\[Federal Register: December 14, 2005 (Volume 70, Number 239)\]

\[Notices\]

\[Page 74087-74100\]

From the Federal Register Online via GPO Access \[wais.access.gpo.gov\]

\[DOCID:fr14de05-122\]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

\[Docket No. OST-2001-8696\]

Policy Guidance Concerning Recipients\' Responsibilities to

Limited English Proficient (LEP) Persons

AGENCY: Office of the Secretary (OST), U.S. Department of

Transportation (DOT).

ACTION: Notice of guidance with request for comments.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

SUMMARY: The United States Department of Transportation (DOT) is

publishing guidance concerning services and policies by recipients of

Federal financial assistance from the Department of Transportation

related to persons with limited English proficiency. The guidance is

based on the prohibition against national origin discrimination in

Title VI of the Civil Rights Act of 1964, as it affects limited English

proficient persons.

DATES: This guidance is effective immediately. Comments must be

received on or before January 13, 2006. Late-filed comments will be

considered to the extent practicable. DOT will review all comments and

will determine what modifications to the guidance, if any, are

necessary. This guidance supplants existing guidance on the same

subject originally published at 66 FR 6733 (January 22, 2001).

ADDRESSES: You may submit comments, identified by the docket number

\[OST-2001-8696\], by any of the following methods:

Web Site:
<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov>.
Follow the instructions for

submitting comments on the DOT electronic docket site.

Fax: (202) 493-2251.

Mail: Docket Management System; U.S. Department of

Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,

Washington, DC 20590-0001.

Hand Delivery: To the Docket Management System; Room PL-

401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,

Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,

except Federal Holidays.

Instructions: You must include the agency name and docket number

\[OST-2001-8696\] or the Regulatory Identification Number (RIN) for this

notice at the beginning of your comment. Note that all comments

received will be posted without change to
<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov>,
including

any personal information provided.

Privacy Act: Anyone is able to search the electronic form of all

comments received into any of our dockets by the name of the individual

submitting the comment (or signing the comment, if submitted on behalf

of an association, business, labor union, etc.). You may review the

DOT\'s complete Privacy Act Statement in the Federal Register published

on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may

visit
<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov>.

Docket: You may view the public docket through the Internet at

<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov>
or in person at the Docket Management System office

at the above address.

FOR FURTHER INFORMATION CONTACT: Joseph Austin, Chief, External Policy

and Program Development Division, Departmental Office of Civil Rights,

[Telephone: (202) 366-5992, TTY: (202) 366-9696,
E-mail:](mailto:joseph.austin@dot.gov)

<joseph.austin@dot.gov>; or Bonnie Angermann, Attorney-Advisor, Office
of

General Law, Office of the General Counsel, Telephone: (202) 366-9166,

E-mail: <bonnie.angermann@dot.gov>. Arrangements to receive the policy

guidance in an alternative format may be made by contacting the named

individuals.

SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42

U.S.C. 2000d, et seq., and its implementing regulations provide that no

person shall be subjected to discrimination on the basis of race,

color, or national origin under any program or activity that receives

Federal financial assistance. The purpose of this limited English

proficiency policy guidance is to clarify the responsibilities of

recipients of Federal financial assistance from the U.S. Department of

Transportation (DOT) (\`\`recipients\'\'), and assist them in fulfilling

their responsibilities to limited English proficient (LEP) persons,

pursuant to Title VI of the Civil Rights Act of 1964 and implementing

regulations.

Executive Order 13166, \`\`Improving Access to Services for Persons

With Limited English Proficiency,\'\' reprinted at 65 FR 50121 (August

16, 2000), directs each Federal agency that is subject to the

requirements of Title VI to publish guidance for its respective

recipients clarifying that obligation.

\[\[Page 74088\]\]

Executive Order 13166 further directs that all such guidance documents

be consistent with the compliance standards and framework detailed in

the Department of Justice\'s (DOJ\'s) Policy Guidance entitled

\`\`Enforcement of Title VI of the Civil Rights Act of 1964\--National

Origin Discrimination Against Persons With Limited English

Proficiency.\'\' See 65 FR 50123 (August 16, 2000) (DOJ\'s General LEP

Guidance).

DOT published its initial guidance regarding its recipients\'

obligations to take reasonable steps to ensure access by LEP persons on

January 22, 2001, and requested public comment on the guidance. See 66

FR 6733. DOT received 21 comments in response to its January 22, 2001,

policy guidance. The comments reflected the views of individuals,

organizations serving LEP populations, organizations favoring the use

of the English language, and recipient agencies. While many comments

identified areas for improvement and/or revision, the majority of the

comments on the DOT LEP Guidance expressed agreement with its overall

goal of ensuring access of LEP individuals to recipients\' services. DOT

worked closely with DOJ to ensure that recipients\' comments were

addressed in a consistent fashion.

