The Federal Transit Act, as Amended through August 10, 2005, and Related Laws (2007)

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209 PART III OTHER FEDERAL LAWS AFFECTING FEDERAL MASS TRANSPORTATION PROGRAMS CONTENTS Americans with Disabilities Act of 1990 ............................................................................................................ 211 Section 504 of the Rehabilitation Act of 1973, as Amended.....................................................................221 Excerpts from Titles VI and VII of the Civil Rights Act of 1964 .............................................................222 Davis-Bacon Act ..........................................................................................................................................225 Protection of Public Lands..........................................................................................................................226 Excerpts from the National Environmental Policy Act of 1969...............................................................227 Section 106 of the National Historic Preservation Act of 1966................................................................229 Intergovernmental Review of Federal Programs......................................................................................229 Excerpt from Federal Railroad Safety Act of 1970 ...................................................................................230 Sections 176 and 219 of the Clean Air Act ................................................................................................230 Executive Order No. 11246.................................................................................................................................... 237

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211 AMERICANS WITH DISABILITIES ACT OF 1990 (PUBLIC LAW 101-336, JULY 26, 1990; 42 U.S.C. 12101487) * * * Title II—Public Services Subtitle A—Prohibition Against Discrimination and Other Generally Applicable Provisions Section 201. Definition.488 As used in this title: (1) PUBLIC ENTITY.—The term “public entity” means— (A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Corpo- ration, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act). (2) QUALIFIED INDIVIDUAL WITH A DISABILITY.—The term “qualified individual with a disability” means an individual with a disability who, with or without reasonable modifications to rules, policies, or prac- tices, the removal of architectural, communication, or transportation barriers, or the provision of auxil- iary aids and services, meets the essential eligibil- ity requirements for the receipt of services or the participation in programs or activities provided by a public entity. Section 202. Discrimination.489 490 491 492 493 494 495 487 Nonsubstantive changes made in the codification are not reflected herein. 488 42 U.S.C. § 12131. 489 42 U.S.C. § 12132. 490 Agency’s requirement that disabled participants provide updated medical information recertifying their disability did not discriminate for purposes of this provision, regardless of lack of accommodation to disabled person’s financial ability to provide updated information. Weinreich v. L.A. County Metro. Transp. Auth., 114 F.3d 976 (9th Cir.), cert. denied, 522 U.S. 971 (1997). 491 Commuter railroad not required to announce to passen- ger, who was not obviously visually handicapped, that there was gap between car and platform at non-key station or that bridge plates were available. Katzowitz v. Long Island R.R., 58 F. Supp. 2d 34 (E.D.N.Y. 1999). 492 Failure to remedy isolated or temporary conditions (bro- ken elevator and uncleared ramp during snowstorm) not part of pattern of neglect, not a violation of the Americans with Disabilities Act (ADA). Foley v. City of Lafayette, 359 F.3d 925 (7th Cir. 2004). 493 DART is not required by the ADA to make reasonable modification to its paratransit services. Therefore, failure to Subject to the provisions of this title, no qualified in- dividual with a disability shall, by reason of such dis- ability, 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 such entity. Section 203. Enforcement.496 The remedies, procedures, and rights set forth in sec- tion 505 of the Rehabilitation Act of 1973 (29 U.S.C. 794a) shall be the remedies, procedures, and rights this title provides to any person alleging discrimination on the basis of disability in violation of section 202. Section 204. Regulations.497 (a) IN GENERAL.—Not later than 1 year after the date of enactment of this Act, the Attorney General shall promulgate regulations in an accessible format that implement this subtitle. Such regulations shall not in- clude any matter within the scope of the authority of the Secretary of Transportation under section 223, 229, or 244. (b) RELATIONSHIP TO OTHER REGULATIONS.—Except for “program accessibility, existing facilities,” and “commu- nications,” regulations under subsection (a) shall be consistent with this Act and with the coordination regu- lations under part 41 of title 28, Code of Federal Regu- lations (as promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applica- ble to recipients of Federal financial assistance under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). With respect to “program accessibility, existing facilities,” and “communications,” such regulations shall be consistent with regulations and analysis as in part 39 of title 28 of the Code of Federal Regulations, appli- modify pick-up location for paratransit service not a violation of the ADA. Melton v. Dallas Area Rapid Transit, 391 F.3d 669 (5th Cir. 2004). 494 28 C.F.R. § 35.151 effectuates a mandate of tit. II and therefore is enforceable through the private cause of action available under the statute, which covers more than inten- tional discrimination. Public entities must also make certain accommodations to the disabled in the course of providing pub- lic services, which should include removing architectural barri- ers in the manner prescribed by 28 C.F.R. § 35.151. However, the requirements for developing a transition plan under 28 C.F.R. § 35.150(d) is not enforceable through a private cause of action. Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901 (6th Cir. 2004). 495 The NYCTA’s policy that inquired into employees' health and medical conditions as a prerequisite to paid sick leave was overbroad. The court limited its application only to those em- ployees in safety sensitive positions and to those with chronic absentee records. Transport Workers Union of America v. New York City Transit Auth., 341 F. Supp. 2d 432 (S.D.N.Y. 2004). Although the union sued under both tit. I and tit. II of the ADA, the court found that the substance of the complaint was under 42 U.S.C. § 12112(d)(4)(A). 496 42 U.S.C. § 12133. 497 42 U.S.C. § 12134.

212 cable to federally conducted activities under such sec- tion 504. (c) STANDARDS.—Regulations under subsection (a) shall include standards applicable to facilities and vehi- cles covered by this subtitle, other than facilities, sta- tions, rail passengers cars, and vehicles covered by sub- title B. Such standards shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board in accordance with section 504(a) of this Act. Section 205. Effective Date. (a) GENERAL RULE.—Except as provided in subsection (b), this subtitle shall become effective 18 months after the date of enactment of this Act. (b) EXCEPTION.—Section 204 shall become effective on the date of enactment of this Act. Subtitle B—Actions Applicable to Public Transportation Provided by Public Entities Considered Discriminatory Part I—Public Transportation Other Than by Aircraft or Certain Rail Operations Section 221. Definitions.498 As used in this part: (1) DEMAND RESPONSIVE SYSTEM.—The term “de- mand responsive system” means any system of pro- viding designated public transportation which is not a fixed route system. (2) DESIGNATED PUBLIC TRANSPORTATION.—The term “designated public transportation” means transportation (other than public school transpor- tation) by bus, rail, or any other conveyance (other than transportation by aircraft or intercity or com- muter rail transportation (as defined in section 241)) that provides the general public with general or special service (including charter service) on a regular and continuing basis. (3) FIXED ROUTE SYSTEM.—The term “fixed route system” means a system of providing designated public transportation on which a vehicle is operated along a prescribed route according to a fixed sched- ule. (4) OPERATES.—The term “operates,” as used with respect to a fixed route system or demand respon- sive system, includes operation of such system by a person under a contractual or other arrangement or relationship with a public entity. (5) PUBLIC SCHOOL TRANSPORTATION.—The term “public school transportation” means transporta- tion by schoolbus vehicles of schoolchildren, per- sonnel, and equipment to and from a public ele- mentary or secondary school and school-related activities. (6) SECRETARY.—The term “Secretary” means the Secretary of Transportation. 498 42 U.S.C. § 12141. Section 222. Public Entities Operating Fixed Route Systems.499 500 501 (a) PURCHASE AND LEASE OF NEW VEHICLES.—It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a public entity which operates a fixed route system to purchase or lease a new bus, a new rapid rail vehicle, a new light rail vehicle, or any other new vehicle to be used on such system, if the so- licitation for such purchase or lease is made after the 30th day following the effective date of this subsection and if such bus, rail vehicle, or other vehicle is not read- ily accessible to and usable by individuals with disabili- ties, including individuals who use wheelchairs. (b) PURCHASE AND LEASE OF USED VEHICLES.—Subject to subsection (c)(1), it shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a pub- lic entity which operates a fixed route system to pur- chase or lease, after the 30th day following the effective date of this subsection, a used vehicle for use on such system unless such entity makes demonstrated good faith efforts to purchase or lease a used vehicle for use on such system that is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. (c) REMANUFACTURED VEHICLES.— (1) GENERAL RULE.—Except as provided in paragraph (2), it shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a public entity which operates a fixed route system— (A) to remanufacture a vehicle for use on such system so as to extend its usable life for 5 years or more, which remanufacture begins (or for which the solicitation is made) after the 30th day following the effective date of this subsection; or 499 42 U.S.C. § 12142. 500 Regular users had standing to bring action against city for violations of tit. II of the ADA, as did tester who intended to ride the system several times a year for compliance, but occa- sional users and persons intending to come to the city to test the system as part of their job did not have standing. Hearing impaired individual had standing to seek injunctive relief against city for failure to maintain Telecommunications Device for the Deaf phone line where individual averred phone had not worked in the past and that she planned to use the line regu- larly in the future. Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004). 501 Fixed bus route system did not have to be fully accessible where comparable paratransit offered; city may require dis- abled persons to apply for qualification under ADA and to meet prior notification requirement; allowing bus driver discretion as to whether to allow disabled passengers access to accessible bus on inaccessible route violated ADA. Tandy v. City of Wich- ita, 208 F. Supp. 2d 1214 (D. Kan. 2002), aff’d in part, rev’d in part, 380 F.3d 1277 (10th Cir. 2004).

213 (B) to purchase or lease for use on such system a remanufactured vehicle which has been remanufactured so as to extend its usable life for 5 years or more, which pur- chase or lease occurs after such 30th day and during the period in which the usable life is extended; unless, after remanufacture, the vehicle is, to the maximum extent feasible, readily accessible to and usable by individu- als with disabilities, including individuals who use wheelchairs. (2) EXCEPTION FOR HISTORIC VEHICLES.— (A) GENERAL RULE.—If a public entity operates a fixed route system any segment of which is included on the National Register of Historic Places and if making a vehicle of historic character to be used solely on such segment readily accessible to and usable by individuals with disabilities would signifi- cantly alter the historic character of such vehicle, the public entity only has to make (or to purchase or lease a remanufactured vehicle with) those modifications which are necessary to meet the requirements of para- graph (1) and which do not significantly alter the historic character of such vehicle. (B) VEHICLES OF HISTORIC CHARACTER DEFINED BY REGULATIONS.—For purposes of this paragraph and section 228(b), a vehicle of historic character shall be defined by the regulations issued by the Secretary to carry out this subsection. Section 223. Paratransit as a Complement to Fixed Route Service.502 503 (a) GENERAL RULE.—It shall be considered discrimi- nation for purposes of section 202 of this Act and sec- tion 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a public entity which operates a fixed route 502 42 U.S.C. § 12143. 503 SEPTA violated ADA by failing to provide rides to any ADA-eligible caller and by regularly and consistently denying rides to substantial number of ADA-eligible passengers. Lib- erty Resources, Inc. v. Southeastern Pa. Transp. Auth., 155 F. Supp. 2d 242 (E.D. Pa. 2001), vacated, appeal dismissed, 54 Fed. Appx. 769 (3d Cir. 2002). Regulation prohibiting waiting lists ambiguous concerning whether prohibition relates to use of waiting lists for eligibility or also to individual rides, so summary judgment denial appropriate to permit discovery. Denial of 6 percent of calls not insubstantial. Anderson v. Rochester-Genesee Regional Transp. Auth., 206 F.R.D. (W.D.N.Y.), supplemented 205 F. Supp. 2d 106, modified 332 F. Supp. 2d 540, aff’d in part, rev’d in part and remanded, 337 F.3d 201 (2d Cir. 2003). Paratransit provider can only be held liable for violation of ADA on basis of lack of capacity if there is pattern or practice of denials. Agency has violated ADA and implementing regulations where it can foresee growth in sys- tem and recognizes it has not scheduled all next-day ride re- quests, and failed to implement reforms in violation of ADA. Anderson v. Rochester-Genesee Regional Transp. Auth., 337 F.3d 201 (2d Cir. 2003), on remand 332 F. Supp. 2d 540. system (other than a system which provides solely commuter bus service) to fail to provide with respect to the operations of its fixed route system, in accordance with this section, paratransit and other special trans- portation services to individuals with disabilities, in- cluding individuals who use wheelchairs, that are suffi- cient to provide to such individuals a level of service (1) which is comparable to the level of designated public transportation services provided to individuals without disabilities using such system; or (2) in the case of re- sponse time, which is comparable, to the extent practi- cable, to the level of designated public transportation services provided to individuals without disabilities using such system. (b) ISSUANCE OF REGULATIONS.—Not later than 1 year after the effective date of this subsection, the Secretary shall issue final regulations to carry out this section. (c) REQUIRED CONTENTS OF REGULATION.— (1) ELIGIBLE RECIPIENTS OF SERVICE.—The regula- tions issued under this section shall require each public entity which operates a fixed route system to provide the paratransit and other special transpor- tation services required under this section— (A)(i) to any individual with a disability who is unable, as a result of a physical or mental impairment (including a vision impairment) and without the assistance of another individ- ual (except an operator of a wheelchair lift or other boarding assistance device), to board, ride, or disembark from any vehicle on the sys- tem which is readily accessible to and usable by individuals with disabilities; (ii) to any individual with a disability who needs the assistance of a wheelchair lift or other boarding assistance device (and is able with such assistance) to board, ride, and disembark from any vehicle which is readily accessible to and usable by individuals with disabilities if the individ- ual wants to travel on a route on the sys- tem during the hours of operation of the system at a time (or within a reasonable period of such time) when such a vehicle is not being used to provide designated pub- lic transportation on the route; and (iii) to any individual with a disability who has a specific impairment-related condition which prevents such individual from traveling to a boarding location or from a disembarking location on such sys- tem; (B) to one other individual accompanying the individual with the disability; and (C) to other individuals, in addition to the one individual described in subparagraph (B), accompanying the individual with a disability provided that space for these additional indi- viduals is available on the paratransit vehicle carrying the individual with a disability and that the transportation of such additional indi-

