DATE: February 10, 2009


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


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


cc:    Dorothy Dugger, General Manager, BART
    Dorval Carter, Jr., Chief Counsel, Federal Transit Administration
    Amber Ontiveros, Equal Opportunity Specialist