In the order most often raised, the common areas of comment

regarded: cost considerations, especially for smaller recipients

serving few LEP persons; increased litigation risk and liability for

recipients as a result of the guidance; and use of interpreters and the

definition of \`\`qualified interpreter.\'\'

A large number of comments focused on cost considerations and

suggested that the Department address them as part of its evaluation of

the language assistance needs of LEP persons. Particularly, this

concern was expressed by state agencies that at the time received Coast

Guard grants to administer safe boating courses.\\1\\ But this policy

guidance does not require DOT recipients to translate all courses or

materials in every circumstance or to take unreasonable or burdensome

steps in providing LEP persons access. We have clarified the guidance

to better convey its flexibility, based on the four-factor analysis set

forth in DOJ\'s General LEP Guidance.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\1\\ This guidance does not address the extent to which Executive

Order 13166 requires language access services in the provision of

boating safety courses funded by the Coast Guard, because that

agency is no longer a component of the Department of Transportation.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Several recipients commented that they serve few if any LEP persons

and that the cost of interpreting all of their courses and materials

would be excessive and unnecessary. While none urged that costs be

excluded from consideration altogether, at least one comment expressed

concern that a recipient could use cost as a basis for avoiding

otherwise reasonable and necessary language assistance to LEP persons.

In contrast, a few comments suggested that the flexible fact-dependent

compliance standard set forth in the guidance, when combined with the

desire of most recipients to avoid the risk of noncompliance, could

lead some large recipients to incur unnecessary or inappropriate fiscal

burdens in the face of already strained program budgets. The Department

is mindful that cost considerations could be inappropriately used to

avoid providing otherwise reasonable and necessary language assistance.

Similarly, cost considerations could be ignored or minimized to justify

the provision of a particular level or type of language service even

though effective alternatives exist at a minimal cost. The Department

also is aware of the possibility that satisfying the need for language

services might be quite costly for certain types of recipients,

particularly if they have not updated their programs and activities to

the changing needs of the populations they serve.

The potential for some recipients to assert adverse cost impacts in

order to avoid Title VI obligations does not, in the Department\'s view,

justify eliminating cost as a factor in all cases when determining the

necessary scope of reasonable language assistance services under DOT\'s

guidance. The Department continues to believe that costs are a

legitimate consideration in identifying the reasonableness of

particular language assistance measures, and the DOJ Recipient LEP

Guidance identifies the appropriate framework through which costs are

to be considered. See Department of Justice Final Guidance to Federal

Financial Assistance Recipients Regarding Title VI Prohibition Against

National Origin Discrimination Affecting Limited English Proficient

Persons, 67 FR 41455 (June 18, 2002).

The second most common category of comments DOT received expressed

concern over increased litigation risk and liability for recipients as

a result of the LEP Guidance. As is addressed below in the

Introduction, Alexander v. Sandoval, 532 U.S. 275 (2001), holds

principally that there is no private right of action to enforce Title

VI disparate impact regulations. The LEP Guidance is based on Title VI

and DOT\'s Title VI regulations at 49 CFR part 21 and does not provide

any private right of action beyond that which exists in those laws.

Thus, the LEP Guidance does not increase the risk of recipients\' legal

liability to private plaintiffs. However, the Department does not

dismiss the possibility that individuals may continue to initiate such

legal actions.

The third most numerous category of comments DOT received regarded

the definition of \`\`qualified interpreter\'\' and expressed
commentators\'

concern with recipients\' responsibility to make interpreters available,

especially for recipients who serve populations with extremely diverse

language needs. Set forth below in section VI are practices to help

recipients ascertain that their interpreters are both competent and

effective. This section should enable recipients to assess the

qualifications of the interpreters they use and identify any

improvements that need to be addressed.

Three of the comments urged withdrawal of the guidance, arguing it

is unsupported by law. In response, the Department notes that its

commitment to implementing Title VI and its regulations to address

language barriers is longstanding and is unaffected by recent judicial

action precluding individuals from successfully maintaining suits to

enforce agencies\' Title VI disparate impact regulations. This guidance

clarifies existing statutory and regulatory provisions by describing

the factors recipients should consider in fulfilling their

responsibilities to LEP persons.

The remaining 18 comments were generally supportive of the guidance

and DOT\'s leadership in this area. One recipient commented that

constraining LEP persons\' access to services may actually hinder their

ability to become more proficient in the English language, therefore

justifying increased programs for LEP persons. Several comments

received addressed areas unique to the provision of transportation

services to LEP persons. One recipient discussed the inconsistency

between the Federal Motor Carrier Safety Administration\'s (FMCSA\'s)

regulations requiring all drivers to speak and understand a certain

amount of English, and the guidance\'s requirement that the FMCSA

division offices provide information and services in other languages to

accommodate LEP persons. Pursuant to 49 CFR 391.11(b)(2), a person is

qualified to drive a motor vehicle if he or she \`\`\[c\]an read and
speak

the English language sufficiently to converse with the general public,

to understand highway traffic signs and signals in the English

language, to respond to official inquiries, and to make entries on

reports and records.\'\' In 1997, following an

\[\[Page 74089\]\]

American Civil Liberties Union (ACLU) legal challenge to this

requirement, DOT issued an advance notice of proposed rulemaking

(ANPRM) to address this issue. On July 24, 2003, FMCSA withdrew this

ANPRM, concluding that the information introduced in response to the

notice \`\`does not establish that the current regulation requires an

unnecessarily high level of English fluency that has resulted in a

discriminatory impact or effect based upon national origin, color, or

ethnicity.\'\' FMCSA determined the regulation \`\`as written and
properly

enforced effectively balances issues of civil rights and highway

safety.\'\' 68 FR 43890.

