Feds: MBTA should not have voted to end late-night service

The T voted on ending the service this week without completing a civil rights analysis. The Federal Transit Administration says that was a mistake.

– Kieran Kesner for The Boston Globe

Federal officials say the T should have conducted a civil rights analysis before its governing board voted earlier this week to eliminate late-night weekend service and must revisit the decision.

The Federal Transit Administration told Boston.com that the Massachusetts Bay Transportation Authority did not properly follow federal guidelines when it decided to terminate the late-night service.

Transit agencies are required to conduct equity analyses prior to any major service change for non-pilot programs to determine whether getting rid of them will have a disproportionate impact on low-income or minority residents.

In a presentation to the board before the 4-0 vote on Monday, an MBTA assistant general manager, Charles Planck, said the agency had decided not to conduct an equity analysis. Planck said at the time that the agency was in touch with the FTA about skipping the analysis, and his presentation noted that “further action may be appropriate, pending those discussions.’’

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The FTA said in a letter sent to the agency Thursday that further action will indeed be needed. The analysis must still be completed and the agency must revisit the decision, the letter reads.

“We are aware of and concerned by the February 29, 2016, Fiscal Management Control Board’s decision to eliminate the late-night service by March 18, 2016,’’ wrote FTA Office of Civil Rights Associate Administrator Linda Ford. “To ensure full compliance with [civil rights guidelines], MBTA must prepare a service equity analysis and revisit the service changes to determine whether all options that would eliminate or mitigate disparate impacts have been implemented.’’

The T must now conduct and submit an equity analysis to the board for consideration and approval in order to remain compliant with the guidelines. However, MBTA spokesman Joe Pesaturo said the agency does not anticipate the need for another vote on the cancellation once it completes the analysis.

“While the MBTA respectfully disagrees with the FTA on this matter, ensuring equity for all our customers is a priority for the MBTA and the Authority expects to now move forward with completing and considering an equity analysis,’’ Pesaturo said in an email. “The MBTA is making progress in improving the system’s reliability and will continue to consider service enhancements that will improve equitable access.’’

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Pesaturo declined to make any T officials available for an interview. He said the MBTA is working to complete the analysis before it ends late-night service on March 18.

On January 19, Planck said an equity analysis would show that canceling late-night service would, in fact, have a disproportionate impact on low-income and minority residents. Several weeks later, the agency had decided it did not need to conduct the analysis.

In an emailed statement, the federal agency told Boston.com that the T put the cart before the horse during Monday’s vote. The MBTA should not have taken the vote on canceling the service without first eitherconducting the analysis or receiving the FTA waiver.

“If an analysis hasn’t been waived, a transit agency is expected to comply with federal regulations’’ by conducting the analysis, according to the FTA.

The letter says the service can be canceled even if the equity analysis shows a disproportionate impact, but only if the T can “demonstrate both a substantial legitimate justification for the proposed change and that less discriminatory alternatives were explored and implemented wherever possible.’’

The T did suggest ways it would mitigate the impact in a February 5 letter to the FTA requesting the waiver.

The MBTA said it is considering ways to improve its overall service for low-income and minority riders, such as “service frequency improvements on certain bus and/or subway routes that are heavily used’’ by those populations.

In that letter, the MBTA argued that the nearly two-year-old late-night service should still be classified as a pilot program, negating the need for the equity analysis.

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Normally, a service is only considered a pilot program in its first 12 months. But because the service had been tweaked last year to include shortened hours and the cancellation of five late-night bus routes, it was still “properly classified as a pilot,’’ MBTA attorney John Englaner wrote.

The T also argued that eliminating late-night service did not qualify as a “major service change’’ because the program only operated two nights a week and accounted for about 0.4 percent of total ridership. And the agency said the data that would be used for the analysis was old and unreliable.

The FTA rejected those arguments in its response Thursday.

“In this case, the MBTA’s late-night service has been operating since March, 2014, nearly double the twelve-month demonstration project timeline. … Second, the service reduction exceeded MBTA’s own adopted threshold for major service changes,’’ the letter reads.

The T’s control board—which was installed in July as part of a reform initiative by Gov. Charlie Baker—indicated for several months that it planned to cut late-night service to save money. According to the T, the service notched about 13,000 rides per night, and cutting it would save the cash-strapped T about $9 million next year.

The agency has said it expected higher ridership and more funding from the private sector to support the service, and that the later hours interfered with subway maintenance.

Maybe so, but that doesn’t matter, the FTA said.

“Poor survey data, operational concerns, and budgetary constraints do not obviate the requirement to conduct the analysis,’’ the FTA letter says.

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