214 viduals will not result in a denial of service to individuals with disabilities. For purposes of clauses (i) and (ii) of subpara- graph (A), boarding or disembarking from a vehicle does not include travel to the boarding location or from the disembarking location. (2) SERVICE AREA.—The regulations issued under this section shall require the provision of paratran- sit and special transportation services required un- der this section in the service area of each public entity which operates a fixed route system, other than any portion of the service area in which the public entity solely provides commuter bus service. (3) SERVICE CRITERIA.—Subject to paragraphs (1) and (2), the regulations issued under this section shall establish minimum service criteria for deter- mining the level of services to be required under this section. (4) UNDUE FINANCIAL BURDEN LIMITATION.—The regulations issued under this section shall provide that, if the public entity is able to demonstrate to the satisfaction of the Secretary that the provision of paratransit and other special transportation ser- vices otherwise required under this section would impose an undue financial burden on the public en- tity, the public entity, notwithstanding any other provision of this section (other than paragraph (5)), shall only be required to provide such services to the extent that providing such services would not impose such a burden. (5) ADDITIONAL SERVICES.—The regulations is- sued under this section shall establish circum- stances under which the Secretary may require a public entity to provide, notwithstanding para- graph (4), paratransit and other special transporta- tion services under this section beyond the level of paratransit and other special transportation ser- vices which would otherwise be required under paragraph (4). (6) PUBLIC PARTICIPATION.—The regulations is- sued under this section shall require that each pub- lic entity which operates a fixed route system hold a public hearing, provide an opportunity for public comment, and consult with individuals with dis- abilities in preparing its plan under paragraph (7). (7) PLANS.—The regulations issued under this section shall require that each public entity which operates a fixed route system— (A) within 18 months after the effective date of this subsection, submit to the Secretary, and commence implementation of, a plan for pro- viding paratransit and other special transpor- tation services which meets the requirements of this section; and (B) on an annual basis thereafter, submit to the Secretary, and commence implementation of, a plan for providing such services. (8) PROVISION OF SERVICES BY OTHERS.—The regu- lations issued under this section shall— (A) require that a public entity submitting a plan to the Secretary under this section iden- tify in the plan any person or other public en- tity which is providing a paratransit or other special transportation service for individuals with disabilities in the service area to which the plan applies; and (B) provide that the public entity submitting the plan does not have to provide under the plan such service for individuals with disabili- ties. (9) OTHER PROVISIONS.—The regulations issued under this section shall include such other provi- sions and requirements as the Secretary deter- mines are necessary to carry out the objectives of this section. (d) REVIEW OF PLAN.— (1) GENERAL RULE.—The Secretary shall review a plan submitted under this section for the purpose of determining whether or not such plan meets the requirements of this section, including the regula- tions issued under this section. (2) DISAPPROVAL.—If the Secretary determines that a plan reviewed under this subsection fails to meet the requirements of this section, the Secre- tary shall disapprove the plan and notify the public entity which submitted the plan of such disap- proval and the reasons therefor. (3) MODIFICATION OF DISAPPROVED PLAN.—Not later than 90 days after the date of disapproval of a plan under this subsection, the public entity which submitted the plan shall modify the plan to meet the requirements of this section and shall submit to the Secretary, ad commence implementation of, such modified plan. (e) DISCRIMINATION DEFINED.—As used in subsection (a), the term “discrimination” includes— (1) a failure of a public entity to which the regu- lations issued under this section apply to submit, or commence implementation of, a plan in accordance with subsections (c)(6) and (c)(7); (2) a failure of such entity to submit, or com- mence implementation of, a modified plan in accor- dance with subsection (d)(3); (3) submission to the Secretary of a modified plan under subsection (d)(3) which does not meet the re- quirements of this section; or (4) a failure of such entity to provide paratransit or other special transportation services in accor- dance with the plan or modified plan the public en- tity submitted to the Secretary under this section. (f) STATUTORY CONSTRUCTION.—Nothing in this sec- tion shall be construed as preventing a public entity— (1) from providing paratransit or other special transportation services at a level which is greater than the level of such services which are required by this section, (2) from providing paratransit or other special transportation services in addition to those para-

215 transit and special transportation services required by this section, or (3) from providing such services to individuals in addition to those individuals to whom such services are required to be provided by this section. Section 224. Public Entity Operating a Demand Responsive System.504 If a public entity operates a demand responsive sys- tem, it shall be considered discrimination, for purposes of section 202 of this Act and section 504 of the Reha- bilitation Act of 1973 (29 U.S.C. 794), for such entity to purchase or lease a new vehicle for use on such system, for which a solicitation is made after the 30th day fol- lowing the effective date of this section, that is not read- ily accessible to and usable by individuals with disabili- ties, including individuals who use wheelchairs, unless such system, when viewed in its entirety, provides a level of service to such individuals equivalent to the level of service such system provides to individuals without disabilities. Section 225. Temporary Relief Where Lifts Are Unavailable.505 (a) GRANTING.—With respect to the purchase of new buses, a public entity may apply for, and the Secretary may temporarily relieve such public entity from the obligation under section 222(a) or 224 to purchase new buses that are readily accessible to and usable by indi- viduals with disabilities if such public entity demon- strates to the satisfaction of the Secretary— (1) that the initial solicitation for new buses made by the public entity specified that all new buses were to be lift-equipped and were to be oth- erwise accessible to and usable by individuals with disabilities; (2) the unavailability from any qualified manu- facturer of hydraulic, electromechanical, or other lifts for such new buses; (3) that the public entity seeking temporary relief has made good faith efforts to locate a qualified manufacturer to supply the lifts to the manufac- turer of such buses in sufficient time to comply with such solicitation; and (4) that any further delay in purchasing new buses necessary to obtain such lifts would signifi- cantly impair transportation services in the com- munity served by the public entity. (b) DURATION AND NOTICE TO CONGRESS.—Any relief granted under subsection (a) shall be limited in dura- tion by a specified date, and the appropriate committees of Congress shall be notified of any such relief granted. (c) FRAUDULENT APPLICATION.—If, at any time, the Secretary has reasonable cause to believe that any re- lief granted under subsection (a) was fraudulently ap- plied for, the Secretary shall— 504 42 U.S.C. § 12144. 505 42 U.S.C. § 12145. (1) cancel such relief if such relief is still in effect; and (2) take such other action as the Secretary con- siders appropriate. Section 226. New Facilities.506 For purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), it shall be considered discrimination for a public entity to construct a new facility to be used in the provision of designated public transportation services unless such facility is readily accessible to and usable by individuals with disabilities, including individuals who use wheel- chairs. Section 227. Alterations of Existing Facilities.507 (a) GENERAL RULE.—With respect to alterations of an existing facility or part thereof used in the provision of designated public transportation services that affect or could affect the usability of the facility or part thereof, it shall be considered discrimination, for purposes of section 202 of this Act and section 504 of the Rehabilita- tion Act of 1973 (29 U.S.C. 794), for a public entity to fail to make such alterations (or to ensure that the al- terations are made) in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individu- als with disabilities, including individuals who use wheelchairs, upon the completion of such alterations. Where the public entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon com- pletion of such alterations, where such alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are not dis- proportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General). (b) SPECIAL RULE FOR STATIONS.— (1) GENERAL RULE.—For purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), it shall be considered dis- crimination for a public entity that provides desig- nated public transportation to fail, in accordance with the provisions of this subsection, to make key stations (as determined under criteria established by the Secretary by regulation) in rapid rail and light rail systems readily accessible to and usable by individuals with disabilities, including individu- als who use wheelchairs. (2) RAPID RAIL AND LIGHT RAIL KEY STATIONS.— 506 42 U.S.C. § 12146. 507 42 U.S.C. § 12147.

216 (A) ACCESSIBILITY.—Except as otherwise provided in this paragraph, all key stations (as determined under criteria established by the Secretary by regulation) in rapid rail and light rail systems shall be made readily accessible to and usable by individuals with disabilities, in- cluding individuals who use wheelchairs, as soon as practicable but in no event later than the last day of the 3-year period beginning on the effective date of this paragraph. (B) EXTENSION FOR EXTRAORDINARILY EXPENSIVE STRUCTURAL CHANGES.—The Secre- tary may extend the 3-year period under sub- paragraph (A) up to a 30-year period for key stations in a rapid rail or light rail system which stations need extraordinarily expensive structural changes to, or replacement of, exist- ing facilities; except that by the last day of the 20th year following the date of the enactment of this Act at least 2/3 of such key stations must be readily accessible to and usable by in- dividuals with disabilities. (3) PLANS AND MILESTONES.—The Secretary shall require the appropriate public entity to develop and submit to the Secretary a plan for compliance with this subsection— (A) that reflects consultation with individu- als with disabilities affected by such plan and the results of a public hearing and public com- ments on such plan, and (B) that establishes milestones for achieve- ment of the requirements of this subsection. Section 228. Public Transportation Programs and Activities in Existing Facilities and One Car per Train Rule.508 (a) PUBLIC TRANSPORTATION PROGRAMS AND ACTIVITIES IN EXISTING FACILITIES.— (1) IN GENERAL.—With respect to existing facili- ties used in the provision of designated public transportation services, it shall be considered dis- crimination, for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), for a public entity to fail to operate a designated public transportation program or ac- tivity conducted in such facilities so that, when viewed in the entirety, the program or activity is readily accessible to and usable by individuals with disabilities. (2) EXCEPTION.—Paragraph (1) shall not require a public entity to make structural changes to exist- ing facilities in order to make such facilities acces- sible to individuals who use wheelchairs, unless and to the extent required by section 227(a) (relat- ing to alterations) or section 227(b) (relating to key stations). (3) UTILIZATION.—Paragraph (1) shall not require a public entity to which paragraph (2) applies, to 508 42 U.S.C. § 12148. provide to individuals who use wheelchairs services made available to the general public at such facili- ties when such individuals could not utilize or benefit from such services provided at such facili- ties. (b) ONE CAR PER TRAIN RULE.— (1) GENERAL RULE.—Subject to paragraph (2), with respect to 2 or more vehicles operated as a train by a light or rapid rail system, for purposes of section 202 of this Act and section 504 of the Reha- bilitation Act of 1973 (29 U.S.C. 794), it shall be considered discrimination for a public entity to fail to have a least 1 vehicle per train that is accessible to individuals with disabilities, including individu- als who use wheelchairs, as soon as practicable but in no event later than the last day of the 5-year pe- riod beginning on the effective date of this section. (2) HISTORIC TRAINS.—In order to comply with paragraph (1) with respect to the remanufacture of a vehicle of historic character which is to be used on a segment of a light or rapid rail system which is included on the National Register of Historic Places, if making such vehicle readily accessible to and usable by individuals with disabilities would significantly alter the historic character of such ve- hicle, the public entity which operates such system only has to make (or to purchase or lease a remanu- factured vehicle with) those modifications which are necessary to meet the requirements of section 222(c)(1) and which do not significantly alter the historic character of such vehicle. Section 229. Regulations.509 (a) IN GENERAL.—Not later than 1 year after the date of enactment of this Act, the Secretary of Transporta- tion shall issue regulations, in an accessible format, necessary for carrying out this part (other than section 223). (b) STANDARDS.—The regulations issued under this section and section 223 shall include standards applica- ble to facilities and vehicles covered by this subtitle. The standards shall be consistent with the minimum guidelines and requirements issued by the Architec- tural and Transportation Barriers Compliance Board in accordance with section 504 of this Act. Section 230. Interim Accessibility Require- ments.510 If final regulations have not been issued pursuant to section 229, for new construction or alterations for which a valid and appropriate State or local building permit is obtained prior to the issuance of final regula- tions under such section, and for which the construction or alteration authorized by such permit begins within one year of the receipt of such permit and is completed under the terms of such permit, compliance with the Uniform Federal Accessibility Standards in effect at the 509 42 U.S.C. § 12149. 510 42 U.S.C. § 12150.

217 time the building permit is issued shall suffice to satisfy the requirement that facilities be readily accessible to and usable by persons with disabilities as required un- der sections 226 and 227, except that, if such final regu- lations have not been issued one year after the Archi- tectural and Transportation Barriers Compliance Board has issued the supplemental minimum guidelines re- quired under section 504(a) of this Act, compliance with such supplemental minimum guidelines shall be neces- sary to satisfy the requirement that facilities be readily accessible to and usable by persons with disabilities prior to issuance of the final regulations. Section 231. Effective Date. (a) GENERAL RULE.—Except as provided in subsection (b), this part shall become effective 18 months after the date of enactment of this Act. (b) EXCEPTION.—Sections 222, 223 (other than subsec- tion (a)), 224, 225, 227(b), 228(b), and 229 shall become effective on the date of enactment of this Act. Part II—Public Transportation by Intercity and Commuter Rail Section 241. Definitions.511 As used in this part: (1) COMMUTER AUTHORITY.—The term “commuter authority” has the meaning given such term in sec- tion 103(8) of the Rail Passenger Service Act (45 U.S.C. 502(8)).512 (2) COMMUTER RAIL TRANSPORTATION.—The term “commuter rail transportation” has the meaning given the term “commuter rail passenger transpor- tation”513 in section 103(9) of the Rail Passenger Service Act (45 U.S.C. 502(9)).514 (3) INTERCITY RAIL TRANSPORTATION.—The term “intercity rail transportation” means transportation provided by the National Railroad Passenger Cor- poration. (4) RAIL PASSENGER CAR.—The term “rail passen- ger car” means, with respect to intercity rail trans- portation, single-level and bi-level coach cars, sin- gle-level and bi-level dining cars, single-level and bi-level sleeping cars, single-level and bi-level lounge cars, and food service cars. (5) RESPONSIBLE PERSON.—The term “responsible person” means— (A) in the case of a station more than 50 per- cent of which is owned by a public entity, such public entity; (B) in the case of a station more than 50 per- cent of which is owned by a private party, the persons providing intercity or commuter rail transportation to such station, as allocated on 511 42 U.S.C. § 12161. 512 Now § 24102(4) of tit. 49. 513 Sec. 6(k) of Pub. L. No. 104-287 substituted “commuter rail passenger transportation” for “commuter service”. 514 Now § 24102(5) of tit. 49. an equitable basis by regulation by the Secre- tary of Transportation; and (C) in a case where no party owns more than 50 percent of a station, the persons providing intercity or commuter rail transportation to such station and the owners of the station, other than private party owners, as allocated on an equitable basis by regulation by the Sec- retary of Transportation. (6) STATION.—The term “station” means the por- tion of a property located appurtenant to a right-of- way on which intercity or commuter rail transpor- tation is operated, where such portion is used by the general public and is related to the provision of such transportation, including passenger platforms, designated waiting areas, ticketing areas, rest- rooms, and, where a public entity providing rail transportation owns the property, concession areas, to the extent that such public entity exercises con- trol over the selection, design, construction, or al- teration of the property, but such term does not in- clude flag stops. Section 242. Intercity and Commuter Rail Ac- tions Considered Discriminatory.515 516 (a) INTERCITY RAIL TRANSPORTATION.— (1) ONE CAR PER TRAIN RULE.—It shall be consid- ered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person who provides in- tercity rail transportation to fail to have at least one passenger car per train that is readily accessi- ble to and usable by individuals with disabilities, including individuals who use wheelchairs, in ac- cordance with regulations issued under section 244, as soon as practicable, but in no event later than 5 years after the date of enactment of this Act. (2) NEW INTERCITY CARS.— (A) GENERAL RULE.—Except as otherwise provided in this subsection with respect to in- dividuals who use wheelchairs, it shall be con- sidered discrimination for purposes of section 202 of this Act and section 504 of the Rehabili- tation Act of 1973 (29 U.S.C. 794) for a person to purchase or lease any new rail passenger cars for use in intercity rail transportation, and for which a solicitation is made later than 30 days after the effective date of this section, unless all such rail cars are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as 515 42 U.S.C. § 12162. 516 Staff reduction plans not likely to be considered “altera- tion” to station under ADA, but claim that installation of ticket vending machines (TVMs) likely to be considered “alteration” under ADA as such installation is physical alteration. How- ever, no irreparable harm for refusing injunction against in- stallation of TVMs as tickets could be bought on board and TVMs did not cause reduced ability to use station. Molloy v. Metropolitan Transp. Auth., 94 F.3d 808 (2d Cir. 1996).