Another recipient, who works with community-based organizations

concerned with transportation practices and policies, suggested

mandatory LEP Access Assessments be attached to the standard financial

assistance Assurance Forms that recipients must execute, to serve as a

basis for disqualifying recipients submitting inaccurate or

substantially incomplete assessments from Federal grant funding. While

providing LEP persons with meaningful access is the law and should be

given high priority, DOT advocates a flexible approach in ensuring such

access, as outlined below in section V, in order to suit the varying

needs of its recipients, and therefore has not adopted this suggestion.

As discussed in section VIII, DOT seeks to promote voluntary compliance

to meet Title VI\'s goal of ensuring that Federal funds are not used in

a manner that discriminates on the basis of race, color, or national

origin. DOT will work with recipients to meet this goal, and will

resort to more intrusive administrative remedies only if voluntary

compliance cannot be secured and stronger measures become necessary to

ensure LEP persons have meaningful access to services from recipients

of DOT financial assistance.

This document has been modified based on careful consideration of

public comments received by DOT, and the approach DOJ adopted after

analyzing the public comments it received following its initial

guidance published at 66 FR 3834 (January 16, 2001). This guidance is

consistent with: Title VI, implementing regulations, Executive Order

13166, the DOJ General LEP Guidance, and the model DOJ Recipient

Guidance issued on June 18, 2002.

With particular emphasis on the concerns mentioned above, the

Department proposes this \`\`Limited English Proficiency Guidance for

Department of Transportation Recipients.\'\' The text of this guidance

document appears below.

Because this guidance must adhere to the Federal-wide compliance

standards and framework detailed in the model DOJ Recipient Guidance

issued on June 18, 2002, DOT specifically solicits comments on the

nature, scope, and appropriateness of the DOT-specific examples set out

in this guidance explaining and/or highlighting how those consistent

Federal-wide compliance standards are applicable to recipients of

Federal financial assistance from DOT. This guidance supplants the

existing guidance on the same subject published at 66 FR 6733 (January

22, 2001). This guidance does not constitute a regulation subject to

the rulemaking requirements of the Administrative Procedure Act, 5

U.S.C. 553.

Dated: December 7, 2005.

J. Michael Trujillo,

Director, Departmental Office of Civil Rights.

Guidance to Federal Financial Assistance Recipients Regarding Title VI

Prohibition Against National Origin Discrimination Affecting Limited

English Proficient Persons

I. Introduction

Most individuals living in the United States read, write, speak,

and understand English. There are many individuals, however, for whom

English is not their primary language. For instance, based on the 2000

census, regarding individuals older than age 5, over 26 million

individuals speak Spanish and almost 7 million individuals speak an

Asian or Pacific Island language at home. If these individuals have a

limited ability to read, write, speak, or understand English, they are

limited English proficient, or \`\`LEP.\'\'

In a 2001 Supplementary Survey by the U.S. Census Bureau, \\2\\ 33%

of Spanish speakers and 22.4% of all Asian and Pacific Island language

speakers aged 18-64 reported that they spoke English either \`\`not

well\'\' or \`\`not at all.\'\'

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\2\\ PO35. Age by Language Spoken at Home by Ability to Speak

English for the Population 5 Years and Over. Cens. Summ. File 3,

2001 Supp. Survey Summ. Tables (SF 3) (based on 12 monthly samples

during 2001) Washington: U.S. Dep\'t of Comm., Bur. of the Census.

Viewed 14 September 2004, available at:
<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://factfinder.census.gov/servlet/DTTable?_bm=y&-geo_id=D&-ds_name=D&_-lang=en&-redoLog=false&-mt_name=DSS_2001_EST_G2000_P035>

.

.

Language for LEP individuals can be a barrier to accessing

important benefits or services, understanding and exercising important

rights, complying with applicable responsibilities, or understanding

other information provided by federally funded programs and activities.

The Federal Government funds an array of services that can be made

meaningfully accessible to otherwise eligible LEP persons. The Federal

Government is committed to improving the accessibility of these

programs and activities to eligible LEP persons, a goal that reinforces

its equally important commitment to promoting programs and activities

designed to help individuals learn English. Recipients of Federal

financial assistance have an obligation to reduce language barriers

that can preclude meaningful access by LEP persons to important

government services.\\3\\

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\3\\ DOT recognizes that many recipients had language assistance

programs in place prior to the issuance of Executive Order 13166.

