METROPOLITAN TRANSPORTATION COMMISSION
DATE: February 10, 2009
Memorandum
TO: Commission
FR: Executive Director
RE: Oakland Airport Connector Update
A few days after our lengthy January 27th Commission meeting, BART
submitted an initial draft "action plan" to the Federal Transit
Administration (FTA) that outlines a scope of work and schedule for
correcting deficiencies in BART's compliance with Title VI of the Civil
Rights Act, both as an agency in general terms as well as specifically
in connection with the Oakland Airport Connector (OAC) project. BART
has been in regular contact with FTA since the submission of the
initial draft, but as of this date has received no assurance that a
final action plan will be approved by the February 16th deadline
established by the Commission.
As a reminder, there are three separate sources of federal funding in
BART's financial plan to construct the OAC project: $70 million in
American Recovery and Reinvestment Act (ARRA) funds approved by MTC in
February 2009, $25 million in New Starts funds, and an approximately
$80 million cash flow loan for which BART has applied under the terms
of the Transportation Infrastructure Finance and Improvement Act
(TIFIA). Although only the ARRA funds face a statutory obligation
deadline of March 5, 2010, 1 think it is fair to characterize all three
of these federal funding sources as "at risk" if the issue of BART's
Title VI compliance cannot be favorably resolved in the near future. A
summary of the OAC financial plan is contained in Attachment 1.
If BART is able to secure FTA approval of its Title VI action plan by
the February 16 deadline, I continue to recommend that the
Commission retain its $70 million ARRA commitment to the OAC
project, even though a failure ultimately to resolve
BART's Title VI issues after the March 5th statutory obligation
deadline could result in a loss of these ARRA
funds to the region and the State of California. As noted at your
meeting last month, I think this risk is real, but manageable. If
FTA has not approved the action plan by next week, I believe the
Commission should redirect the ARRA funds to the Tier 2 list of
back-up projects so that we can attempt to obligate the $70 million to
those projects by the March 5th deadline.
For your information, the Tier 2 list is contained in Attachment 2. To
cover both bases, we will prepare two alternate Commission
resolutions for your consideration at the special meeting next
week.
In the meantime, last week MTC received another letter from FTA
requesting information about our agency's Title VI compliance
procedures, especially as they relate to oversight of the region's
transit operators that receive federal support through our programming
and allocations process. A copy of that letter is contained in
Attachment 3. As requested, we will be responding to this new FTA
inquiry within 30 days.
If you have any questions about any of these matters in advance of the
February 17th special Commission meeting, please do not hesitate to
contact Ann Flemer or me. Please note that the special meeting is
scheduled for 1:30 p.m. to accommodate a conflict with another regional
agency board meeting in the morning.
Attachments (RAFT members, Attachment 2 for Plan B is not reproduced
here)
J:\COMMETTE\Commission\20l0\02 - February 2010\02 - Special
February 2010\3.OAC meniodoc
###################
Attachment 1
OAC Financial Plan
Source $Millions
ACTIA 89
Port of Oakland 29 (1)
STIP 21
Tolls 146
Proposition lB 33
ARRA 70
New Starts 25
TIFIA Loan 79
Total 492
(1) Total Port of Oakland funding commitment is $40
million, with remainder available later to help repay TIFIA loan.
###################
U.S. Department of Transportation
Federal Transit Administration
Headquarters
5" Floor - East Bldg, TCR
1200 New Jersey Aye, S.E.
Washington, D.C. 20590
February 3, 2010
Steve Heminger
Executive Director
Metropolitan Transportation Commission
Joseph P. Bort MetroCenter
101 Eighth Street
Oakland, CA 94607
Dear Mr. Heminger:
This letter is in response to a complaint received in our office in
September 2009 by Public Advocates on behalf of Urban Habitat Program,
Transform, and Genesis against the Bay Area Rapid Transit District
("BART") alleging violations of Title VI of the Civil Rights Act of
1964.
The complaint alleges that BART did not conduct a service equity
analysis of its Oakland Airport Connector project. Also, noted in the
complaint sent to FTA, on July 8, 2009, Mr. Bob Allen of Urban Habitat
spoke during a public meeting before Metropolitan Transportation
Commission (MTC) staff advising of BART's "failure to produce the
required equity ana ysis for this project." As a follow up to this
public meeting a. letter was sent to the Programming and Allocation
Committee of MTC, dated July 8, 2009, by Mr. Allen outlining the
service equity requirements. In a letter dated July 14, 2009, BART's
staff attorney sent a letter to MTC's general counsel indicating that
"BART has a policy in place for the evaluation of fare and service
changes that has been approved by the FTA through every Triennial
audit."
The Federal Transit Administration (FTA) Office of Civil Rights is
responsible for civil rights compliance and monitoring, which includes
ensuring that providers of public transportation properly implement
Title VI; the Department of Transportation regulations, 49 CFR Part 21,
"Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation Effectuation of Title VI of the Civil Rights Act of
1964"; and ETA Circular 4702. 1A, "Title VI and Title VI-Dependent
Guidelines for Federal Transit Administration Recipients."
From December 15 to 17, 2009 ,FTA conducted an on-site compliance
review of BART's Title VI program. Preliminary compliance review
findings indicate that BART had not conducted the necessary service
equity analysis for this project or fare equity analysis.
As you are aware, BART is a subrecipient of the MTC, and, therefore,
MTC is responsible for ensuring its subrecipeints comply with Title VI,
the DOT Title VI regulations, and FTA Circular 4702. 1A. Your agency is
responsible for documenting a process that ensures that all MTC
subrecipients are in compliance with the reporting requirements of FTA
C 4702. 1A.
The fact that BART has not conducted the necessary service equity
analysis for the OAC project or fare equity analysis raises concerns
that your agency does not have procedures in place to monitor its
subrecipients. In order to determine whether MTC is in compliance with
Title VI, FI'A's Office of Civil Rights requests MTC send FTA the
following information within 30 days of receipt of this letter:
a list of all MTC subrecipients; and
MTC's procedures for monitoring Title VI compliance of its
subrecipients.
FTA will determine whether the information MTC provides meets Title VI
requirements. If you have any questions regarding this request for
information, please contact Amber Ontiveros at 202-366-5130 or at her
electronic mail address: amber otiveros @dot.gov
Sincerely,
cc: Dorothy Dugger, General Manager, BART
Dorval Carter, Jr., Chief Counsel, Federal Transit
Administration
Amber Ontiveros, Equal Opportunity Specialist