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Statute, Regulation and Executive Orders

Statute, Regulations, and Executive Orders

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Introduction

Developing an effective public involvement/participation plan involves the identification of techniques designed to meet the needs of a given situation relating to the development of a transportation plan, program, project, or the need for public input regarding the operation and management of a transportation facility. Current Federal statutes and regulations provide general guidelines for public involvement processes and procedures. There is great flexibility available to transportation agencies in developing specific public involvement/participation plans. However, while the set of techniques for any given situation may differ depending upon such factors as demographics and identified potential impacts, the general approach to developing a public involvement/participation plan contains element that are relevant and responsive to all communities. This information is provided to help practitioners identify legal requirements related to engaging the public that were created to protect and promote good practices.  Phrases are provided from statute, regulation, and executive orders relating to different aspects of engaging the public.  To understand the broader context of those requirements, we encourage you to refer to the complete statute, regulation, or executive order. 

Accessible locations and activities

Americans with Disabilities Act (ADA), Title II, Subpart D-Program Accessibility §35.149 Discrimination prohibited

"Except as otherwise provided in §35.150, no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.".1 2

Rehabilitation Act of 1973, Section 504 provides: "No otherwise qualified individual with a disability in the United States, as defined in section 7(20) shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service."

Air Quality Conformity

"Public consultation procedures. Affected agencies making conformity determinations on transportation plans, programs, and projects shall establish a proactive public involvement process which provides opportunity for public review and comment by, at a minimum, providing reasonable public access to technical and policy information considered by the agency at the beginning of the public comment period and prior to taking formal action on a conformity determination for all transportation plans and TIPs, consistent with these requirements and those of 23 CFR 450.316(a)." 40 C.F.R. Part 93.105(e)

Early and Continuous Opportunities

Establish early and continuous public involvement opportunities... 23 CFR 450.210 (a)(1)(viii)&(ix) and 450.316 (a)(1)(vii)

Early coordination, public involvement, and project development.

"Early coordination with appropriate agencies and the public aids in determining the type of environmental review documents an action requires, the scope of the document, the level of analysis, and related environmental requirements. This involves the exchange of information from the inception of a proposal for action to preparation of the environmental review documents." 23 CFR 771.111(a)(1)

Early and continuing

"For the Federal-aid highway program: (1) Each State must have procedures approved by the FHWA to carry out a public involvement/public hearing program pursuant to 23 U.S.C. 128 and 139 and CEQ regulation. (2) State public involvement/public hearing procedures must provide for:

  1. Coordination of public involvement activities and public hearings with the entire NEPA process.
  2. Early and continuing opportunities during project development for the public to be involved in the identification of social, economic, and environmental impacts, as well as impacts associated with relocation of individuals, groups, or institutions.
  3. One or more public hearings or the opportunity for hearing(s) to be held by the State highway agency at a convenient time and place for any Federal-aid project which requires significant amounts of right-of-way, substantially changes the layout or functions of connecting roadways or of the facility being improved, has a substantial adverse impact on abutting property, otherwise has a significant social, economic, environmental or other effect, or for which the FHWA determines that a public hearing is in the public interest.
  4. Reasonable notice to the public of either a public hearing or the opportunity for a public hearing. Such notice will indicate the availability of explanatory information. The notice shall also provide information required to comply with public involvement requirements of other laws, Executive orders, and regulations.
  5. Explanation at the public hearing of the following information, as appropriate:
    1. The project's purpose, need, and consistency with the goals and objectives of any local urban planning,
    2. The project's alternatives, and major design features,
    3. The social, economic, environmental, and other impacts of the project,
    4. The relocation assistance program and the right-of-way acquisition process.
    5. The State highway agency's procedures for receiving both oral and written statements from the public.
  6. Submission to the FHWA of a transcript of each public hearing and a certification that a required hearing or hearing opportunity was offered. The transcript will be accompanied by copies of all written statements from the public, both submitted at the public hearing or during an announced period after the public hearing.
  7. An opportunity for public involvement in defining the purpose and need and the range of alternatives, for any action subject to the project development procedures in 23 U.S.C. 139.
  8. Public notice and an opportunity for public review and comment on a Section 4(f)de minimis impact finding, in accordance with 49 U.S.C. 303(d)." 23 CFR 771.111 (h)