This policy guidance provides a uniform framework for a recipient to

integrate, formalize, and assess the continued vitality of these

existing and possibly additional reasonable efforts based on the

nature of its programs and activities, the current needs of the LEP

populations it encounters, and its prior experience in providing

language services in the community it serves.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

In certain circumstances, failure to ensure that LEP persons can

effectively participate in or benefit from federally assisted programs

and activities may violate the prohibition under Title VI of the Civil

Rights Act of 1964, 42 U.S.C. 2000d, and Title VI regulations against

national origin discrimination. The purpose of this policy guidance is

to assist recipients in fulfilling their responsibilities to provide

meaningful access to LEP persons under existing law. This guidance

clarifies existing legal requirements for LEP persons by describing the

factors recipients should consider in fulfilling their responsibilities

to LEP persons.\\4\\ These are the same criteria DOT will use in

evaluating whether recipients are complying with Title VI and Title VI

regulations.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\4\\ This policy guidance is not a regulation but rather a guide.

Title VI and its implementing regulations require that recipients

take responsible steps to ensure meaningful access by LEP persons.

Recipients should use the guidance to determine how best to comply

with statutory and regulatory obligations to provide meaningful

access to the benefits, services, information, and other important

portions of their programs and activities for individuals who are

LEP.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Executive Order 13166 charges DOJ with the responsibility for

providing LEP Guidance to other Federal agencies, such as DOT, and for

ensuring consistency among each agency-specific guidance. Consistency

among Federal Government agencies is particularly important.

Inconsistent or contradictory guidance could confuse recipients of

Federal funds and needlessly increase costs without facilitating the

meaningful access for LEP persons that this policy guidance is designed

to address. As with most government initiatives, this requires

balancing several principles.

\[\[Page 74090\]\]

While this guidance discusses that balance in some detail, it is

important to note the basic principles behind that balance. First, we

must ensure that federally assisted programs and activities aimed at

the American public do not leave individuals behind simply because they

face challenges communicating in English. This is of particular

importance because, in many cases, LEP individuals form a substantial

portion of those who particularly benefit from federally assisted

programs and activities. Second, we must achieve this goal while

finding constructive methods to reduce the costs of LEP requirements on

small businesses, small local governments, or small nonprofit

organizations that receive Federal financial assistance. There are many

productive steps that the Federal Government, either collectively or as

individual agencies, can take to help recipients reduce the costs of

language services without sacrificing meaningful access for LEP

persons. Without these steps, certain smaller recipients may choose not

to participate in federally assisted programs or activities,

threatening the critical functions that the programs or activities

strive to assist. To that end, DOT plans to continue to work with DOJ

and other Federal agencies to provide ongoing assistance and guidance

in this important area. In addition, DOT plans to work with recipients

of Federal financial assistance\--for example, with motor vehicle

departments, transit authorities, state departments of transportation,

and other transportation service providers\--and LEP persons, to

identify and share model plans, examples of best practices, and cost-

saving approaches. Moreover, DOT intends to explore how language

assistance measures and cost-containment approaches developed with

respect to its own federally conducted programs and activities can be

effectively shared or otherwise made available to recipients,

particularly small businesses, small local governments, and small

nonprofit organizations. An interagency working group on LEP has

developed a Web site,
<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.lep.gov>,
to assist in disseminating

this information to recipients, Federal agencies, and the communities

being served.

Many commentators have noted that some have interpreted the case of

Alexander v. Sandoval, 532 U.S. 275 (2001), as impliedly striking down

the regulations promulgated under Title VI that form the basis for the

part of Executive Order 13166 that applies to federally assisted

programs and activities. We have taken the position that this is not

the case, and will continue to do so. Accordingly, we will strive to

ensure that federally assisted programs and activities work in a way

that is effective for all eligible beneficiaries, including those with

limited English proficiency.

II\. Legal Authority

Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.

2000d, provides that no person shall \`\`on the ground of race, color,
or

national origin, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any program or

activity receiving Federal financial assistance.\'\' Section 602

authorizes and directs Federal agencies that are empowered to extend

Federal financial assistance to any program or activity \`\`to
effectuate

the provisions of \[section 601\] \* \* \* by issuing rules,
regulations, or

orders of general applicability.\'\' 42 U.S.C. 2000d-1.

Department of Justice regulations promulgated pursuant to section

602 forbid recipients from \`\`utiliz\[ing\] criteria or methods of

administration which have the effect of subjecting individuals to

discrimination because of their race, color, or national origin, or

have the effect of defeating or substantially impairing accomplishment

of the objectives of the program as respects individuals of a

particular race, color, or national origin.\'\' 28 CFR 42.104(b)(2).

DOT\'s Title VI regulations include almost identical language in this

regard. See 49 CFR 21.5(b)(vii)(2) (portions of these regulations are

provided in Appendix A).

The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974),

interpreted regulations promulgated by the former Department of Health,

Education, and Welfare, including a regulation similar to that of DOJ,

45 CFR 80.3(b)(2), to hold that Title VI prohibits conduct that has a

disproportionate effect on LEP persons because such conduct constitutes

national origin discrimination. In Lau, a San Francisco school district

that had a significant number of non-English-speaking students of

Chinese origin was required to take reasonable steps to provide them

with a meaningful opportunity to participate in federally funded

educational programs.