218 prescribed by the Secretary of Transportation in regulations issued under section 244. (B) SPECIAL RULE FOR SINGLE-LEVEL PASSENGER COACHES FOR INDIVIDUALS WHO USE WHEELCHAIRS.—Single-level passenger coaches shall be required to— (i) be able to be entered by an individual who uses a wheelchair; (ii) have space to park and secure a wheelchair; (iii) have a seat to which a passenger in a wheelchair can transfer, and a space to fold and store such passenger's wheelchair; and (iv) have a restroom usable by an indi- vidual who uses a wheelchair, only to the extent provided in paragraph (3). (C) SPECIAL RULE FOR SINGLE-LEVEL DINING CARS FOR INDIVIDUALS WHO USE WHEELCHAIRS.— Single-level dining cars shall not be required to— (i) be able to be entered from the station plat- form by an individual who uses a wheelchair; or (ii) have a restroom usable by an indi- vidual who uses a wheelchair if no rest- room is provided in such car for any pas- senger. (D) SPECIAL RULE FOR BI-LEVEL DINING CARS FOR INDIVIDUALS WHO USE WHEELCHAIRS.—Bi- level dining cars shall not be required to— (i) be able to be entered by an individual who uses a wheelchair; (ii) have space to park and secure a wheelchair; (iii) have a seat to which a passenger in a wheel chair can transfer, or a space to fold and store such passenger's wheelchair; or (iv) have a restroom usable by an indi- vidual who uses a wheelchair. (3) ACCESSIBILITY OF SINGLE-LEVEL COACHES.— (A) GENERAL RULE.—It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person who provides intercity rail transportation to fail to have on each train which includes one or more single-level rail passenger coaches— (i) a number of spaces— (I) to park and secure wheelchairs (to accommodate individuals who wish to remain in their wheelchairs) equal to not less than one-half of the number of single-level rail passenger coaches in such train; and (II) to fold and store wheelchairs (to accommodate individuals who wish to transfer to coach seats) equal to not less than one-half of the number of single-level rail passenger coaches in such train, as soon as practicable, but in no event later than 5 years after the date of enactment of this Act;517 and (ii) a number of spaces— (I) to park and secure wheelchairs (to accommodate individuals who wish to remain in their wheelchairs) equal to not less than the total number of single-level rail passenger coaches in such train; and (II) to fold and store wheelchairs (to accommodate individuals who wish to transfer to coach seats) equal to not less than the total number of single- level rail passenger coaches in such train, as soon as practicable, but in no event later than 10 years after the date of enactment of this Act.518 (B) LOCATION.—Spaces required by subpara- graph (A) shall be located in single-level rail passenger coaches or food service cars. (C) LIMITATION.—Of the number of spaces required on a train by subparagraph (A), not more than two spaces to park and secure wheelchairs nor more than two spaces to fold and store wheelchairs shall be located in any one coach or food service car. (D) OTHER ACCESSIBILITY FEATURES.—Single- level rail passenger coaches and food service cars on which the spaces required by subpara- graph (A) are located shall have a restroom us- able by an individual who uses a wheelchair and shall be able to be entered from the station platform by an individual who uses a wheel- chair. (4) FOOD SERVICE.— (A) SINGLE-LEVEL DINING CARS.—On any train in which a single-level dining car is used to provide food service— (i) if such single-level dining car was purchased after the date of enactment of this Act, table service in such car shall be provided to a passenger who uses a wheel- chair if— (I) the car adjacent to the end of the dining car through which a wheelchair may enter is itself accessible to a wheelchair; (II) such passenger can exit to the platform from the car such passenger occupies, move down the platform, and enter the adjacent accessible car de- scribed in subclause (I) without the necessity of the train being moved within the station; and 517 July 26, 1990. 518 July 26, 1990.

219 (III) space to park and secure a wheelchair is available in the dining car at the time such passenger wishes to eat (if such passenger wishes to re- main in a wheelchair), or space to store and fold a wheelchair is avail- able in the dining car at the time such passenger wishes to eat (if such pas- senger wishes to transfer to a dining car seat); and (ii) appropriate auxiliary aids and ser- vices, including a hard surface on which to eat, shall be provided to ensure that other equivalent food service is available to indi- viduals with disabilities, including indi- viduals who use wheelchairs, and to pas- sengers traveling with such individuals. Unless not practicable, a person providing intercity rail transportation shall place an ac- cessible car adjacent to the end of a dining car described in clause (i) through which an indi- vidual who uses a wheelchair may enter. (B) BI-LEVEL DINING CARS.—On any train in which a bi-level dining car is used to provide food service— (i) if such train includes a bi-level lounge car purchased after the date of enactment of this Act, table service in such lounge car shall be provided to individuals who use wheelchairs and to other passengers; and (ii) appropriate auxiliary aids and ser- vices, including a hard surface on which to eat, shall be provided to ensure that other equivalent food service is available to indi- viduals with disabilities, including indi- viduals who use wheelchairs, and to pas- sengers traveling with such individuals. (b) COMMUTER RAIL TRANSPORTATION.— (1) ONE CAR PER TRAIN RULE.—It shall be consid- ered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person who provides commuter rail transportation to fail to have at least one passenger car per train that is readily accessi- ble to and usable by individuals with disabilities, including individuals who use wheelchairs, in ac- cordance with regulations issued under section 244, as soon as practicable, but in no event later than 5 years after the date of enactment of this Act. (2) New commuter rail cars.— (A) GENERAL RULE.—It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person to pur- chase or lease any new rail passenger cars for use in commuter rail transportation, and for which a solicitation is made later than 30 days after the effective date of this section, unless all such rail cars are readily accessible to and usable by individuals with disabilities, includ- ing individuals who use wheelchairs, as pre- scribed by the Secretary of Transportation in regulations issued under section 244. (B) ACCESSIBILITY.—For purposes of section 202 of this Act and section 504 of the Rehabili- tation Act of 1973 (29 U.S.C. 794), a require- ment that a rail passenger car used in com- muter rail transportation be accessible to or readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, shall not be construed to re- quire— (i) a restroom usable by an individual who uses a wheelchair if no restroom is provided in such car for any passenger; (ii) space to fold and store a wheelchair; or (iii) a seat to which a passenger who uses a wheelchair can transfer. (c) USED RAIL CARS.—It shall be considered discrimi- nation for purposes of section 202 of this Act and sec- tion 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person to purchase or lease a used rail pas- senger car for use in intercity or commuter rail trans- portation, unless such person makes demonstrated good faith efforts to purchase or lease a used rail car that is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, as prescribed by the Secretary of Transportation in regulations issued under section 244. (d) REMANUFACTURED RAIL CARS.— (1) REMANUFACTURING.—It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person to remanufacture a rail passenger car for use in intercity or com- muter rail transportation so as to extend its usable life for 10 years or more, unless the rail car, to the maximum extent feasible, is made readily accessi- ble to and usable by individuals with disabilities, including individuals who use wheelchairs, as pre- scribed by the Secretary of Transportation in regu- lations issued under section 244. (2) PURCHASE OR LEASE.—It shall be considered discrimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person to purchase or lease a remanufactured rail passenger car for use in intercity or commuter rail transportation unless such car was remanufactured in accordance with paragraph (1). (e) STATIONS.— (1) NEW STATIONS.—It shall be considered dis- crimination for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for a person to build a new station for use in intercity or commuter rail transportation that is not readily accessible to and usable by indi- viduals with disabilities, including individuals who use wheelchairs, as prescribed by the Secretary of

220 Transportation in regulations issued under section 244. (2) EXISTING STATIONS.— (A) FAILURE TO MAKE READILY ACCESSIBLE.— (i) GENERAL RULE.—It shall be consid- ered discrimination for purposes of section 202 of this Act and section 504 of the Re- habilitation Act of 1973 (29 U.S.C. 794) for a responsible person to fail to make exist- ing stations in the intercity rail transpor- tation system, and existing key stations in commuter rail transportation systems, readily accessible to and usable by indi- viduals with disabilities, including indi- viduals who use wheelchairs, as prescribed by the Secretary of Transportation in regu- lations issued under section 244. (ii) PERIOD FOR COMPLIANCE.— (I) INTERCITY RAIL.—All stations in the intercity rail transportation sys- tem shall be made readily accessible to and usable by individuals with dis- abilities, including individuals who use wheelchairs, as soon as practica- ble, but in no event later than 20 years after the date of enactment of this Act. (II) COMMUTER RAIL.—Key stations in commuter rail transportation sys- tems shall be made readily accessible to and usable by individuals with dis- abilities, including individuals who use wheelchairs, as soon as practicable but in no event later than 3 years af- ter the date of enactment of this Act, except that the time limit may be ex- tended by the Secretary of Transpor- tation up to 20 years after the date of enactment of this Act in a case where the raising of the entire passenger platform is the only means available of attaining accessibility or where other extraordinarily expensive structural changes are necessary to attain acces- sibility. (iii) DESIGNATION OF KEY STATIONS.— Each commuter authority shall designate the key stations in its commuter rail transportation system, in consultation with individuals with disabilities and or- ganizations representing such individuals, taking into consideration such factors as high ridership and whether such station serves as a transfer or feeder station. Be- fore the final designation of key stations under this clause, a commuter authority shall hold a public hearing. (iv) PLANS AND MILESTONES.—The Secre- tary of Transportation shall require the appropriate person to develop a plan for carrying out this subparagraph that re- flects consultation with individuals with disabilities affected by such plan and that establishes milestones for achievement of the requirements of this subparagraph. (B) REQUIREMENT WHEN MAKING ALTERATIONS.— (i) GENERAL RULE.—It shall be consid- ered discrimination, for purposes of section 202 of this Act and section 504 of the Re- habilitation Act of 1973 (29 U.S.C. 794), with respect to alterations of an existing station or part thereof in the intercity or commuter rail transportation systems that affect or could affect the usability of the station or part thereof, for the responsible person, owner, or person in control of the station to fail to make the alternations in such a manner that, to the maximum ex- tent feasible, the altered portions of the station are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon completion of such alterations. (ii) ALTERATIONS TO A PRIMARY FUNCTION AREA.—It shall be considered discrimina- tion, for purposes of section 202 of this Act and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), with respect to al- terations that affect or could affect the us- ability of or access to an area of the station containing a primary function, for the re- sponsible person, owner, or person in con- trol of the station to fail to make the al- terations in such a manner that, to the maximum extent feasible, the path of travel to the altered area, and the bath- rooms, telephones, and drinking fountains serving the altered area, are readily acces- sible to and usable by individuals with dis- abilities, including individuals who use wheelchairs, upon completion of such al- terations, where such alterations to the path of travel or the bathrooms, tele- phones, and drinking fountains serving the altered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria estab- lished by the Attorney General). (C) REQUIRED COOPERATION.—It shall be con- sidered discrimination for purposes of section 202 of this Act and section 504 of the Rehabili- tation Act of 1973 (29 U.S.C. 794) for an owner, or person in control, of a station governed by subparagraph (A) or (B) to fail to provide rea- sonable cooperation to a responsible person with respect to such station in that responsible person's efforts to comply with such subpara- graph. An owner, or person in control, of a sta- tion shall be liable to a responsible person for any failure to provide reasonable cooperation

221 as required by this subparagraph. Failure to receive reasonable cooperation required by this subparagraph shall not be a defense to a claim of discrimination under this Act. Section 243. Conformance of Accessibility Stan- dards.519 Accessibility standards included in regulations issued under this part shall be consistent with the minimum guidelines issued by the Architectural and Transporta- tion Barriers Compliance Board under section 504(a) of this Act. Section 244. Regulations.520 Not later than 1 year after the date of enactment of this Act, the Secretary of Transportation shall issue regulations, in an accessible format, necessary for car- rying out this part. Section 245. Interim Accessibility Require- ments.521 (a) STATIONS.—If final regulations have not been is- sued pursuant to section 244, for new construction or alterations for which a valid and appropriate State or local building permit is obtained prior to the issuance of final regulations under such section, and for which the construction or alteration authorized by such permit begins within one year of the receipt of such permit and is completed under the terms of such permit, compli- ance with the Uniform Federal Accessibility Standards in effect at the time the building permit is issued shall suffice to satisfy the requirement that stations be read- ily accessible to and usable by persons with disabilities as required under section 242(e), except that, if such final regulations have not been issued one year after the Architectural and Transportation Barriers Compli- ance Board has issued the supplemental minimum guidelines required, under section 504(a) of this Act, compliance with such supplemental minimum guide- lines shall be necessary to satisfy the requirement that stations be readily accessible to and usable by persons with disabilities prior to issuance of the final regula- tions. (b) RAIL PASSENGER CARS.—If final regulations have not been issued pursuant to section 244, a person shall be considered to have complied with the requirements of section 242 (a) through (d) that a rail passenger car be readily accessible to and usable by individuals with disabilities, if the design for such car complies with the laws and regulations (including the Minimum Guide- lines and Requirements for Accessible Design and such supplemental minimum guidelines as are issued under section 504(a) of this Act) governing accessibility of such cars, to the extent that such laws and regulations are not inconsistent with this part and are in effect at the time such design is substantially completed. 519 42 U.S.C. § 12163. 520 42 U.S.C. § 12164. 521 42 U.S.C. § 12165. Section 246. Effective Date. (a) GENERAL RULE.—Except as provided in subsection (b), this part shall become effective 18 months after the date of enactment of this Act. (b) EXCEPTION.—Sections 242 and 244 shall become effective on the date of enactment of this Act. * * * SECTION 504 OF THE REHABILITATION ACT OF 1973, AS AMENDED (PUBLIC LAW 93-112, SEPTEMBER 26, 1973; 29 U.S.C. § 794) 29 U.S.C. § 794. Nondiscrimination Under Federal Grants and Programs; Promulgation of Rules and Regulations (a) PROMULGATION OF RULES AND REGULATIONS.—No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be ex- cluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or un- der any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees. (b) “PROGRAM OR ACTIVITY” DEFINED.—For the pur- poses of this section, the term “program or activity” means all of the operations of— (1)(A) a department, agency, special purpose dis- trict, or other instrumentality of a State or of a lo- cal government; or (B) the entity of such State or local govern- ment that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; (2)(A) a college, university, or other postsecond- ary institution, or a public system of higher educa- tion; or (B) a local educational agency (as defined in section 7801 of title 20), system of vocational education, or other school system; (3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietor- ship—