Electronically provided information

"Make public information available in electronically accessible format and means, such as the World Wide Web..." 23 CFR 450.210 and 450.316

Electronically provided information (Federal Agencies)

Rehabilitation Act of 1973, Section 508 establishes requirements for electronic and information technology developed, maintained, procured, or used by the Federal government. Section 508 requires Federal electronic and information technology to be accessible to people with disabilities, including employees and members of the public.3

Section 508 of the Rehabilitation Act of 1973, as amended 29 U.S.C. §794 (d) Electronic and information technology (a) Requirements for Federal departments and agencies

"(1) Accessibility

  1. Development, procurement, maintenance, or use of electronic and information technology
  2. When developing, procuring, maintaining, or using electronic and information technology, each Federal department or agency, including the United States Postal Service, shall ensure, unless an undue burden would be imposed on the department or agency, that the electronic and information technology allows, regardless of the type of medium of the technology --
    1. individuals with disabilities who are Federal employees to have access to and use of information and data that is comparable to the access to and use of the information and data by Federal employees who are not individuals with disabilities; and
    2. individuals with disabilities who are members of the public seeking information or services from a Federal department or agency to have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities."

Interested Parties

"Providing citizens, affected public agencies, representatives of public transportation employees, freight shippers, providers of freight transportation services, private providers of transportation, representatives of users of public transportation, representatives of users of pedestrian walkways and bicycle transportation facilities, representatives of the disabled, and other interested parties with reasonable opportunities to be involved in the transportation planning process." 23 CFR 450.210(a) and 450.316(a)

Limited-English-Proficiency

"...to improve access to federally conducted and federally assisted programs and activities for persons who, as a result of national origin, are limited in their English proficiency (LEP)"

(Goals) "...The Federal Government is committed to improving the accessibility of these services to eligible LEP persons, a goal that reinforces its equally important commitment to promoting programs and activities designed to help individuals learn English. To this end, each Federal agency shall examine the services it provides and develop and implement a system by which LEP persons can meaningfully access those services consistent with, and without unduly burdening, the fundamental mission of the agency." Limited-English-Proficiency, Executive Order #131664

FHWA has made our Recipients and Sub-Recipients responsible for satisfying the requirements of LEP. Recipients and Sub-Recipients are responsible for satisfying the LEP requirements, including conducting a Four-Factor Analysis and developing a Language Access Plan.

"The United States Department of Transportation (DOT) is publishing guidance concerning services and policies by recipients of Federal financial assistance from the Department of Transportation related to persons with limited English proficiency. The guidance is based on the prohibition against national origin discrimination in Title VI of the Civil Rights Act of 1964, as it affects limited English proficient persons." Policy Guidance Concerning Recipients' Responsibilities to Limited English Proficient (LEP) Persons, Federal Register Volume 70, Number 239, Wednesday, December 14, 20055

Public Input on Performance-based Planning

"The Secretary shall establish criteria to evaluate the effectiveness of the performance-based planning processes of States, taking into consideration the following:

  1. The extent to which the State is  making  progress toward achieving, the  performance targets described in  subsection  (d)(2),  taking into  account whether the  State developed  appropriate performance targets.
  2. The extent to which the State has made transportation investments that are efficient and cost-effective.
  3. The extent to which the State-
    1. has developed an  investment process  that relies on  public input and   awareness to  ensure that  investments are transparent and  accountable; and
    2. provides reports  allowing the  public to  access the  information being collected  in  a format that allows the  public to  meaningfully assess   the  performance  of the State." 23 U.S.C. 135 (h)(1)

Public Meetings and Hearings

Public hearings - "Any State transportation department which submits plans for a Federal-aid highway project involving the by passing of or, going through any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings..." 23 USC §128 -

"Ensure that public meetings are held at convenient and accessible locations and times..." 23CFR450.210 and 450.316

"Provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents so as to inform those persons and agencies who may be interested or affected." CEQ Regulations 40 CFR 1506.6(b)

"Provide accessibility in programs, activities, and facilities. Not discriminate on the basis of disability regarding admission and access to its programs and activities and its employment practices." Ensure appropriate accessibility standards to all transportation facilities in an accessible and safe manner. Section 504 of the Rehabilitation Act of 19736

Program Accessibility, Discrimination prohibited. "Except as otherwise provided in §35.150, no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity." State and Local Government Activities, covers all activities of State and local governments regardless of the government entity's size or receipt of Federal funding. Title II requires that State and local governments give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities.7 Americans with Disabilities Act (ADA), Title II, Subpart D Sec.35.149

Public Meetings and Hearings (Federal Agencies)

Sunshine Act - Federal requirements (Pub.L. 94-409, 90 Stat. 1241, enacted September 13, 1976, 5 U.S.C. §552b) Federal agencies, "In the case of each meeting, the agency shall make public announcement, at least one week before the meeting, of the time, place, and subject matter of the meeting, whether it is to be open or closed to the public, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting... The agency shall make promptly available to the public, in a place easily accessible to the public, the transcript, electronic recording, or minutes (as required by paragraph (1)) of the discussion of any item on the agenda, or of any item of the testimony of any witness received at the meeting, except for such item or items of such discussion or testimony as the agency determines to contain information which may be withheld under subsection (c)."

(Practitioners should check if state Sunshine or Open Meeting Laws apply in their state.)

Prohibiting Discrimination

Title VI of the Civil Rights Act of 1964

"Title VI prohibits exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on grounds of race, color, or national origin." (Pub. L. 88-352) (Title VII) (42 USC 2000)

In addition to Title VI, there are other Nondiscrimination statutes that afford legal protection. These statutes include the following: Section 162 (a) of the Federal-Aid Highway Act of 1973 (23 USC 324) (sex), Age Discrimination Act of 1975 (age), and Section 504 of the Rehabilitation Act of 1973/Americans With Disabilities Act of 1990 (disability) Taken together, these requirements define an over-arching Title VI/Nondiscrimination Program. It is important to also understand that Title VI and the additional Nondiscrimination requirements are applicable to Federal programs in addition to programs receiving federal financial assistance due to the Civil Rights Restoration Act of 1987.8

Section 162 (a) of the Federal-Aid Highway Act of 1973 (23 USC 324)

"No person shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance under this title or carried on under this title. This provision will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination, under title VI of the Civil Rights Act of 1964. However, this remedy is not exclusive and will not prejudice or cut off any other legal remedies available to a discriminatee."9

Rehabilitation Act of 1973, Section 504 provides:

"No otherwise qualified individual with a disability in the United States, as defined in section 7(20) shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service."10

Americans With Disabilities Act of 1990; (Pub. L. 101-336, 104 Stat. 327 as amended;

42 U.S.C. Sec. 12132. Discrimination. "... no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."

Limited-English-Proficiency

"...to improve access to federally conducted and federally assisted programs and activities for persons who, as a result of national origin, are limited in their English proficiency (LEP)"

(Goals) "...The Federal Government is committed to improving the accessibility of these services to eligible LEP persons, a goal that reinforces its equally important commitment to promoting programs and activities designed to help individuals learn English. To this end, each Federal agency shall examine the services it provides and develop and implement a system by which LEP persons can meaningfully access those services consistent with, and without unduly burdening, the fundamental mission of the agency." Limited-English-Proficiency, Executive Order #13166

FHWA has made our Recipients and Sub-Recipients responsible for satisfying the requirements of LEP. Recipients and Sub-Recipients are responsible for satisfying the Limited-English-Proficiency requirements including conducting a Four-Factor Analysis and developing a Language Access Plan.