On August 11, 2000, Executive Order 13166 was issued. \`\`Improving

Access to Services for Persons With Limited English Proficiency,\'\' 65

FR 50121 (August 16, 2000). Under that order, every Federal agency that

provides financial assistance to non-Federal entities must publish

guidance on how its recipients can provide meaningful access to LEP

persons and thus comply with Title VI regulations forbidding recipients

from \`\`restrict\[ing\] an individual in any way in the enjoyment of
any

advantage or privilege enjoyed by others receiving any service,

financial aid, or other benefit under the program\'\' or from

\`\`utiliz\[ing\] criteria or methods of administration which have the

effect of subjecting individuals to discrimination because of their

race, color, or national origin, or have the effect of defeating or

substantially impairing accomplishment of the objectives of the program

as respects individuals of a particular race, color, or national

origin.\'\'

On that same day, DOJ issued a general guidance document addressed

to \`\`Executive Agency Civil Rights Officers\'\' setting forth general

principles for agencies to apply in developing guidance documents for

recipients pursuant to the Executive Order. \`\`Enforcement of Title VI

of the Civil Rights Act of 1964\--National Origin Discrimination Against

Persons With Limited English Proficiency,\'\' 65 FR 50123 (August 16,

2000\) (DOJ\'s General LEP Guidance).

Subsequently, Federal agencies raised questions regarding the

requirements of the Executive Order, especially in light of the Supreme

Court\'s decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On

October 26, 2001, the Assistant Attorney General for Civil Rights

issued a memorandum for \`\`Heads of Departments and Agencies, General

Counsels and Civil Rights Directors.\'\' This memorandum clarified and

reaffirmed the DOJ LEP Guidance in light of Sandoval. The Assistant

Attorney General stated that because Sandoval did not invalidate any

Title VI regulations that proscribe conduct that has a disparate impact

on covered groups\--the types of regulations that form the legal basis

for the part of Executive Order 13166 that applies to federally

assisted programs and activities\--the Executive Order remains in

force.\\5\\

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\5\\ The memorandum noted that some commentators have interpreted

Sandoval as impliedly striking down the disparate impact regulations

promulgated under Title VI that form the basis for the part of

Executive Order 13166 that applies to federally assisted programs

and activities. See, e.g., Sandoval, 532 U.S. at 286, 286 n.6

(\`\`\[W\]e assume for purposes of this decision that section 602

confers the authority to promulgate disparate-impact regulations; \*

\* \* We cannot help observing, however, how strange it is to say that

disparate-impact regulations are \`inspired by, at the service of,

and inseparably intertwined with\' Sec. 601 \* \* \* when Sec. 601

permits the very behavior that the regulations forbid\'\'). The

memorandum, however, made clear that DOJ disagreed with the

commentators\' interpretation. Sandoval holds principally that there

is no private right of action to enforce Title VI disparate impact

regulations. It did not address the validity of those regulations or

Executive Order 13166 or otherwise limit the authority and

responsibility of Federal agencies to enforce their own Title VI

regulations.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\[\[Page 74091\]\]

Pursuant to Executive Order 13166, DOT developed its own guidance

document for recipients and initially issued it on January 22, 2001.

\`\`DOT Guidance to Recipients on Special Language Services to Limited

English Proficient (LEP) Beneficiaries.\'\' However, in light of the

public comments received and the Assistant Attorney General\'s October

26, 2001, clarifying memorandum, DOT has revised its LEP guidance to

ensure greater consistency with DOJ\'s revised LEP guidance, published

June 18, 2002, and other agencies\' revised LEP guidance. 67 FR 117

(June 18, 2002).

III\. Who Is Covered?

Pursuant to Executive Order 13166, the meaningful access

requirement of Title VI, the Title VI regulations, and the four-factor

analysis set forth in the DOJ\'s revised LEP Guidance, 67 FR 117 (June

18, 2002), apply to the programs and activities of Federal agencies,

including DOT. Federal financial assistance includes grants,

cooperative agreements, training, use of equipment, donations of

surplus property, and other assistance. Recipients of DOT assistance

include, for example:

State departments of transportation.

State motor vehicle administrations.

Airport operators.

State highway safety programs.

Metropolitan planning organizations.

Regional transportation agencies.

Regional, state, and local transit operators.

Public safety agencies.\\6\\

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\6\\ Recipients should review DOJ\'s LEP Guidance for specific

examples of how the four-factor analysis applies to interactions

between funded law enforcement authorities and first responders.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Hazardous materials transporters and other first

responders.

State and local agencies with emergency transportation

responsibilities, for example, the transportation of supplies for

natural disasters, planning for evacuations, quarantines, and other

similar action.

Subrecipients likewise are covered when Federal funds are passed

through from one recipient to a subrecipient.

Coverage extends to a recipient\'s entire program or activity, i.e.,

to all parts of a recipient\'s operations. This is true even if only one

part of the recipient receives the Federal assistance.

Example: DOT provides assistance to a state department of

transportation to rehabilitate a particular highway on the National

Highway System. All of the operations of the entire state department of

transportation\--not just the particular highway program\--are covered
by

the DOT guidance.

Finally, some recipients operate in jurisdictions in which English

has been declared the official language. Nonetheless, these recipients

continue to be subject to Federal nondiscrimination requirements,

including those applicable to the provision of federally assisted

services to persons with limited English proficiency.