222 (i) if assistance is extended to such cor- poration, partnership, private organiza- tion, or sole proprietorship as a whole; or (ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (B) the entire plant or other comparable, geographically separate facility to which Fed- eral financial assistance is extended, in the case of any other corporation, partnership, pri- vate organization, or sole proprietorship; or (4) any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3); any part of which is extended Federal financial assis- tance. (c) SIGNIFICANT STRUCTURAL ALTERATIONS BY SMALL PROVIDERS.—Small providers are not required by sub- section (a) of this section to make significant structural alterations to their existing facilities for the purpose of assuring program accessibility, if alternative means of providing the services are available. The terms used in this subsection shall be construed with reference to the regulations existing on March 22, 1988. (d) Standards used in determining violation of sec- tion.—The standards used to determine whether this section has been violated in a complaint alleging em- ployment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201–12204 and 12210), as such sections relate to em- ployment. (As amended, Pub. L. 95-602, title I, §§ 119, 122(d)(2), Nov. 6, 1978; Pub. L. 99-506, title I, Sec. 103(d)(2)(B), title X, § 1002(e)(4), Oct. 21, 1986; Pub. L. 100-259, § 4, Mar. 22, 1988; Pub. L. 100-630, title II, § 206(d), Nov. 7, 1988; Pub. L. 102-569, title I, § 102(p)(32), title V, § 506, Oct. 29, 1992; Pub. L. 103-382, title III, § 394(i)(2), Oct. 20, 1994; Pub. L. 105-220, title IV § 408(a)(3), Aug. 7, 1998; Pub. L. 107-110, title X, § 1076(u)(2), Jan. 8, 2002.) EXCERPTS FROM TITLES VI AND VII OF THE CIVIL RIGHTS ACT OF 1964 (PUBLIC LAW 88-352, JULY 2, 1964; 42 U.S.C. § 2000D) 42 U.S.C. § 2000d. Prohibition against Exclusion from Participation in, Denial of Benefits of, and Discrimination under Federally Assisted Programs on Ground of Race, Color, or National Origin No person in the United States shall, on the ground of race, color, or national origin, be excluded from par- ticipation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiv- ing Federal financial assistance. 42 U.S.C. § 2000d-1. Federal Authority and Financial Assistance to Programs or Activities by Way of Grant, Loan, or Contract Other Than Contract of Insurance or Guaranty; Rules and Regulations; Approval by President; Compliance with Requirements; Reports to Congressional Committees; Effective Date of Administrative Action Each Federal department and agency which is em- powered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is au- thorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the ter- mination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such non- compliance has been so found, or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminat- ing, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursu- ant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the pro- gram or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report. 42 U.S.C. § 2000d-2. Judicial Review; Administrative Procedure Provisions Any department or agency action taken pursuant to section 2000d-1 of this title shall be subject to such ju- dicial review as may otherwise be provided by law for similar action taken by such department or agency on other grounds. In the case of action, not otherwise sub- ject to judicial review, terminating or refusing to grant or to continue financial assistance upon a finding of failure to comply with any requirement imposed pursu- ant to section 2000d-1 of this title, any person aggrieved

223 (including a State or political subdivision thereof and any agency of either) may obtain judicial review of such action in accordance with chapter 7 of Title 5, and such action shall not be deemed committed to unreviewable agency discretion within the meaning of that chapter. 42 U.S.C. § 2000d-3. Construction of Provisions Not to Authorize Administrative Action with Respect to Employment Practices Except Where Primary Objective of Federal Financial Assistance is to Provide Employment Nothing contained in this subchapter522 shall be con- strued to authorize action under this subchapter by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment. 42 U.S.C. § 2000d-4. Federal Authority and Financial Assistance to Programs or Activities by Way of Contract of Insurance or Guaranty Nothing in this subchapter shall add to or detract from any existing authority with respect to any pro- gram or activity under which Federal financial assis- tance is extended by way of a contract of insurance or guaranty. 42 U.S.C. § 2000d-4a. “Program or Activity” Defined For the purposes of this subchapter, the term “pro- gram or activity” and the term “program” mean all of the operations of— (1)(A) a department, agency, special purpose dis- trict, or other instrumentality of a State or of a lo- cal government; or (B) the entity of such State or local govern- ment that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; (2)(A) a college, university, or other postsecond- ary institution, or a public system of higher educa- tion; or (B) a local educational agency (as defined in section 7801 of title 20),523 system of vocational education, or other school system; (3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietor- ship— 522 This subchapter refers to tit. VI of the Civil Rights Act of 1964. 523 Sec. 391(q) of Pub. L. No. 103-382 substituted “section 8801 of title 20” for “section 198(a)(10) of the Elementary and Secondary Education Act of 1965”. Sec. 1076(y) of Pub. L. No. 107-110 substituted “7801” for “8801”. (i) if assistance is extended to such cor- poration, partnership, private organiza- tion, or sole proprietorship as a whole; or (ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (B) the entire plant or other comparable, geographically separate facility to which Fed- eral financial assistance is extended, in the case of any other corporation, partnership, pri- vate organization, or sole proprietorship; or (4) any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3); any part of which is extended Federal financial assis- tance. TITLE VII—EQUAL EMPLOYMENT OPPORTUNITY 42 U.S.C. § 2000e-16. Employment by Federal Government (a) Discriminatory practices prohibited; employees or applicants for employment sub- ject to coverage All personnel actions affecting employees or appli- cants for employment (except with regard to aliens em- ployed outside the limits of the United States) in mili- tary departments as defined in section 102 of title 5, in executive agencies as defined in section 105 of title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Com- mission, in those units of the Government of the Dis- trict of Columbia having positions in the competitive service, and in those units of the judicial branch524 of the Federal Government having positions in the com- petitive service, in the Smithsonian Institution,525 and in the Government Printing Office, the General Ac- counting Office, and the526 Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin. (b) Equal Employment Opportunity Com- mission; enforcement powers; issuance of rules, regulations, etc.; annual review and approval of national and regional equal em- ployment opportunity plans; review and evaluation of equal employment opportunity programs and publication of progress reports; consultations with interested parties; compli- ance with rules, regulations, etc.; contents of 524 Pub. L. No. 104-1 struck “units of the legislative and ju- dicial branches” and inserted “units of the judicial branch”. 525 Pub. L. No. 105-220 inserted “in the Smithsonian Institu- tion,” before “and in the Government Printing Office,”. 526 Pub. L. No. 104-1 inserted “Government Printing Office, the General Accounting Office, and the” before “Library of Congress”.

224 national and regional equal employment op- portunity plans; authority of Librarian of Congress Except as otherwise provided in this subsection, the Equal Employment Opportunity Commission shall have authority to enforce the provisions of subsection (a) of this section through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section, and shall issue such rules, regulations, orders and in- structions as it deems necessary and appropriate to carry out its responsibilities under this section. The Equal Employment Opportunity Commission shall— (1) be responsible for the annual review and ap- proval of a national and regional equal employment opportunity plan which each department and agency and each appropriate unit referred to in subsection (a) of this section shall submit in order to maintain an affirmative program of equal em- ployment opportunity for all such employees and applicants for employment; (2) be responsible for the review and evaluation of the operation of all agency equal employment opportunity programs, periodically obtaining and publishing (on at least a semiannual basis) pro- gress reports from each such department, agency, or unit; and (3) consult with and solicit the recommendations of interested individuals, groups, and organizations relating to equal employment opportunity. The head of each such department, agency, or unit shall comply with such rules, regulations, orders, and instructions which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimi- nation filed by him thereunder. The plan submitted by each department, agency, and unit shall include, but not be limited to— (1) provision for the establishment of training and education programs designed to provide a maximum opportunity for employees to advance so as to perform at their highest potential; and (2) a description of the qualifications in terms of training and experience relating to equal employ- ment opportunity for the principal and operating officials of each such department, agency, or unit responsible for carrying out the equal employment opportunity program and of the allocation of per- sonnel and resources proposed by such department, agency, or unit to carry out its equal employment opportunity program. With respect to employment in the Library of Con- gress, authorities granted in this subsection to the Equal Employment Opportunity Commission shall be exercised by the Librarian of Congress. (c) Civil action by employee or applicant for employment for redress of grievances; time for bringing of action; head of department, agency, or unit as defendant Within 90 days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Equal Employ- ment Opportunity Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, relig- ion, sex or national origin, brought pursuant to subsec- tion (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Equal Employ- ment Opportunity Commission on appeal from a deci- sion or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employ- ment, if aggrieved by the final disposition of his com- plaint, or by the failure to take final action on his com- plaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant. (d) Section 2000e-5(f) through (k) of this title applicable to civil actions The provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder, and the same interest to compensate for delay in payment shall be available as in cases involv- ing nonpublic parties.527 (e) Government agency or official not relieved of responsibility to assure nondiscrimination in employment or equal employment opportunity Nothing contained in this Act528 shall relieve any Government agency or official of its or his primary re- sponsibility to assure nondiscrimination in employment as required by the Constitution and statutes or of its or his responsibilities under Executive Order 11478 relat- ing to equal employment opportunity in the Federal Government. 42 U.S.C. § 2000e-17. Procedure for Denial, Withholding, Termination, or Suspension of Government Contract Subsequent to Acceptance by Government of Affirmative Action Plan of Employer; Time of Acceptance of Plan No Government contract, or portion thereof, with any employer, shall be denied, withheld, terminated, or suspended, by any agency or officer of the United States under any equal employment opportunity law or order, where such employer has an affirmative action plan which has previously been accepted by the Government for the same facility within the past twelve months without first according such employer full hearing and adjudication under the provisions of section 554 of Title 5, and the following pertinent sections: Provided, That if such employer has deviated substantially from such previously agreed to affirmative action plan, this sec- 527 So in original. 528 Pub. L. No. 88-352, July 2, 1964, 78 Stat. 241, as amended, known as the Civil Rights Act of 1964.

225 tion shall not apply: Provided, further, That for the purposes of this section an affirmative action plan shall be deemed to have been accepted by the Government at the time the appropriate compliance agency has ac- cepted such plan unless within forty-five days thereaf- ter the Office of Federal Contract Compliance has dis- approved such plan. DAVIS-BACON ACT (ACT OF MARCH 3, 1931, C411; 40 U.S.C. § 276A) 40 U.S.C. § 276a. Rate of Wages for Laborers and Mechanics (a) The advertised specifications for every contract in excess of $2,000, to which the United States or the Dis- trict of Columbia is a party, for construction, alteration, and/or repair, including painting and decorating, of public buildings or public works of the United States or the District of Columbia within the geographical limits of the States of the Union, or the District of Columbia, and which requires or involves the employment of me- chanics and/or laborers shall contain a provision stating the minimum wages to be paid various classes of labor- ers and mechanics which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, village, or other civil subdivision of the State, in which the work is to be performed, or in the District of Columbia if the work is to be performed there; and every contract based upon these specifications shall contain a stipulation that the contractor or his subcontractor shall pay all mechanics and laborers employed directly upon the site of the work, unconditionally and not less often than once a week and without subsequent deduction or rebate on any account, the full amounts accrued at time of pay- ment, computed at wage rates not less than those stated in the advertised specifications, regardless of any contractual relationship which may be alleged to exist between the contractor or subcontractor and such la- borers and mechanics, and that the scale of wages to be paid shall be posted by the contractor in a prominent and easily accessible place at the site of the work; and the further stipulation that there may be withheld from the contractor so much of accrued payments as may be considered necessary by the contracting officer to pay to laborers and mechanics employed by the contractor or any subcontractor on the work the difference between the rates of wages required by the contract to be paid laborers and mechanics on the work and the rates of wages received by such laborers and mechanics and not refunded to the contractor, subcontractors, or their agents. (b) As used in sections 276a to 276a-5 of this title the term “wages”, “scale of wages”, “wage rates”, “minimum wages”, and “prevailing wages” shall include— (1) the basic hourly rate of pay; and (2) the amount of— (A) the rate of contribution irrevocably made by a contractor or subcontractor to a trustee or to a third person pursuant to a fund, plan, or program; and (B) the rate of costs of the contractor or sub- contractor which may be reasonably antici- pated in providing benefits to laborers and me- chanics pursuant to an enforceable commitment to carry out a financially respon- sible plan or program which was communi- cated in writing to the laborers and mechanics affected, for medical or hospital care, pensions on retirement or death, compensation for inju- ries or illness resulting from occupational ac- tivity, or insurance to provide any of the fore- going, for unemployment benefits, life insurance, disability and sickness insurance, or accident insurance, for vacation and holiday pay, for defraying costs of apprenticeship or other similar programs, or for other bona fide fringe benefits, but only where the contractor or subcontractor is not required by other Fed- eral, State, or local law to provide any of such benefits: Provided, That the obligation of a contractor or subcontractor to make payment in accor- dance with the prevailing wage determinations of the Secretary of Labor, insofar as sections 276a to 276a-5 of this title and other Acts in- corporating sections 276a and 276a-5 of this ti- tle by reference are concerned may be dis- charged by the making of payments in cash, by the making of contributions of a type referred to in paragraph (2)(A), or by the assumption of an enforceable commitment to bear the costs of a plan or program of a type referred to in para- graph (2)(B), or any combination thereof, where the aggregate of any such payments, contributions, and costs is not less than the rate of pay described in paragraph (1) plus the amount referred to in paragraph (2). In determining the overtime pay to which the la- borer or mechanic is entitled under any Federal law, his regular or basic hourly rate of pay (or other alternative rate upon which premium rate of over- time compensation is computed) shall be deemed to be the rate computed under paragraph (1), except that where the amount of payments, contributions, or costs incurred with respect to him exceeds the prevailing wage applicable to him under sections 276a to 276a-5 of this title, such regular or basic hourly rate of pay (or such other alternative rate) shall be arrived at by deducting from the amount of payments, contributions, or costs actually incurred with respect to him, the amount of contributions or costs of the types described in paragraph (2) actu- ally incurred with respect to him, or the amount determined under paragraph (2) but not actually paid, whichever amount is the greater.

226 40 U.S.C. § 276a-1. Termination of Work on Failure to Pay Agreed Every contract within the scope of sections 276a to 276a-5 of this title shall contain the further provision that in the event it is found by the contracting officer that any laborer or mechanic employed by the contrac- tor or any subcontractor directly on the site of the work covered by the contract has been or is being paid a rate of wages less than the rate of wages required by the contract to be paid as aforesaid, the Government may, by written notice to the contractor, terminate his right to proceed with the work or such part of the work as to which there has been a failure to pay said required wages and to prosecute the work to completion by con- tract or otherwise, and the contractor and his sureties shall be liable to the Government for any excess costs occasioned the Government thereby. 40 U.S.C. § 276a-2. Payments of Wages by Comptroller General from Withheld Payments; Listing Contractors Violating Contracts (a) The Comptroller General of the United States is authorized and directed to pay directly to laborers and mechanics from any accrued payments withheld under the terms of the contract any wages found to be due laborers and mechanics pursuant to sections 276a to 276a-5 of this title; and the Comptroller General of the United States is further authorized and is directed to distribute a list of all departments of the Government giving the names of persons or firms whom he has found to have disregarded their obligations to employ- ees and subcontractors. No contract shall be awarded to the persons or firms appearing on this list or to any firm, corporation, partnership, or association in which such persons or firms have an interest until three years have elapsed from the date of publication of the list con- taining the names of such persons or firms. (b) If the accrued payments withheld under the terms of the contract, as aforesaid, are insufficient to reim- burse all the laborers and mechanics, with respect to whom there has been a failure to pay the wages re- quired pursuant to sections 276a to 276a-5 of this title, such laborers and mechanics shall have the right of action and/or of intervention against the contractor and his sureties conferred by law upon persons furnishing labor or materials, and in such proceedings it shall be no defense that such laborers and mechanics accepted or agreed to accept less than the required rate of wages or voluntarily made refunds. 40 U.S.C. § 276a-3. Effect on Other Federal Laws Sections 276a to 276a-5 of this title shall not be con- strued to supersede or impair any authority otherwise granted by Federal law to provide for the establishment of specific wage rates. 40 U.S.C. § 276a-4. Effective Date of Sections 276A TO 276A-5 Sections 276a to 276a-5 of this title shall take effect thirty days after August 30, 1935, but shall not affect any contract then existing or any contract that may thereafter be entered into pursuant to invitations for bids that are outstanding on August 30, 1935. 40 U.S.C. § 276a-5. Suspension of Sections 276A to 276A-5 During Emergency In the event of a national emergency the President is authorized to suspend the provisions of sections 276a to 276a-5 of this title. PROTECTION OF PUBLIC LANDS “Section 4(f)”529 49 U.S.C. § 303. Policy on Lands, Wildlife and Waterfowl Refuges, and Historic Sites (a) It is the policy of the United States Government that special effort should be made to preserve the natu- ral beauty of the country-side and public park and rec- reation lands, wildlife and waterfowl refuges, and his- toric sites. (b) The Secretary of Transportation shall cooperate and consult with the Secretary of the Interior, Housing and Urban Development, and Agriculture, and with the States, in developing transportation plans and pro- grams that include measures to maintain or enhance the natural beauty of lands crossed by transportation activities or facilities. (c) The Secretary may approve a transportation pro- gram or project (other than any project for a park road or parkway under section 204 of title 23)530 requiring the use of publicly owned land of a public park, recrea- tion area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by 529 Pub. L. No. 97-449 repealed § 4(f) of the Department of Transportation Act of 1966 and recodified it without substan- tive change at § 303 of tit. 49. However, because a whole body of Departmental policy and case law has been developed and referred to as “Section 4(f) Law,” the U.S. Department of Transportation, the Federal Transit Administration, and the Federal Highway Administration continue to use the “Section 4(f)” reference in agency regulations when referring to actions under § 303 of tit. 49. See app. D for text of § 4(f). This provision was interpreted and applied by the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). The Court held that the action of the Secre- tary approving a project covered by this section is subject to judicial review to determine whether the Secretary's determi- nation was arbitrary and capricious. 530 Sec. 133(d) of Pub. L. No. 100-17 inserted “(other than any project for a park road or parkway under section 204 of title 23)”.