"The United States Department of Transportation (DOT) is publishing guidance concerning services and policies by recipients of Federal financial assistance from the Department of Transportation related to persons with limited English proficiency. The guidance is based on the prohibition against national origin discrimination in Title VI of the Civil Rights Act of 1964, as it affects limited English proficient persons." Policy Guidance Concerning Recipients' Responsibilities to Limited English Proficient (LEP) Persons, Federal Register Volume 70, Number 239, Wednesday, December 14, 2005

Title VI Program And Related Statutes - Implementation And Review Procedures 11

Purpose "The purpose of this part is to effectuate the provisions of title VI of the Civil Rights Act of 1964 to the end that no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Transportation." 23 CFR 200

Public Interest

Recipients and Sub-Recipients to "assure that possible adverse economic, social, and environmental effects relating to any proposed project on any Federal-aid system have been fully considered in developing such project, and that the final decision on the project are made in the best overall public interest, taking into consideration the need for fast, safe and efficient transportation, public services and the costs of eliminating or minimizing such adverse effects and the following: (1) air, noise, and water pollution; (2) destruction or disruption of man-made and natural resources, aesthetic values, community cohesion and the availability of public facilities and services; (3) adverse employment effects, and tax and property values losses; (4) injurious displacement of people, businesses and farming; and (5) disruption of desirable community and regional growth." 23 USC 109 (h)

Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Executive Order 1289812

"...make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States and its territories and possessions, the District of Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the Mariana Islands."

Age Discrimination Act of 1975

42 U.S.C Section 6101. Statement of purpose

"It is the purpose of this chapter to prohibit discrimination on the basis of age in programs or activities receiving Federal financial assistance."

42 U.S.C.

"Pursuant to regulations prescribed under section 6103 of this title, and except as provided by section 6103(b) of this title and section 6103(c) of this title, no person in the United States shall, on the basis of age, be excluded from participation, in be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance..."

Traditionally Underserved by Existing Transportation Systems

"Include a process for seeking out and considering the needs of those traditionally underserved by existing transportation systems, such as low-income and minority households, who may face challenges accessing employment and other services;" 23 CFR 450.210(a)(1)(viii) and 450.316(a)(1)(vii)

Public Participation Plan

"The MPO shall develop and use a documented participation plan that defines a process for providing ... interested parties with reasonable opportunities to be involved in the metropolitan transportation planning process." 23 CFR 450.316(a)

Public Involvement Process

"...The State shall develop and use a documented public involvement process that provides opportunities for public review and comment at key decision points." 23 CFR 450.210(a)

Public Involvement/Public Hearing Procedures for NEPA

"For the Federal-aid highway program: (1) Each State must have procedures approved by the FHWA to carry out a public involvement/public hearing program pursuant to 23 U.S.C. 128 and 139 and CEQ regulation. (2) State public involvement/public hearing procedures must provide for:

  1. Coordination of public involvement activities and public hearings with the entire NEPA process.
  2. Early and continuing opportunities during project development for the public to be involved in the identification of social, economic, and environmental impacts, as well as impacts associated with relocation of individuals, groups, or institutions.
  3. One or more public hearings or the opportunity for hearing(s) to be held by the State highway agency at a convenient time and place for any Federal-aid project which requires significant amounts of right-of-way, substantially changes the layout or functions of connecting roadways or of the facility being improved, has a substantial adverse impact on abutting property, otherwise has a significant social, economic, environmental or other effect, or for which the FHWA determines that a public hearing is in the public interest.
  4. Reasonable notice to the public of either a public hearing or the opportunity for a public hearing. Such notice will indicate the availability of explanatory information. The notice shall also provide information required to comply with public involvement requirements of other laws, Executive orders, and regulations.
  5. Explanation at the public hearing of the following information, as appropriate:
    1. The project's purpose, need, and consistency with the goals and objectives of any local urban planning,
    2. The project's alternatives, and major design features,
    3. The social, economic, environmental, and other impacts of the project,
    4. The relocation assistance program and the right-of-way acquisition process.
    5. The State highway agency's procedures for receiving both oral and written statements from the public.
  6. Submission to the FHWA of a transcript of each public hearing and a certification that a required hearing or hearing opportunity was offered. The transcript will be accompanied by copies of all written statements from the public, both submitted at the public hearing or during an announced period after the public hearing.
  7. An opportunity for public involvement in defining the purpose and need and the range of alternatives, for any action subject to the project development procedures in 23 U.S.C. 139.
  8. Public notice and an opportunity for public review and comment on a Section 4(f)de minimis impact finding, in accordance with 49 U.S.C. 303(d)." 23 CFR 771.111 (h)