IV\. Who Is a Limited English Proficient Individual?

Individuals who do not speak English as their primary language and

who have a limited ability to read, write, speak, or understand English

can be limited English proficient, or \`\`LEP,\'\' and, therefore, are

entitled to language assistance under Title VI of the Civil Rights Act

of 1964 with respect to a particular type of service, benefit, or

encounter. However, if a Federal agency were to decide to terminate

Federal funds based on noncompliance with Title VI or its regulations,

only funds directed to the particular program or activity that is out

of compliance would be terminated. 42 U.S.C. 2000d-1.

Examples of populations likely to include LEP persons who are

served or encountered by DOT recipients and should be considered when

planning language services include, but are not limited to:

Public transportation passengers.

Persons who apply for a driver\'s license at a state

department of motor vehicles.

Persons subject to the control of state or local

transportation enforcement authorities, including, for example,

commercial motor vehicle drivers.

Persons served by emergency transportation response

programs.

Persons living in areas affected or potentially affected

by transportation projects.

Business owners who apply to participate in DOT\'s

Disadvantaged Business Enterprise program.

V. How Does a Recipient Determine the Extent of Its Obligation to

Provide LEP Services?

Recipients are required to take reasonable steps to ensure

meaningful access to their programs and activities by LEP persons.

While designed to be a flexible and fact-dependent standard, the

starting point is an individualized assessment that balances the

following four factors: (1) The number or proportion of LEP persons

eligible to be served or likely to be encountered by a program,

activity, or service of the recipient or grantee; (2) the frequency

with which LEP individuals come in contact with the program; (3) the

nature and importance of the program, activity, or service provided by

the recipient to people\'s lives; and (4) the resources available to the

recipient and costs. As indicated above, the intent of this policy

guidance is to suggest a balance that ensures meaningful access by LEP

persons to critical services while not imposing undue burdens on small

businesses, small local governments, or small nonprofit organizations.

After applying the above four-factor analysis to the various kinds

of contacts a recipient has with the public, the recipient may conclude

that different language assistance measures are sufficient to ensure

meaningful access to the different types of programs or activities in

which it engages. For instance, some of a recipient\'s activities will

have a greater impact on or contact with LEP persons than others, and

thus may require more in the way of language assistance. The

flexibility that recipients have in addressing the needs of the LEP

populations they serve does not diminish, and should not be used to

minimize, the obligation that those needs be addressed. DOT recipients

should apply the following four factors to the various kinds of

contacts that they have with the public to assess language needs and

decide what reasonable steps they should take to ensure meaningful

access for LEP persons.

\(1\) The Number or Proportion of LEP Persons Served or Encountered in

the Eligible Service Population

The greater the number or proportion of LEP persons from a

particular language group served or encountered in the eligible service

population, the more likely language services are needed. Ordinarily,

persons \`\`eligible to be served, or likely to be directly affected,

by\'\' a recipient\'s programs or activities are those who are in fact,

served or encountered in the eligible service population. This

population will be program-specific, and includes persons who are in

the geographic area that is part of the recipient\'s service area.

However, where, for instance, a motor vehicle office serves a large LEP

population, the appropriate service area is that served by the office,

and not the entire population served by the department. Where no

service area has previously been approved, the relevant service area

may be that which is approved by state or local authorities or

designated by the recipient itself,

\[\[Page 74092\]\]

provided that these designations do not themselves discriminatorily

exclude certain populations. When considering the number or proportion

of LEP individuals in a service area, recipients should consider LEP

parent(s) whose English proficient or LEP minor children and dependents

encounter the services of DOT recipients.

Recipients should first examine their prior experiences with LEP

individuals and determine the breadth and scope of language services

that are needed. In conducting this analysis, it is important to:

Include language minority populations that are eligible beneficiaries

of recipients\' programs, activities, or services but may be underserved

because of existing language barriers; and consult additional data, for

example, from the census, school systems and community organizations,

and data from state and local governments, community agencies, school

systems, religious organizations, and legal aid entities.\\7\\

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\7\\ The focus of the analysis is on lack of English proficiency,

not the ability to speak more than one language. Note that

demographic data may indicate the most frequently spoken languages

other than English and the percentage of people who speak that

language but speak or understand English less than well. People who

are also proficient in English may speak some of the most commonly

spoken languages other than English.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\(2\) The Frequency With Which LEP Individuals Come in Contact With the

Program, Activity, or Service

Recipients should assess, as accurately as possible, the frequency

with which they have or should have contact with LEP individuals from

different language groups seeking assistance, as the more frequent the

contact, the more likely enhanced language services will be needed. The

steps that are reasonable for a recipient that serves an LEP person on

a one-time basis will be very different than those expected from a

recipient that serves LEP persons daily. Recipients should also

consider the frequency of different types of language contacts, as

frequent contacts with Spanish-speaking people who are LEP may require

certain assistance in Spanish, while less frequent contact with

different language groups may suggest a different and/or less

intensified solution. If an LEP individual accesses a program or

service on a daily basis, a recipient has greater duties than if the

same individual\'s program or activity contact is unpredictable or

infrequent. However, even recipients that serve LEP persons on an

unpredictable or infrequent basis should use this balancing analysis to

determine what to do if an LEP individual seeks services under the

program in question. This plan need not be intricate. It may be as

simple as being prepared to use a commercial telephonic interpretation

service to obtain immediate interpreter services. Additionally, in

applying this standard, recipients should consider whether appropriate

outreach to LEP persons could increase the frequency of contact with

LEP language groups.