227 the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site) only if— (1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use. EXCERPTS FROM THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 (PUBLIC LAW 91-190, JANUARY 1, 1970) * * * 42 U.S.C. § 4321. Congressional declaration of purpose The purposes of this chapter are: To declare a na- tional policy which will encourage productive and enjoyable harmony between man and his environ- ment; to promote efforts which will prevent or eliminate damage to the environment and bio- sphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environ- mental Quality. Subchapter I.—POLICIES AND GOALS 42 U.S.C. § 4331. Congressional Declaration of National Environmental Policy (a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbaniza- tion, industrial expansion, resource exploitation, and new and expanding technological advances and recog- nizing further the critical importance of restoring and maintaining environmental quality to the overall wel- fare and development of man, declares that it is the continuing policy of the Federal Government, in coop- eration with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to fos- ter and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, eco- nomic, and other requirements of present and future generations of Americans. (b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Fed- eral Government to use all practicable means, consis- tent with other essential considerations of national pol- icy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may— (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding gen- erations; (2) assure for all Americans safe, healthful, pro- ductive, and esthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unin- tended consequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and main- tain, wherever possible, an environment which supports diversity and variety of individual choice; (5) achieve a balance between population and re- source use which will permit high standards of liv- ing and a wide sharing of life's amenities; and (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. (c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment. 42 U.S.C. § 4332. Cooperation of Agencies; Reports; Availability of Information; Recommendations; International and National Coordination of Efforts The Congress authorizes and directs that, to the full- est extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall— (A) utilize a systematic, interdisciplinary ap- proach which will insure the integrated use of the natural and social sciences and the envi- ronmental design arts in planning and in deci- sionmaking which may have an impact on man's environment; (B) identify and develop methods and proce- dures, in consultation with the Council on En- vironmental Quality established by subchapter II of this chapter, which will insure that pres- ently unquantified environmental amenities and values may be given appropriate consid- eration in decisionmaking along with economic and technical considerations; (C) include in every recommendation or re- port on proposals for legislation and other ma- jor Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the pro- posed action, (ii) any adverse environmental effects which cannot be avoided should the pro- posal be implemented, (iii) alternatives to the proposed action,

228 (iv) the relationship between local short- term uses of man's environment and the maintenance and enhancement of long- term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the re- sponsible Federal official shall consult with and ob- tain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce envi- ronmental standards, shall be made available to the President, the Council on Environmental Qual- ity and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes; (D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal action funded under a pro- gram of grants to States shall not be deemed to be legally insufficient solely by reason of hav- ing been prepared by a State agency or official, if: (i) the State agency or official has state- wide jurisdiction and has the responsibility for such action, (ii) the responsible Federal official fur- nishes guidance and participates in such preparation, (iii) the responsible Federal official inde- pendently evaluates such statement prior to its approval and adoption, and (iv) after January 1, 1976, the responsi- ble Federal official provides early notifica- tion to, and solicits the views of, any other State or any Federal land management en- tity of any action or any alternative thereto which may have significant im- pacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, pre- pares a written assessment of such im- pacts and views for incorporation into such detailed statement. The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement or of any other responsibility under this Chapter; and further, this subparagraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide jurisdic- tion.531 531 So in original. The period probably should be a semicolon. (E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved con- flicts concerning alternative uses of available resources; (F) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to ini- tiatives, resolutions, and programs designed to maximize international cooperation in antici- pating and preventing a decline in the quality of mankind's world environment; (G) make available to States, counties, mu- nicipalities, institutions, and individuals, ad- vice and information useful in restoring, main- taining, and enhancing the quality of the environment; (H) initiate and utilize ecological information in the planning and development of resource- oriented projects; and (I) assist the Council on Environmental Quality established by subchapter II of this chapter. 42 U.S.C. § 4333. Conformity of Administrative Procedures to National Environmental Policy All agencies of the Federal Government shall review their present statutory authority, administrative regu- lations, and current policies and procedures for the purpose of determining whether there are any deficien- cies or inconsistencies therein which prohibit full com- pliance with the purposes and provisions of this chapter and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter. 42 U.S.C. § 4334. Other Statutory Obligations of Agencies Nothing in section 4332 or 4333 of this title shall in any way affect the specific statutory obligations of any Federal agency (1) to comply with criteria or standards of environmental quality, (2) to coordinate or consult with any other Federal or State agency, or (3) to act, or refrain from acting contingent upon the recommenda- tions or certification of any other Federal or State agency. 42 U.S.C. § 4335. Efforts Supplemental to Existing Authorizations The policies and goals set forth in this chapter are supplementary to those set forth in existing authoriza- tions of Federal agencies.

229 SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT OF 1966 (PUBLIC LAW 89- 665, OCTOBER 15, 1966; 16 U.S.C. § 470F) 16 U.S.C. § 470f. Effect of Federal Undertakings upon Property Listed in National Register; Comment by Advisory Council on Historic Preservation The head of any Federal agency having direct or indi- rect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having au- thority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the un- dertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in532 the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking. (Pub.L. 89-665, Title I, § 106, Oct. 15, 1966, 80 Stat. 917; Pub.L. 94-422, Title II, § 201(3), Sept. 28, 1976, 90 Stat. 1320.) INTERGOVERNMENTAL REVIEW OF FEDERAL PROGRAMS EXECUTIVE ORDER 12372533 By the authority vested in me as President by the Constitution and laws of the United States of America, including Section 401(a) of the Intergovernmental Co- operation Act of 1968 (42 U.S.C. 4231(a)) and Section 301 of Title 3 of the United States Code, and in order to foster an intergovernmental partnership and a strengthened federalism by relying on State and local processes for the State and local government coordina- tion and review of proposed Federal financial assistance and direct Federal development, it is hereby ordered as follows: Section 1. Federal agencies shall provide opportuni- ties for consultation by elected officials of those State and local governments that would provide the non- Federal funds for, or that would be directly affected by, proposed Federal financial assistance or direct Federal development. Section 2. To the extent the States, in consultation with local general purpose governments, and local spe- cial purpose governments they consider appropriate, develop their own processes or refine existing processes for State and local elected officials to review and coor- 532 Sec. 201(3) of Pub. L. No. 94-422 inserted “or eligible for inclusion in”. 533 Executive Order 12372, issued July 14, 1982 (47 Fed. Reg. 30959), revokes OMB Circular A-95. dinate proposed Federal financial assistance and direct Federal development, the Federal agencies shall, to the extent permitted by law: (a) Utilize the State process to determine official views of State and local elected officials. (b) Communicate with State and local elected officials as early in the program planning cycle as is reasonably feasible to explain specific plans and actions. (c) Make efforts to accommodate State and local elected officials' concerns with proposed Federal finan- cial assistance and direct Federal development that are communicated through the designated State process. For those cases where the concerns cannot be accom- modated, Federal officials shall explain the bases for their decision in a timely manner. (d) Allow the States to simplify and consolidate exist- ing federally required State plan submissions. Where State planning and budgeting systems are sufficient and where permitted by law, the substitution of State plans for federally required State plans shall be encour- aged by the agencies. (e) Seek the coordination of views of affected State and local elected officials in one State with those of an- other State when proposed Federal financial assistance or direct Federal development has an impact on inter- state metropolitan urban centers or other interstate areas. Existing interstate mechanisms that are redes- ignated as part of the State process may be used for this purpose. (f) Support State and local governments by discourag- ing the reauthorization or creation of any planning or- ganization which is federally-funded, which has a fed- erally-prescribed membership, which is established for a limited purpose, and which is not adequately repre- sentative of, or accountable to, State or local elected officials. Section 3. (a) The State process referred to in section 2 shall include those where States delegate, in specific instances, to local elected officials the review, coordina- tion, and communication with Federal agencies. (b) At the discretion of the State and local elected offi- cials, the State process may exclude certain Federal programs from review and comment. Section 4. The Office of Management and Budget (OMB) shall maintain a list of official State entities designated by the States to review and coordinate pro- posed Federal financial assistance and direct Federal development. The Office of Management and Budget shall disseminate such lists to the Federal agencies. Section 5. (a) Agencies shall propose rules and regu- lations governing the formulation, evaluation, and re- view of proposed Federal financial assistance and direct Federal development pursuant to this Order, to be submitted to the Office of Management and Budget for approval. (b) The rules and regulations which result from the process indicated in Section 5(a) above shall replace any current rules and regulations and become effective April 30, 1983.

230 Section 6. The Director of the Office of Management and Budget is authorized to prescribe such rules and regulations, if any, as he deems appropriate for the effec- tive implementation and administration of this Order and the Intergovernmental Cooperation Act of 1968. The Director is also authorized to exercise the authority vested in the President by Section 401(a) of that Act (42 U.S.C. 4231(a)), in a manner consistent with this Order. Section 7. The Memorandum of November 8, 1968, is terminated (33 Fed. Reg. 16487, November 13, 1968). The Director of the Office of Management and Budget shall revoke OMB Circular A-95, which was issued pur- suant to that Memorandum. However, Federal agencies shall continue to comply with the rules and regulations issued pursuant to that Memorandum, including those issued by the Office of Management and Budget, until new rules and regulations have been issued in accord with this Order. Section 8. The Director of the Office of Management and Budget shall report to the President within two years on Federal agency compliance with this Order. The views of State and local elected officials on their experi- ences with these policies, along with any suggestions for improvement, will be included in the Director's report. EXCERPT FROM FEDERAL RAILROAD SAFETY ACT OF 1970534 (PUBLIC LAW 91-458, OCTOBER 16, 1970; 45 U.S.C. § 431 ET SEQ.) 45 U.S.C. § 431. Promulgation of Rules, Regulations, Orders, and Standards535 (As amended Pub. L. 100-342, § 4(a), 7, 9, 10, 19(a), 21, 22, 23, June 22, 1988, 102 Stat. 625, 628, 629, 637, 638, 639.) 534 This Act was held applicable to rapid rail transit in United States v. Mass. Bay Transp. Auth., 360 F. Supp. 698 (D. Mass. 1973). Where mass transportation activities are in- volved, the provisions of this Act will be jointly administered by UMTA and the Federal Railroad Administration (FRA) pursu- ant to Delegation by the Secretary of Transportation (see 40 Fed. Reg. 6656, Feb. 13, 1975). 535 Secs. 431–447 were repealed by § 7(b) of Pub. L. No. 103- 272, July 5, 1994, 108 Stat. 1379. 45 U.S.C. § 431(e) provided: The term “railroad” as used in this subchapter means all forms of non-highway ground transportation that run on rails or electro-magnetic guideways, including (1) commuter or other short-haul rail passenger service in a metropolitan or suburban area, as well as any commuter rail service which was operated by the Consolidated Rail Corporation as of January 1, 1979, and (2) high speed ground transportation systems that connect met- ropolitan areas, without regard to whether they use new tech- nologies not associated with traditional railroads. Such term does not include rapid transit operations within an urban area that are not connected to the general railroad system of trans- portation. SECTIONS 176 AND 219 OF THE CLEAN AIR ACT (PUBLIC LAW 95-95, AUGUST 7, 1977; 42 U.S.C. § 7401 ET SEQ.) 42 U.S.C. § 7506. Limitations on Certain Federal Assistance.536 *** (c) ACTIVITIES NOT CONFORMING TO APPROVED OR PROMULGATED PLANS (1) No department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, li- cense or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated under sec- tion 10 or 7410. No metropolitan planning organi- zation designated under section 134 of title 23, shall give its approval to any project, program, or plan which does not conform to an implementation plan approved or promulgated under section 10 of this title. The assurance of conformity to such an implementation plan shall be an affirmative re- sponsibility of the head of such department, agency, or instrumentality. Conformity to an im- plementation plan means— (A) conformity to an implementation plan's purpose of eliminating or reducing the severity and number of violations of the national ambi- ent air quality standards and achieving expedi- tious attainment of such standards; and (B) that such activities will not— (i) cause or contribute to any new viola- tion of any standard in any area; (ii) increase the frequency or severity of any existing violation of any standard in any area; or (iii) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area. The determination of conformity shall be based on the most recent estimates of emissions, and such estimates shall be determined from the most recent population, employment, travel and congestion estimates as deter- mined by the metropolitan planning organization or other agency authorized to make such estimates. (2) Any transportation plan or program devel- oped pursuant to title 23 or chapter 53 of title 49537 536 Subsecs. (a) and (b), repealed by sec. 110(4) of Pub. L. No. 101-549. 537 “[C]hapter 53 of title 49” was substituted for “the Urban Mass Transportation Act [49 App. U.S.C. 1601 et seq.]” based on § 6(b) of Pub. L. No. 103-272, July 5, 1994, 108 Stat. 1378 (the first section of which enacted subtits. II, III, and V to X of tit. 49, Transportation), and § 3003(b), tit. III of Pub. L. No. 102-240, Dec. 18, 1991, 105 Stat. 2088, which provided that references in laws to the UMT Act of 1964 be deemed to be references to the Federal Transit Act.