Public Interest

Recipients and Sub-Recipients to "assure that possible adverse economic, social, and environmental effects relating to any proposed project on any Federal-aid system have been fully considered in developing such project, and that the final decision on the project are made in the best overall public interest, taking into consideration the need for fast, safe and efficient transportation, public services and the costs of eliminating or minimizing such adverse effects and the following: (1) air, noise, and water pollution; (2) destruction or disruption of man-made and natural resources, aesthetic values, community cohesion and the availability of public facilities and services; (3) adverse employment effects, and tax and property values losses; (4) injurious displacement of people, businesses and farming; and (5) disruption of desirable community and regional growth." 23 USC 109 (h)

Public Records

The Freedom of Information Act (5 U.S.C. 552)

The Freedom of Information Act (FOIA) is a federal law that gives the public the right to make requests for federal agency records. All federal agencies are required to make requested records available unless the records are protected from disclosure by certain FOIA exemptions. FHWA FOIA - Freedom of Information Act13

Executive Order 13392 "Improving Agency Disclosure of Information" (Federal Agencies)

Traditionally Underserved By Existing Transportation Systems

"Include a process for seeking out and considering the needs of those traditionally underserved by existing transportation systems, such as low-income and minority households, who may face challenges accessing employment and other services;" 23 CFR 450.210(a)(1)(viii) and 450.316(a)(1)(vii)

Tribal

For information on Tribal Transportation involvement; go to http://www.fhwa.dot.gov/tribal/references/

Transit

For information on Federal Transit Administration, Public Involvement Process; go to http://www.fta.dot.gov/printer_friendly/12347_226.html

Visualization

"Use visualization techniques to describe the proposed long-range statewide transportation plan and supporting studies" 23 CFR 450.210(a) and 450.316(a)


1 Department of Justice, 'A Guide to Disability Rights Laws' http://www.ada.gov/cguide.htm#anchor65610

2 Americans with Disabilities Act Title II Regulations http://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm#a35149

3 Department of Justice (DOJ), 'A Guide to Disability Rights Laws' http://www.ada.gov/cguide.htm#anchor65610

4 DOJ, Executive Order 13166 Improving Access To Services For Persons With Limited English Proficiency http://www.justice.gov/crt/about/cor/Pubs/eolep.php

5 Policy Guidance Concerning Recipients' Responsibilities to Limited English Proficient (LEP) Persons, Federal Register Volume 70, Number 239, Wednesday, December 14, 2005 http://www.gpo.gov/fdsys/pkg/FR-2005-12-14/html/05-23972.htm

6 DOJ, 'A Guide to Disability Rights Laws' http://www.ada.gov/cguide.htm#anchor65610

7 DOJ, 'A Guide to Disability Rights Laws' http://www.ada.gov/cguide.htm#anchor65610

8 FHWA, Title VI Of The Civil Rights Act Of 1964 And Additional Nondiscrimination Requirements http://www.fhwa.dot.gov/civilrights/programs/tvi.cfm

9 23 U.S.C. Section 324 - Prohibition of discrimination on the basis of sex www.fhwa.dot.gov/civilrights/programs/tvi.cfm

10 DOJ, 'A Guide to Disability Rights Laws' http://www.ada.gov/cguide.htm#anchor65610

11 http://www.law.cornell.edu/cfr/text/49/part-21

12 Executive Order 12898 of February 11, 1994 Federal Actions To Address Environmental Justice in

Minority Populations and Low-Income Populations http://www.archives.gov/federal-register/executive-orders/pdf/12898.pdf

13 FHWA FOIA - Freedom of Information Act http://www.fhwa.dot.gov/foia/dotfoiamessage.htm

Updated: 01/07/2014
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