\(3\) The Nature and Importance of the Program, Activity, or Service

Provided by the Program

The more important the activity, information, service, or program,

or the greater the possible consequences of the contact to the LEP

individuals, the more likely language services are needed. The

obligations to communicate rights to an LEP person who needs public

transportation differ, for example, from those to provide recreational

programming. A recipient needs to determine whether denial or delay of

access to services or information could have serious or even life-

threatening implications for the LEP individual. Decisions by a

Federal, state, or local entity to make an activity compulsory, such as

requiring a driver to have a license, can serve as strong evidence of

the importance of the program or activity.

\(4\) The Resources Available to the Recipient and Costs

A recipient\'s level of resources and the costs imposed may have an

impact on the nature of the steps it should take in providing

meaningful access for LEP persons. Smaller recipients with more limited

budgets are not expected to provide the same level of language services

as larger recipients with larger budgets. In addition, \`\`reasonable

steps\'\' may cease to be reasonable where the costs imposed

substantially exceed the benefits. Recipients should carefully explore

the most cost-effective means of delivering competent and accurate

language services before limiting services due to resource concerns.

Resource and cost issues, however, can often be reduced by

technological advances, reasonable business practices, and the sharing

of language assistance materials and services among and between

recipients, advocacy groups, affected populations, and Federal

agencies. For example, the following practices may reduce resource and

cost issues where appropriate:

Training bilingual staff to act as interpreters and

translators.

Information sharing through industry groups.

Telephonic and video conferencing interpretation services.

Translating vital documents posted on Web sites.

Pooling resources and standardizing documents to reduce

translation needs.

Using qualified translators and interpreters to ensure

that documents need not be \`\`fixed\'\' later and that inaccurate

interpretations do not cause delay or other costs.

Centralizing interpreter and translator services to

achieve economies of scale.\\8\\

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\8\\ Small recipients with limited resources may find that

entering into a bulk telephonic interpretation service contract will

prove cost effective.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Formalized use of qualified community volunteers.

Large entities and those entities serving a significant number or

proportion of LEP persons should ensure that their resource limitations

are well substantiated before using this factor as a reason to limit

language assistance. Such recipients may find it useful to be able to

articulate, through documentation or in some other reasonable manner,

their process for determining that language services would be limited

based on resources or costs.

This four-factor analysis necessarily implicates the \`\`mix\'\' of LEP

services required. Recipients have two main ways to provide language

services: Oral interpretation either in person or via telephone

interpretation service (hereinafter \`\`interpretation\'\') and written

translation (hereinafter \`\`translation\'\'). Oral interpretation can

range from on-site interpreters for critical services provided to a

high volume of LEP persons to access through commercially available

telephonic interpretation services. Written translation, likewise, can

range from translation of an entire document to translation of a short

description of the document. In some cases, language services should be

made available on an expedited basis while in others the LEP individual

may be referred to another office of the recipient for language

assistance.

The correct mix should be based on what is both necessary and

reasonable in light of the four-factor analysis. For instance, a motor

vehicle department or an emergency hazardous material clean-up team in

a largely Hispanic neighborhood may need immediate oral interpreters

available and should give serious consideration to hiring bilingual

staff (of course, many such departments have already made these

arrangements). Additionally, providing public

\[\[Page 74093\]\]

transportation access to LEP persons is crucial. An LEP person\'s

inability to utilize effectively public transportation may adversely

affect his or her ability to obtain health care, or education, or

access to employment. In contrast, there may be circumstances where the

importance and nature of the activity and number or proportion and

frequency of contact with LEP persons may be low and the costs and

resources needed to provide language services may be high\--such as in

the case of a voluntary general public tour of an airport or train

station\--in which pre-arranged language services for the particular

service may not be necessary. Regardless of the type of language

services provided, quality and accuracy of those services can be

critical. Recipients have substantial flexibility in determining the

appropriate mix.

VI\. Selecting Language Assistance Services

Recipients may provide language services in either oral or written

form. Quality and accuracy of the language service is critical in order

to avoid potential serious consequences to the LEP person and to the

recipient.

A. Oral Language Services (Interpretation)

Interpretation is the act of listening to something in one language

(source language) and orally translating it into another language

(target language). Where interpretation is needed and is reasonable,

recipients should consider some or all of the options below for

providing competent interpreters in a timely manner.

Competence of Interpreters. When providing oral assistance,

recipients should ensure competency of the language service provider,

no matter which of the strategies outlined below are used. Competency

requires more than self-identification as bilingual. Some bilingual

staff and community volunteers, for instance, may be able to

communicate effectively in a different language when communicating

information directly in that language, but not be competent to

interpret into and out of English. Likewise, they may not be able to do

written translations.