231 shall implement the transportation provisions of any applicable implementation plan approved un- der this chapter applicable to all or part of the area covered by such transportation plan or program. No Federal agency may approve, accept or fund any transportation plan, program or project unless such plan, program or project has been found to conform to any applicable implementation plan in effect un- der this chapter. In particular— (A) no transportation plan or transportation improvement program may be adopted by a metropolitan planning organization designated under title 23 or chapter 53 of title 49,538 or be found to be in conformity by a metropolitan planning organization until a final determina- tion has been made that emissions expected from implementation of such plans and pro- grams are consistent with estimates of emis- sions from motor vehicles and necessary emis- sions reductions contained in the applicable implementation plan, and that the plan or pro- gram will conform to the requirements of para- graph (1)(B); (B) no metropolitan planning organization or other recipient of funds under title 23 or chap- ter 53 of title 49 shall adopt or approve a transportation improvement program of pro- jects until it determines that such program provides for timely implementation of trans- portation control measures consistent with schedules included in the applicable implemen- tation plan; (C) a transportation project may be adopted or approved by a metropolitan planning or- ganization or any recipient of funds designated under title 23 or chapter 53 of title 49, or found in conformity by a metropolitan planning or- ganization or approved, accepted, or funded by the Department of Transportation only if it meets either the requirements of subparagraph (D) or the following requirements— (i) such a project comes from a conform- ing plan and program; (ii) the design concept and scope of such project have not changed significantly since the conformity finding regarding the plan and program from which the project derived; and (iii) the design concept and scope of such project at the time of the conformity de- termination for the program was adequate to determine emissions. 538 “[C]hapter 53 of title 49” was substituted for “the Urban Mass Transportation Act [49 App. U.S.C. 1601 et seq.]” based on § 6(b) of Pub. L. No. 103-272, July 5, 1994, 108 Stat. 1378 (the first section of which enacted subtits. II, III, and V to X of tit. 49, Transportation), and § 3003(b), tit. III of Pub. L. No. 102-240, Dec. 18, 1991, 105 Stat. 2088, which provided that references in laws to the UMT Act of 1964 be deemed to be references to the Federal Transit Act. (D) Any project not referred to in subpara- graph (C) shall be treated as conforming to the applicable implementation plan only if it is demonstrated that the projected emissions from such project, when considered together with emissions projected for the conforming transportation plans and programs within the nonattainment area, do not cause such plans and programs to exceed the emission reduction projections and schedules assigned to such plans and programs in the applicable imple- mentation plan. (E)539 The appropriate metropolitan planning organization shall redetermine conformity of existing transportation plans and programs not later than 2 years after the date on which the Administrator— (i) finds a motor vehicle emissions budget to be adequate in accordance with section 93.118(e)(4) of title 40, Code of Federal Regulations (as in effect on Octo- ber 1, 2004); (ii) approves an implementation plan that establishes a motor vehicle emissions budget if that budget has not yet been de- termined to be adequate in accordance with clause (i); or (iii) promulgates an implementation plan that establishes or revises a motor vehicle emissions budget. (3) Until such time as the implementation plan revision referred to in paragraph (4)(C) is approved, conformity of such plans, programs, and projects will be demonstrated if— (A) the transportation plans and programs— (i) are consistent with the most recent estimates of mobile source emissions; (ii) provide for the expeditious imple- mentation of transportation control meas- ures in the applicable implementation plan; and (iii) with respect to ozone and carbon monoxide nonattainment areas, contribute to annual emissions reductions consistent with sections 7511a(b)(1) and 7512a(a)(7) of this title; and (B) the transportation projects— (i) come from a conforming transporta- tion plan and program as defined in sub- paragraph (A) or for 12 months after No- vember 15, 1990, from a transportation program found to conform within 3 years prior to November 15, 1990; and (ii) in carbon monoxide nonattainment areas, eliminate or reduce the severity and number of violations of the carbon monox- 539 Sec. 6011(a) of Pub. L. No. 109-59 added this subpara- graph.

232 ide standards in the area substantially af- fected by the project. With regard to subparagraph (B)(ii), such de- termination may be made as part of either the conformity determination for the transporta- tion program or for the individual project taken as a whole during the environmental review phase of project development. (4) CRITERIA AND PROCEDURES FOR DETERMINING CONFORMITY.— (A) IN GENERAL.—The Administrator shall promulgate, and periodically update,540 criteria and procedures for determining conformity (ex- cept in the case of transportation plans, pro- grams, and projects) of, and for keeping the Administrator informed about, the activities referred to in paragraph (1). (B) TRANSPORTATION PLANS, PROGRAMS, AND PROJECTS.—The Administrator, with the con- currence of the Secretary of Transportation, shall promulgate, and periodically update,541 criteria and procedures for demonstrating and assuring conformity in the case of transporta- tion plans, programs, and projects. (C) CIVIL ACTION TO COMPEL PROMULGATION.— A civil action542 may be brought against the Administrator and the Secretary of Transpor- tation under section 7604 of this title to compel promulgation of such criteria and procedures and the Federal district court shall have juris- diction to order such promulgation. (D)543 The procedures and criteria shall, at a minimum— (i) address the consultation procedures to be undertaken by metropolitan planning organizations and the Secretary of Trans- portation with State and local air quality agencies and State departments of trans- portation before such organizations and the Secretary make conformity determina- tions; (ii)544 address the appropriate frequency for making conformity determinations, but 540 Sec. 6011(f)(2) of Pub. L. No. 109-59 struck “(4)(A) No later than one year after the date of enactment of the Clean Air Act Amendments of 1990, the Administrator shall promulgate” and inserted the paragraph heading and matter through “peri- odically update,”. 541 Sec. 6011(f)(3)(A) of Pub. L. No. 109-59 struck “No later than one year after November 15, 1990, the Administrator, with the concurrence of the Secretary of Transportation, shall promulgate” and inserted the subpara. (B) designation and heading and text through “periodically update”. 542 Sec. 6011(f)(3)(B) of Pub. L. No. 109-59 struck “A suit” and the subpara. (C) designation and heading and text through “action”. 543 Sec. 6011(f)(1) of Pub. L. No. 109-59 redesignated sub- paras. (B), (C), and (D) as subparas. (D), (E), and (F). 544 Sec. 6011(b) of Pub. L. No. 109-59 amended this clause. Before amendment, the clause read: “address the appropriate the frequency for making conformity de- terminations on updated transportation plans and programs shall be every 4 years, except in a case in which— (I) the metropolitan planning or- ganization elects to update a transpor- tation plan or program more fre- quently; or (II) the metropolitan planning or- ganization is required to determine conformity in accordance with para- graph (2)(E); and (iii) address how conformity determina- tions will be made with respect to mainte- nance plans. (E)545 INCLUSION OF CRITERIA AND PROCEDURES IN SIP.—Not later than 2 years after the date of enactment of the SAFETEA–LU the proce- dures under subparagraph (A) shall include a requirement that each State include in the State implementation plan criteria and proce- dures for consultation required by subpara- graph (D)(i), and enforcement and enforceabil- ity (pursuant to sections 93.125(c) and 93.122(a)(4)(ii) of title 40, Code of Federal Regulations) in accordance with the Adminis- trator’s criteria and procedures for consulta- tion, enforcement and enforceability. (F) Compliance with the rules of the Admin- istrator for determining the conformity of transportation plans, programs, and projects funded or approved under title 23 or chapter 53 of title 49546 to State or Federal implementation plans shall not be required for traffic signal synchronization projects prior to the funding, approval or implementation of such projects. The supporting regional emissions analysis for any conformity determination made with re- spect to a transportation plan, program, or pro- ject shall consider the effect on emissions of any such project funded, approved, or imple- mented prior to the conformity determination. frequency for making conformity determinations, but in no case shall such determinations for transportation plans and programs be less frequent than every three years”. 545 Sec. 6011(f)(4) of Pub. L. No. 109-59 struck subpara. (E) and inserted this subparagraph. Before amendment, the sub- paragraph read: Such procedures shall also include a requirement that each State shall submit to the Administrator and the Secretary of Transportation within 24 months of November 15, 1990, a revi- sion to its implementation plan that includes criteria and proce- dures for assessing the conformity of any plan, program, or pro- ject subject to the conformity requirements of this subsection. 546 “[C]hapter 53 of title 49” was substituted for “Federal Transit Act” based on § 6(b) of Pub. L. No. 103-272, July 5, 1994, 108 Stat. 1378 (the first section of which enacted subtits. II, III, and V to X of tit. 49, Transportation).

233 (5)547 APPLICABILITY.—This subsection shall apply only with respect to— (A) a nonattainment area and each pollutant for which the area is designated as a nonat- tainment area; and (B) an area that was designated as a nonat- tainment area but that was later redesignated by the Administrator as an attainment area and that is required to develop a maintenance plan under section 7505a of this title with re- spect to the specific pollutant for which the area was designated nonattainment. (6)548 Notwithstanding paragraph 5,549 this sub- section shall not apply with respect to an area des- ignated nonattainment under section 7407(d)(1) of this title until 1 year after that area is first desig- nated nonattainment for a specific national ambi- ent air quality standard. This paragraph only ap- plies with respect to the national ambient air quality standard for which an area is newly desig- nated nonattainment and does not affect the area's requirements with respect to all other national am- bient air quality standards for which the area is designated nonattainment or has been redesig- nated from nonattainment to attainment with a maintenance plan pursuant to section 7505a of this title550 (including any pre-existing national ambient air quality standard for a pollutant for which a new or revised standard has been issued). (7)551 CONFORMITY HORIZON FOR TRANSPORTATION PLANS.— (A) IN GENERAL.—Each conformity determi- nation required under this section for a trans- portation plan under section 134(i) of title 23, United States Code, or section 5303(i) of title 49, United States Code, shall require a demon- stration of conformity for the period ending on either the final year of the transportation plan, or at the election of the metropolitan planning organization, after consultation with the air pollution control agency and solicitation of pub- lic comments and consideration of such com- ments, the longest of the following periods: (i) The first 10-year period of any such transportation plan. (ii) The latest year in the implementa- tion plan applicable to the area that con- tains a motor vehicle emission budget. (iii) The year after the completion date of a regionally significant project if the pro- ject is included in the transportation im- 547 Sec. 305(b) of Pub. L. No. 104-59 added para. (5). 548 Sec. 1(a)(1) of Pub. L. No. 106-377 inserted para. (6). 549 So in original. Probably should be “paragraph (5),”. 550 “Section 7505a of this title” was in the original “section 175(A)” and was translated as reading “section 175A”, meaning § 175A of act of July 14, 1955, which is classified to § 7505a of tit. 42, to reflect the probable intent of Congress. 551 Sec. 6011(c) of Pub. L. No. 109-59 added this paragraph. provement program or the project requires approval before the subsequent conformity determination. (B) REGIONAL EMISSIONS ANALYSIS.—The con- formity determination shall be accompanied by a regional emissions analysis for the last year of the transportation plan and for any year shown to exceed emission budgets by a prior analysis, if such year extends beyond the appli- cable period as determined under subpara- graph (A). (C) EXCEPTION.—In any case in which an area has a revision to an implementation plan under section 175A(b) and the Administrator has found the motor vehicles emissions budgets from that revision to be adequate in accordance with section 93.118(e)(4) of title 40, Code of Federal Regulations (as in effect on October 1, 2004), or has approved the revision, the dem- onstration of conformity at the election of the metropolitan planning organization, after con- sultation with the air pollution control agency and solicitation of public comments and consid- eration of such comments, shall be required to extend only through the last year of the im- plementation plan required under section 175A(b). (D) EFFECT OF ELECTION.—Any election by a metropolitan planning organization under this paragraph shall continue in effect until the metropolitan planning organization elects oth- erwise. (E) AIR POLLUTION CONTROL AGENCY DEFINED.—In this paragraph, the term “air pol- lution control agency” means an air pollution control agency (as defined in section 302(b)) that is responsible for developing plans or con- trolling air pollution within the area covered by a transportation plan. (8)552 SUBSTITUTION OF TRANSPORTATION CONTROL MEASURES.— (A) IN GENERAL.—Transportation control measures that are specified in an implementa- tion plan may be replaced or added to the im- plementation plan with alternate or additional transportation control measures— (i) if the substitute measures achieve equivalent or greater emissions reductions than the control measure to be replaced, as demonstrated with an emissions impact analysis that is consistent with the current methodology used for evaluating the re- placed control measure in the implementa- tion plan; (ii) if the substitute control measures are implemented— (I) in accordance with a schedule that is consistent with the schedule 552 Sec. 6011(d) of Pub. L. No. 109-59 added this paragraph.

234 provided for control measures in the implementation plan; or (II) if the implementation plan date for implementation of the control measure to be replaced has passed, as soon as practicable after the imple- mentation plan date but not later than the date on which emission reductions are necessary to achieve the purpose of the implementation plan; (iii) if the substitute and additional con- trol measures are accompanied with evi- dence of adequate personnel and funding and authority under State or local law to implement, monitor, and enforce the con- trol measures; (iv) if the substitute and additional con- trol measures were developed through a collaborative process that included— (I) participation by representatives of all affected jurisdictions (including local air pollution control agencies, the State air pollution control agency, and State and local transportation agen- cies); (II) consultation with the Adminis- trator; and (III) reasonable public notice and opportunity for comment; and (v) if the metropolitan planning organi- zation, State air pollution control agency, and the Administrator concur with the equivalency of the substitute or additional control measures. (B) ADOPTION.—(i) Concurrence by the met- ropolitan planning organization, State air pol- lution control agency and the Administrator as required by subparagraph (A)(v) shall consti- tute adoption of the substitute or additional control measures so long as the requirements of subparagraphs (A)(i), (A)(ii), (A)(iii) and (A)(iv) are met. (ii) Once adopted, the substitute or addi- tional control measures become, by opera- tion of law, part of the State implementa- tion plan and become federally enforceable. (iii) Within 90 days of its concurrence under subparagraph (A)(v), the State air pollution control agency shall submit the substitute or additional control measure to the Administrator for incorporation in the codification of the applicable implementa- tion plan. Nothwithstanding [sic] any other provision of this Act, no additional State process shall be necessary to support such revision to the applicable plan. (C) NO REQUIREMENT FOR EXPRESS PERMISSION.—The substitution or addition of a transportation control measure in accordance with this paragraph and the funding or ap- proval of such a control measure shall not be contingent on the existence of any provision in the applicable implementation plan that ex- pressly permits such a substitution or addition. (D) NO REQUIREMENT FOR NEW CONFORMITY DETERMINATION.—The substitution or addition of a transportation control measure in accor- dance with this paragraph shall not require— (i) a new conformity determination for the transportation plan; or (ii) a revision of the implementation plan. (E) CONTINUATION OF CONTROL MEASURE BEING REPLACED.—A control measure that is being replaced by a substitute control measure under this paragraph shall remain in effect un- til the substitute control measure is adopted by the State pursuant to subparagraph (B). (F) EFFECT OF ADOPTION.—Adoption of a sub- stitute control measure shall constitute rescis- sion of the previously applicable control meas- ure. (9)553 LAPSE OF CONFORMITY.—If a conformity de- termination required under this subsection for a transportation plan under section 134(i) of title 23, United States Code, or section 5303(i) of title 49, United States Code, or a transportation improve- ment program under section 134(j) of such title 23 or under section 5303(j) of such title 49 is not made by the applicable deadline and such failure is not corrected by additional measures to either reduce motor vehicle emissions sufficient to demonstrate compliance with the requirements of this subsec- tion within 12 months after such deadline or other measures sufficient to correct such failures, the transportation plan shall lapse. (10) LAPSE.—In this subsection, the term “lapse” means that the conformity determination for a transportation plan or transportation improvement program has expired, and thus there is no currently conforming transportation plan or transportation improvement program. (d) PRIORITY OF ACHIEVING AND MAINTAINING NATIONAL PRIMARY AMBIENT AIR QUALITY STANDARDS.—Each de- partment, agency, or instrumentality of the Federal Government having authority to conduct or support any program with air-quality related transportation conse- quences shall give priority in the exercise of such au- thority, consistent with statutory requirements for allo- cation among States or other jurisdictions, to the implementation of those portions of plans prepared un- der this section to achieve and maintain the national primary ambient air-quality standard. This paragraph extends to, but is not limited to, authority exercised 553 Sec. 6011(e) of Pub. L. No. 109-59 added this paragraph and para. (10).

