
affect infrastructure planning and decision-making; 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.
    b. In undertaking the integration with existing operations 
described in paragraph 5a, DOT shall observe the following principles:
    (1) Environmental justice principles apply to planning and 
programming activities, and early planning activities are a critical 
means to avoid disproportionately high and adverse effects in future 
programs, policies, and activities. Planning and programming activities 
for policies, programs, and 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 that 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
    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 activity of DOT because of race, color, or national origin. While 
Title VI is a key tool for agencies to use to achieve environmental 
justice goals, it is important to recognize that Title VI imposes 
statutory and regulatory requirements that are broader in scope than 
environmental justice. There may be some overlap between environmental 
justice and Title VI analyses; however, engaging in environmental 
justice analysis under Federal transportation planning and NEPA 
provisions will not necessarily satisfy Title VI requirements. 
Similarly, a Title VI analysis would not necessarily satisfy 
environmental justice requirements,

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since Title VI does not include low-income populations. Moreover, Title 
VI applies to all Federally-funded projects and activities, not solely 
those which may have adverse human health or environmental effects on 
communities.
    b. It is DOT's policy to actively administer and monitor its 
operations and decision-making to assure that nondiscrimination and the 
prevention of disproportionately high and adverse effects are 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, SAFETEA-LU 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 and disproportionately high and adverse 
effects 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, and 
income level;
--Present and proposed membership by race, color, or national origin, 
in any planning or advisory body that is part of the program, policy or 
activity.

    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, or 
activities for which they are responsible will have an adverse human 
health or environmental effect on minority and low-income populations 
and whether that adverse effect 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 implemented 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. The Operating Administrations 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 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 
d(1) above), either
    (a) Would have other adverse social, economic, environmental or 
human health impacts that are severe; or
    (b) 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 or Latino: 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, or the Indian 
subcontinent;
    (4) American Indian and Alaskan Native: A person having origins 
in any of the original people of North America, South America 
(including Central America), and who maintains cultural 
identification through tribal affiliation or community recognition; 
or
    (5) Native Hawaiian and Other Pacific Islander: People having 
origins in any of the original peoples of Hawaii, Guam, Samoa, or 
other Pacific Islands.
    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

[[Page 27537]]

similarly affected by a proposed DOT program, policy or activity.
    f. Adverse effects means the totality of significant individual 
or cumulative 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 mean 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.

    Dated: May 2, 2012.
Ray LaHood,
Secretary of Transportation.
[FR Doc. 2012-11309 Filed 5-9-12; 8:45 am]
BILLING CODE 4910-9X-P
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