235 under chapter 53 of title 49, title 23, and the Housing and Urban Development Act.554 * * * 42 U.S.C. § 7554. Urban Bus Standards (a) STANDARDS FOR MODEL YEARS AFTER 1993.—Not later than January 1, 1992,the Administrator shall promulgate regulations under section 202(a) applicable to urban buses for the model year 1994 and thereafter. Such standards shall be based on the best technology that can reasonably be anticipated to be available at the time such measures are to be implemented, taking costs, safety, energy, lead time, and other relevant fac- tors into account. Such regulations shall require that such urban buses comply with the provisions of subsec- tion (b) of this section (and subsection (c) of this subsec- tion, if applicable) in addition to compliance with the standards applicable under section 202(a) for heavy- duty vehicles of the same type and model year. (b) PM STANDARD.— (1) 50 PERCENT REDUCTION.—The standards un- der section 202(a) applicable to urban buses shall require that, effective for the model year 1994 and thereafter, emissions of particulate matter (PM) from urban buses shall not exceed 50 percent of the emissions of particulate matter (PM) allowed under the emission standard applicable under section 202(a) as of the date of the enactment of the Clean Air Act Amendments of 1990 for particulate matter (PM) in the case of heavy-duty diesel vehicles and engines manufactured in the model year 1994. (2) REVISED REDUCTION.—The Administrator shall increase the level of emissions of particulate matter allowed under the standard referred to in paragraph (1) if the Administrator determines that the 50 percent reduction referred to in paragraph (1) is not technologically achievable, taking into ac- count durability, costs, lead time, safety, and other relevant factors. The Administrator may not in- crease such level of emissions above 70 percent of the emissions of particulate matter (PM) allowed under the emission standard applicable under sec- tion 202(a) as of the date of the enactment of the Clean Air Act Amendments of 1990 for particulate matter (PM) in the case of heavy-duty diesel vehi- cles and engines manufactured in the model year 1994. (3) DETERMINATION AS PART OF RULE.—As part of the rulemaking under subsection (a), the Adminis- trator shall make a determination as to whether the 50 percent reduction referred to in paragraph (1) is technologically achievable, taking into ac- 554 The Housing and Urban Development Act may be the name for a series of acts sharing the same name but enacted in different years by Pub. L. No. 89-117, Aug. 10, 1965, 79 Stat. 451; Pub. L. No. 90-448, Aug. 1, 1968, 82 Stat. 476; Pub. L. No. 91-152, Dec. 24, 1969, 83 Stat. 379; and Pub. L. No. 91-609, Dec. 31, 1970, 84 Stat. 1770, respectively. count durability, costs, lead time, safety, and other relevant factors. (c) Low-Polluting Fuel Requirement.— (1) ANNUAL TESTING.—Beginning with model year 1994 buses, the Administrator shall conduct annual tests of a representative sample of operating urban buses subject to the particulate matter (PM) stan- dard applicable pursuant to subsection (b) to de- termine whether such buses comply with such standard in use over their full useful life. (2) PROMULGATION OF ADDITIONAL LOW-POLLUTING FUEL REQUIREMENT.—(A) If the Administrator de- termines, based on the testing under paragraph (1), that urban buses subject to the particulate matter (PM) standard applicable pursuant to subsection (b) do not comply with such standard in use over their full useful life, he shall revise the standards applicable to such buses to require (in addition to compliance with the PM standard applicable pur- suant to subsection (b)) that all new urban buses purchased or placed into service by owners or op- erators of urban buses in all metropolitan statisti- cal areas or consolidated metropolitan statistical areas with a 1980 population of 750,000 or more shall be capable of operating, and shall be exclu- sively operated, on low-polluting fuels. The Admin- istrator shall establish the pass-fail rate for pur- poses of testing under this subparagraph. (B) The Administrator shall promulgate a schedule phasing in any low-polluting fuel re- quirement established pursuant to this para- graph to an increasing percentage of new ur- ban buses purchased or placed into service in each of the first 5 model years commencing 3 years after the determination under subpara- graph (A). Under such schedule 100 percent of new urban buses placed into service in the fifth model year commencing 3 years after the de- termination under subparagraph (A) shall comply with the low-polluting fuel requirement established pursuant to this paragraph. (C) The Administrator may extend the require- ments of this paragraph to metropolitan statis- tical areas or consolidated metropolitan statis- tical areas with a 1980 population of less than 750,000, if the Administrator determines that a significant benefit to public health could be ex- pected to result from such extension. (d) RETROFIT REQUIREMENTS.—Not later than 12 months after the enactment of the Clean Air Act Amendments of 1990, the Administrator shall promul- gate regulations under section 202(a) requiring that urban buses which— (1) are operating in areas referred to in subpara- graph (A) of subsection (c)(2) (or subparagraph (C) of subsection (c)(2) if the Administrator has taken action under that subparagraph); (2) were not subject to standards in effect under the regulations under subsection (a); and

236 (3) have their engines replaced or rebuilt after January 1, 1995, shall comply with an emissions standard or emis- sions control technology requirement established by the Administrator in such regulations. Such emis- sions standard or emissions control technology re- quirement shall reflect the best retrofit technology and maintenance practices reasonably achievable. (e) PROCEDURES FOR ADMINISTRATION AND ENFORCEMENT.—The Administrator shall establish, within 18 months after the enactment of the Clean Air Act Amendments to 1990, and in accordance with sec- tion 206(h), procedures for the administration and en- forcement of standards for buses subject to standards under this section, testing procedures, sampling proto- cols, in-use compliance requirements, and criteria gov- erning evaluation of buses. Procedures for testing (in- cluding, but not limited to, certification testing) shall reflect actual operating conditions. (f) DEFINITIONS.—For purposes of this section— (1) URBAN BUS.—The term "urban bus" has the meaning provided under regulations of the Admin- istrator promulgated under section 202(a). (2) LOW-POLLUTING FUEL.—The term "low- polluting fuel" means methanol, ethanol, propane, or natural gas, or any comparably low-polluting fuel. In determining whether a fuel is comparably low-polluting, the Administrator shall consider both the level of emissions of air pollutants from vehicles using the fuel and the contribution of such emissions to ambient levels of air pollutants. For purposes of this paragraph, the term "methanol" includes any fuel which contains at least 85 percent methanol unless the Administrator increases such percentage as he deems appropriate to protect pub- lic health and welfare. *** 18 U.S.C. § 1993.555 Terrorist Attacks and Other Acts of Violence Against Public556 Transportation Systems (a) GENERAL PROHIBITIONS.—Whoever willfully— (1) wrecks, derails, sets fire to, or disables a pub- lic557 transportation vehicle558 or ferry; (2) places or causes to be placed any biological agent or toxin for use as a weapon, destructive sub- stance, or destructive device in, upon, or near a public transportation vehicle or ferry, without pre- viously obtaining the permission of the public transportation provider, and with intent to endan- 555 Sec. 801 of Pub. L. No. 107-56 added this section; it was repealed by Pub. L. No. 109-177 (Mar. 9, 2006). 556 Sec. 3042(a)(1) of Pub. L. No. 109-59 struck “mass” and inserted “public”. 557 Sec. 3042(a)(2) of Pub. L. No. 109-59 struck “mass” here and throughout the section and inserted “public”. 558 Jet airplane not a vehicle under this section. United States v. Reid, 206 F. Supp. 2d 132 (D. Mass. 2002). ger the safety of any passenger or employee of the public transportation provider, or with a reckless disregard for the safety of human life; (3) sets fire to, or places any biological agent or toxin for use as a weapon, destructive substance, or destructive device in, upon, or near any garage, terminal, structure, supply, or facility used in the operation of, or in support of the operation of, a public transportation vehicle or ferry, without pre- viously obtaining the permission of the public transportation provider, and knowing or having reason to know such activity would likely derail, disable, or wreck a public transportation vehicle or ferry used, operated, or employed by the public transportation provider; (4) removes appurtenances from, damages, or otherwise impairs the operation of a public trans- portation signal system, including a train control system, centralized dispatching system, or rail grade crossing warning signal without authoriza- tion from the public transportation provider; (5) interferes with, disables, or incapacitates any dispatcher, driver, captain, or person while they are employed in dispatching, operating, control- ling,559 or maintaining a public transportation vehi- cle or ferry, with intent to endanger the safety of any passenger or employee of the public transpor- tation provider, or with a reckless disregard for the safety of human life; (6) commits an act, including the use of a danger- ous weapon, with the intent to cause death or seri- ous bodily injury to an employee or passenger of a public transportation provider or any other person while any of the foregoing are on the property of a public transportation provider; (7) conveys or causes to be conveyed false infor- mation, knowing the information to be false, con- cerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this subsection; or (8) attempts, threatens, or conspires to do any of the aforesaid acts, shall be fined under this title or imprisoned not more than twenty years, or both, if such act is committed, or in the case of a threat or conspiracy such act would be committed, on, against, or affecting a public transportation pro- vider engaged in or affecting interstate or foreign commerce, or if in the course of committing such act, that person travels or communicates across a State line in order to commit such act, or transports materials across a State line in aid of the commis- sion of such act. (b) AGGRAVATED OFFENSE.—Whoever commits an of- fense under subsection (a) in a circumstance in which— (1) the public transportation vehicle or ferry was carrying a passenger at the time of the offense; or 559 Sec. 3042(a)(3) of Pub. L. No. 109-59 inserted “control- ling”.

237 (2) the offense has resulted in the death of any person, shall be guilty of an aggravated form of the offense and shall be fined under this title or impris- oned for a term of years or for life, or both. (c) DEFINITIONS.—In this section— (1) the term “biological agent” has the meaning given to that term in section 178(1) of this title; (2) the term “dangerous weapon” has the mean- ing given to that term in section 930 of this title; (3) the term “destructive device” has the meaning given to that term in section 921(a)(4) of this title; (4) the term “destructive substance” has the meaning given to that term in section 31 of this ti- tle; (5) the term “public transportation” has the meaning given to that term in section 5302(a) of ti- tle 49,560 except that the term shall include school- bus, charter, and sightseeing transportation; (6) the term “serious bodily injury” has the mean- ing given to that term in section 1365 of this title; (7) the term “State” has the meaning given to that term in section 2266 of this title; and (8) the term “toxin” has the meaning given to that term in section 178(2) of this title. EXECUTIVE ORDER NO. 11246 September 28, 1965, 30 F.R. 12319 EQUAL EMPLOYMENT OPPORTUNITY Under and by virtue of the authority vested in me as President of the United States by the Constitution and statutes of the United States, it is ordered as follows: Part I—Nondiscrimination in Government Employment Section 101. It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all qualified persons, to prohibit dis- crimination in employment because of race, creed, color, or national origin, and to promote the full realization of equal employment opportunity through a positive, con- tinuing program in each executive department and agency. The policy of equal opportunity applies to every aspect of Federal employment policy and practice. Section 102. The head of each executive department and agency shall establish and maintain a positive pro- gram of equal employment opportunity for all civilian employees and applicants for employment within his jurisdiction in accordance with the policy set forth in Section 101. Section 103. The Civil Service Commission shall su- pervise and provide leadership and guidance in the 560 Sec. 3042(a)(2) of Pub. L. No. 109-59 struck “5302(a)(7) of title 49, United States Code,” and inserted “5302(a) of title 49,”. conduct of equal employment opportunity programs for the civilian employees of and applications for employ- ment within the executive departments and agencies and shall review agency program accomplishments pe- riodically. In order to facilitate the achievement of a model program for equal employment opportunity in the Federal service, the Commission may consult from time to time with such individuals, groups, or organiza- tions as may be of assistance in improving the Federal program and realizing the objectives of this Part. Section 104. The Civil Service Commission shall pro- vide for the prompt, fair, and impartial consideration of all complaints of discrimination in Federal employment on the basis of race, creed, color, or national origin. Pro- cedures for the consideration of complaints shall in- clude at least one impartial review within the executive department or agency and shall provide for appeal to the Civil Service Commission. Section 105. The Civil Service Commission shall issue such regulations, orders, and instructions as it deems necessary and appropriate to carry out its responsibili- ties under this Part, and the head of each executive department and agency shall comply with the regula- tions, orders, and instructions issued by the Commis- sion under this Part. Part II—Nondiscrimination in Employment by Government Contractors and Subcontractors Subpart A Duties of the Secretary of Labor Section 201. The Secretary of Labor shall be respon- sible for the administration of Parts II and III of this Order and shall adopt such rules and regulations and issue such orders as he deems necessary and appropri- ate to achieve the purposes thereof. Subpart B Contractors’ Agreements Section 202. Except in contracts exempted in accor- dance with Section 204 of this Order, all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions: “During the performance of this contract, the con- tractor agrees as follows: “(1) The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contrac- tor will take affirmative action to ensure that appli- cants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to the following: em- ployment, upgrading, demotion, or transfer; re- cruitment or recruitment advertising; layoff or ter- mination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in

238 conspicuous places, available to employees and ap- plicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. “(2) The contractor will, in all solicitations or ad- vertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, or national origin. “(3) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's com- mitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to em- ployees and applicants for employment. “(4) The contractor will comply with all provi- sions of Executive Order No. 11246 of Sept. 24, 1965, and of the rules, regulations, and relevant or- ders of the Secretary of Labor. “(5) The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regula- tions, and orders of the Secretary of Labor, or pur- suant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regula- tions, and orders. "(6) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated or sus- pended in whole or in part and the contractor may be declared ineligible for further Government con- tracts in accordance with procedures authorized in Executive Order No. 11246 of Sept 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or or- der of the Secretary of Labor, or as otherwise pro- vided by law. “(7) The contractor will include the provisions of Paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regula- tions, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of Sept. 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the contracting agency may direct as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, That in the event the contractor becomes involved in, or is threatened with, litiga- tion with a subcontractor or vendor as a result of such direction by the contracting agency, the con- tractor may request the United States to enter into such litigation to protect the interests of the United States.” Section 203. (a) Each contractor having a contract containing the provisions prescribed in Section 202 shall file, and shall cause each of his subcontractors to file, Compliance Reports with the contracting agency or the Secretary of Labor as may be directed. Compliance Reports shall be filed within such times and shall con- tain such information as to the practices, policies, pro- grams, and employment policies, programs, and em- ployment statistics of the contractor and each subcontractor, and shall be in such form, as the Secre- tary of Labor may prescribe. (b) Bidders or prospective contractors or subcontrac- tors may be required to state whether they have par- ticipated in any previous contract subject to the provi- sions of this Order, or any preceding similar Executive order, and in that event to submit, on behalf of them- selves and their proposed subcontractors, Compliance Reports prior to or as an initial part of their bid or ne- gotiation of a contract. (c) Whenever the contractor or subcontractor has a collective bargaining agreement or other contract or understanding with a labor union or an agency refer- ring workers or providing or supervising apprenticeship or training for such workers, the Compliance Report shall include such information as to such labor union's or agency's practices and policies affecting compliance as the Secretary of Labor may prescribe: Provided, That to the extent such information is within the exclusive possession of a labor union or an agency referring workers or providing or supervising apprenticeship or training and such labor union or agency shall refuse to furnish such information to the contractor, the contrac- tor shall so certify to the contracting agency as part of its Compliance Report and shall set forth what efforts he has made to obtain such information. (d) The contracting agency or the Secretary of Labor may direct that any bidder or prospective contractor or subcontractor shall submit, as part of his Compliance Report, a statement in writing, signed by an authorized officer or agent on behalf of any labor union or any agency referring workers or providing or supervising apprenticeship or other training, with which the bidder or prospective contractor deals, with supporting infor- mation, to the effect that the signer's practices and poli- cies do not discriminate on the grounds of race, color, creed, or national origin, and that the signer either will affirmatively cooperate in the implementation of the policy and provisions of this Order or that it consents and agrees that recruitment, employment, and the terms and conditions of employment under the pro-

239 posed contract shall be in accordance with the purposes and provisions of the Order. In the event that the un- ion, or the agency shall refuse to execute such a state- ment, the Compliance Report shall so certify and set forth what efforts have been made to secure such a statement and such additional factual material as the contracting agency or the Secretary of Labor may re- quire. Section 204. The Secretary of Labor may, when he deems that special circumstances in the national inter- est so require, exempt a contracting agency from the requirement of including any or all of the provisions of Section 202 of this Order in any specific contract, sub- contract, or purchase order. The Secretary of Labor may, by rule or regulation, also exempt certain classes of contracts, subcontracts, or purchase orders (1) when- ever work is to be or has been performed outside the United States and no recruitment of workers within the limits of the United States is involved; (2) for standard commercial supplies or raw materials; (3) involving less than specified amounts of money or specified numbers or workers; or (4) to the extent that they involve sub- contracts below a specified tier. The Secretary of Labor may also provide, by the rule, regulation, or order, for the exemption of facilities of a contractor which are in all respects separate and distinct from activities of the contractor related to the performance of the contract: Provided, That such an exemption will not interfere with or impede the effectuation of the purposes of this Order: And provided further, That in the absence of such an exemption all facilities shall be covered by the provisions of this Order. Subpart C Powers and Duties of the Secretary of Labor and the Contracting Agencies Section 205. Each contracting agency shall be primar- ily responsible for obtaining compliance with the rules, regulations, and orders of the Secretary of Labor with respect to contracts entered into by such agency or its contractors. All contracting agencies shall comply with the rules of the Secretary of Labor in discharging their primary responsibility for securing compliance with the provisions of contracts and otherwise with the terms of this Order and of the rules, regulations, and orders of the Secretary of Labor issued pursuant to this Order. They are directed to cooperate with the Secretary of Labor and to furnish the Secretary of Labor such infor- mation and assistance as he may require in the per- formance of his functions under this Order. They are further directed to appoint or designate, from among the agency's personnel, compliance officers. It shall be the duty of such officers to seek compliance with the objectives of this Order by conference, conciliation, me- diation, or persuasion. Section 206. (a) The Secretary of Labor may investi- gate the employment practices of any Government con- tractor or subcontractor, or initiate such investigation by the appropriate contracting agency, to determine whether or not the contractual provisions specified in Section 202 of this Order have been violated. Such in- vestigation shall be conducted in accordance with the procedures established by the Secretary of Labor and the investigating agency shall report to the Secretary of Labor any action taken or recommended. (b) The Secretary of Labor may receive and investi- gate or cause to be investigated complaints by employ- ees or prospective employees of a Government contrac- tor or subcontractor which allege discrimination contrary to the contractual provisions specified in Sec- tion of 202 of this Order. If this investigation is con- ducted for the Secretary of Labor by a contracting agency, that agency shall report to the Secretary what action has been taken or is recommended with regard to such complaints. Section 207. The Secretary of Labor shall use his best efforts, directly and through contracting agencies, other interested Federal, State, and local agencies, contrac- tors, and all other available instrumentalities to cause any labor union engaged in work under Government contracts or any agency referring workers or providing or supervising apprenticeship or training for or in the course of such work to cooperate in the implementation of the purposes of this Order. The Secretary of Labor shall, in appropriate cases, notify the Equal Employ- ment Opportunity Commission, the Department of Jus- tice, or other appropriate Federal agencies whenever it has reason to believe that the practices of any such la- bor organization or agency violate Title VI or Title VII of the Civil Rights Act of 1964 or other provision of Fed- eral law. Section 208. (a) The Secretary of Labor, or any agency, officer, or employee in the executive branch of the Government designated by rule, regulation, or order of the Secretary, may hold such hearings, public or pri- vate, as the Secretary may deem advisable for compli- ance, enforcement, or educational purposes. (b) The Secretary of Labor may hold, or cause to be held, hearings in accordance with Subsection (a) of this Section prior to imposing, ordering, or recommending the imposition of penalties and sanctions under this Order. No order for debarment of any contractor from further Government contracts under Section 209(a) (6) shall be made without affording the contractor an op- portunity for a hearing. Subpart D Sanction and Penalties Section 209. (a) In accordance with such rules, regu- lations, or orders as the Secretary of Labor may issue or adopt, the Secretary or the appropriate contracting agency may: (1) Publish, or cause to be published, the names of contractors or unions which it has concluded have complied or have failed to comply with the provisions of this Order or of the rules, regulations, and orders of the Secretary of Labor.

240 (2) Recommend to the Department of Justice that, in cases in which there is substantial or mate- rial violation or the threat of substantial or mate- rial violation of the contractual provisions set forth in Section 202 of this Order, appropriate proceed- ings be brought to enforce those provisions, includ- ing the enjoining, within the limitations of applica- ble law, of organizations, individuals, or groups who prevent directly or indirectly, or seek to pre- vent directly or indirectly, compliance with the pro- visions of this Order. (3) Recommend to the Equal Employment Oppor- tunity Commission or the Department of Justice that appropriate proceedings be instituted under Title VII of the Civil Rights Act of 1964. (4) Recommend to the Department of Justice that criminal proceedings be brought for the furnishing of false information to any contracting agency or to the Secretary of Labor as the case may be. (5) Cancel, terminate, suspend, or cause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failure of the contractor or subcontractor to comply with the nondiscrimination provisions of the contract. Con- tracts may be cancelled, terminated, or suspended absolutely or continuance of contracts may be con- ditioned upon a program for future compliance ap- proved by the contracting agency. (6) Provide that any contracting agency shall re- frain from entering into further contracts, or exten- sions or other modifications of existing contracts, with any noncomplying contractor, until such con- tractor has satisfied the Secretary of Labor that such contractor has established and will carry out personnel and employment policies in compliance with the provisions of this Order. (b) Under rules and regulations prescribed by the Secretary of Labor, each contracting agency shall make reasonable efforts within a reasonable time limitation to secure compliance with the contract provisions of this Order by methods of conference, conciliation, mediation, and persuasion before proceedings shall be instituted under Subsection (a) (2) of this Section, or before a con- tract shall be cancelled or terminated in whole or in part under Subsection (a) (5) of this Section for failure of a contractor or subcontractor to comply with the con- tract provisions of this Order. Section 210. Any contracting agency taking any ac- tion authorized by this Subpart, whether on its own motion, or as directed by the Secretary of Labor, or un- der the rules and regulations of the Secretary, shall promptly notify the Secretary of such action. Whenever the Secretary of Labor makes a determination under this Section, he shall promptly notify the appropriate contracting agency of the action recommended. The agency shall take such action and shall report the re- sults thereof to the Secretary of Labor within such time as the Secretary shall specify. Section 211. If the Secretary shall so direct, contract- ing agencies shall not enter into contracts with any bid- der or prospective contractor unless the bidder or pro- spective contractor has satisfactorily complied with the provisions of this Order or submits a program for com- pliance acceptable to the Secretary of Labor or, if the Secretary so authorizes, to the contracting agency. Section 212. Whenever a contracting agency cancels or terminates a contract, or whenever a contractor has been debarred from further Government contracts, un- der Section 209(a) (6) because of noncompliance with the contract provisions with regard to nondiscrimina- tion, the Secretary of Labor, or the contracting agency involved, shall promptly notify the Comptroller General of the United States. Any such debarment may be re- scinded by the Secretary of Labor or by the contracting agency which imposed the sanction. Subpart E Certificates of Merit Section 213. The Secretary of Labor may provide for issuance of a United States Government Certificate of Merit to employers or labor unions, or other agencies which are or may hereafter be engaged in work under Government contracts, if the Secretary is satisfied that the personnel and employment practices of the em- ployer, or that the personnel, training, apprenticeship, membership, grievance and representation, upgrading, and other practices and policies of the labor union or other agency conform to the purposes and provisions of this Order. Section 214. Any Certificate of Merit may at any time be suspended or revoked by the Secretary of Labor if the holder thereof, in the judgment of the Secretary, has failed to comply with the provisions of this Order. Section 215. The Secretary of Labor may provide for the exemption of any employer, labor union, or other agency from any reporting requirements imposed under or pursuant to this Order if such employer, labor union, or other agency has been awarded a Certificate of Merit which has not been suspended or revoked. Part III—Nondiscrimination Provisions in Federally Assisted Construction Contracts Section 301. Each executive department and agency which administers a program involving Federal finan- cial assistance shall require as a condition for the ap- proval of any grant, contract, loan, insurance, or guar- antee thereunder, which may involve a construction contract, that the applicant for Federal assistance un- dertake and agree to incorporate, or cause to be incor- porated, into all construction contracts paid for in whole or in part with funds obtained from the Federal Gov- ernment or borrowed on the credit of the Federal Gov- ernment pursuant to such grant, contract, loan, insur-

241 ance, or guarantee, or undertaken pursuant to any Fed- eral program involving such grant, contract, loan, in- surance, or guarantee, the provisions prescribed for Government contracts by Section 202 of this Order or such modification thereof, preserving in substance the contractor's obligations thereunder, as may be approved by the Secretary of Labor, together with such additional provisions as the Secretary deems appropriate to estab- lish and protect the interest of the United States in the enforcement of those obligations. Each such applicant shall also undertake and agree (1) to assist and cooper- ate actively with the administering department or agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with those contract provisions and with the rules, regulations, and relevant orders of the Secretary, (2) to obtain and to furnish to the administering department or agency and to the Secretary of Labor such information as they may require for the supervision of such compliance, (3) to carry out sanctions and penalties for violations of such obligations imposed upon contractors and subcontrac- tors by the Secretary of Labor or the administering de- partment or agency pursuant to Part II, Subpart D, of this Order, and (4) to refrain from entering into any contract subject to this Order, or extension or other modification of such a contract with a contractor de- barred from Government contracts under Part II, Sub- part D, of this Order. Section 302. (a) “Construction contract” as used in this Order means any contract for the construction, rehabilitation, alteration, conversion, extension, or re- pair of buildings, highways, or other improvements to real property. (b) The provisions of Part II of the Order shall apply to such construction contracts, and for purposes of such application the administering department or agency shall be considered the contracting agency referred to therein. (c) The term “applicant” as used in this Order means an applicant for Federal assistance or, as determined by agency regulation, other program participant, with re- spect to whom an application for any grant, contract, loan, insurance, or guarantee is not finally acted upon prior to the effective date of this Part, and it includes such an applicant after he becomes a recipient of such Federal assistance. Section 303. (a) Each administering department or agency shall be responsible for obtaining the compli- ance of such applicants with their undertakings under this Order. Each administering department and agency is directed to cooperate with the Secretary of Labor, and to furnish the Secretary such information and assis- tance as he may require in the performance of his func- tions under this Order. (b) In the event an applicant fails and refuses to com- ply with his undertakings, the administering depart- ment or agency may take any or all of the following ac- tions: (1) cancel, terminate, or suspend in whole or in part the agreement, contract, or other arrangement with such applicant with respect to which the failure and refusal occurred; (2) refrain for extending any fur- ther assistance to the applicant under the program with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been received from such applicant; and (3) refer the case to the Department of Justice for appropriate legal proceed- ings. (c) Any action with respect to an applicant pursuant to Subsection (b) shall be taken in conformity with Sec- tion 602 of the Civil Rights Act of 1964 (and the regula- tions of the administering department or agency issued thereunder), to the extent applicable. In no case shall action be taken with respect to an applicant pursuant to Clause (1) or (2) of Subsection (b) without notice and opportunity for hearing before the administering de- partment or agency. Section 304. Any executive department or agency which imposes by rule, regulation or order require- ments of nondiscrimination in employment, other than requirements imposed pursuant to this Order, may delegate to the Secretary of Labor by agreement such responsibilities with respect to compliance standards, reports and procedures as would tend to bring the ad- ministration of such requirements into conformity with the administration of requirements imposed under this Order: Provided, That actions to effect compliance by recipients of Federal financial assistance with require- ments imposed pursuant to Title VI of the Civil Rights Act of 1964 shall be taken in conformity with the proce- dures and limitations prescribed in Section 602 thereof and the regulations of the administering department or agency issued thereunder. Part IV—Miscellaneous Section 401. The Secretary of Labor may delegate to any officer, agency, or employee in the Executive branch of the Government, any function or duty of the Secretary under Parts II and III of this Order, except authority to promulgate rules and regulations of a gen- eral nature. Section 402. The Secretary of labor shall provide ad- ministrative support for the execution of the program known as the "Plans for Progress." Section 403. (a) Executive Orders Nos. 10590 (Janu- ary 19, 1955), 10722 (August 5, 1957), 10925 (March 6, 1961), 11114 (June 22, 1963), and 11162 (July 28, 1964), are hereby superseded and the President's Com- mittee on Equal Employment Opportunity established by Executive Order No. 10925 is hereby abolished. All records and property in the custody of the Committee shall be transferred to the Civil Service Commission and the Secretary of Labor, as appropriate.

242 (b) Nothing in this Order shall be deemed to relieve any person of any obligation assumed or imposed under or pursuant to any Executive order superseded by this Order. All rules, regulations, orders, instructions, des- ignations, and other directives issued by the President's Committee on Equal Employment Opportunity and those issued by the heads of various departments or agencies under or pursuant to any of the Executive Or- ders superseded by this Order, shall, to the extent that they are not inconsistent with this Order, remain in full force and effect unless and until revoked or superseded by appropriate authority. References in such directives to provisions of the superseded orders shall be deemed to be references to the comparable provisions of this Order. Section 404. The General Services Administration shall take appropriate action to revise the standard Government contract forms to accord with the provi- sions of this Order and of the rules and regulations of the Secretary of Labor. Section 405. This Order shall become effective thirty days after the date of this Order. Lyndon B. Johnson The White House September 24, 1965