Competency to interpret, however, does not necessarily mean formal

certification as an interpreter, although certification is helpful.

When using interpreters, recipients should ensure that they:

Demonstrate proficiency in and ability to communicate

information accurately in both English and in the other language and

identify and employ the appropriate mode of interpreting (e.g.,

consecutive, simultaneous, summarization, or sight translation).

Have knowledge in both languages of any specialized terms

or concepts peculiar to the recipient\'s program or activity and of any

particularized vocabulary and phraseology used by the LEP person;\\9\\

and understand and follow confidentiality and impartiality rules to the

same extent as the recipient employee for whom they are interpreting

and/or to the extent their position requires.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\9\\ Many languages have \`\`regionalisms,\'\' or differences in

usage. For instance, a word that may be understood to mean something

in Spanish for someone from Cuba may not be so understood by someone

from Mexico. In addition, because there may be languages that do not

have an appropriate direct interpretation of certain legal terms,

the interpreter should be able to provide the most appropriate

interpretation. The interpreter should make the recipient aware of

the issue and the interpreter and recipient can then work to develop

a consistent and appropriate set of descriptions of these terms in

that language that can be used again, when appropriate.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Understand and adhere to their role as interpreters

without deviating into a role as counselor, legal advisor, or other

roles.

Additionally, some recipients may have their own requirements for

interpreters, as individual rights may depend on precise, complete, and

accurate interpretations or translations. In some cases, interpreters

may be required to demonstrate that their involvement in a matter would

not create a conflict of interest.

While quality and accuracy of language services are critical, they

are nonetheless part of the appropriate mix of LEP services required.

The quality and accuracy of language services as part of disaster

relief programs, or in the provision of emergency supplies and

services, for example, must be extraordinarily high, while the quality

and accuracy of language services in a bicycle safety course need not

meet the same exacting standards.

Finally, when interpretation is needed and is reasonable, it should

be provided in a timely manner in order to be effective. Generally, to

be \`\`timely,\'\' the recipient should provide language assistance at a

time and place that avoids the effective denial of the service,

benefit, or right at issue or the imposition of an undue burden on or

delay in important rights, benefits, or services to the LEP person. For

example, when the timeliness of services is important, such as when an

LEP person needs access to public transportation, a DOT recipient does

not provide meaningful LEP access when it has only one bilingual staff

member available one day a week to provide the service.

Hiring Bilingual Staff. When particular languages are encountered

often, hiring bilingual staff offers one of the best, and often most

economical, options. Recipients can, for example, fill public contact

positions, such as transit station managers, department of motor

vehicle service representatives, security guards, or program directors,

with staff that are bilingual and competent to communicate directly

with LEP persons in their language. If bilingual staff members are also

used to interpret between English speakers and LEP persons, or to

orally interpret written documents from English into another language,

they should be competent in the skill of interpreting, as discussed

above. Effective management strategies, including any appropriate

adjustments in assignments and protocols for using bilingual staff, can

ensure that bilingual staff members are fully and appropriately

utilized. When bilingual staff cannot meet all of the language service

obligations of the recipient, the recipient should turn to other

options.

Hiring Staff Interpreters. Hiring interpreters may be most helpful

where there is a frequent need for interpreting services in one or more

languages. Depending on the facts, sometimes it may be necessary and

reasonable to provide on-site interpreters to facilitate accurate and

meaningful communication with an LEP person.

Contracting for Interpreters. Contract interpreters may be a cost-

effective option when there is no regular need for a particular

language skill. In addition to commercial and other private providers,

many community-based organizations and mutual assistance associations

provide interpretation services for particular languages. Contracting

with interpreters and providing training regarding the recipient\'s

programs and processes to these organizations can be a cost-effective

option for providing language services to LEP persons from those

language groups.

Using Telephone Interpreter Lines. Telephone interpreter service

lines often offer prompt interpreting assistance in many different

languages. They may be particularly appropriate where the mode of

communicating with an English proficient person would also be over the

phone. Although telephonic interpretation services are useful in many

situations, it is important to ensure that, when using such services,

the interpreters are competent to interpret any technical or legal

terms specific to a particular program that may be important parts of

the conversation. Nuances in language and non-verbal communication can

often assist an

\[\[Page 74094\]\]

interpreter and cannot be recognized over the phone. The issues

discussed above regarding interpreter competency are also relevant to

telephonic interpreters. Video teleconferencing and allowing

interpreters to review relevant documents in advance may also be

helpful.

Using Community Volunteers. In addition to consideration of

bilingual staff, staff interpreters, or contract interpreters (either

in-person or by telephone) as options to ensure meaningful access by

LEP persons, use of recipient-coordinated community volunteers may

provide a cost-effective supplemental language assistance strategy

under appropriate circumstances. They may be particularly useful in

providing language access for a recipient\'s less critical programs and

activities. To the extent the recipient relies on community volunteers,

it is often best to use volunteers who are trained in the information

or services of the program and can communicate directly with LEP

persons in their language. Just as with all interpreters, community

volunteers used to interpret between English speakers and LEP persons,

or to orally translate documents, should be competent in the skill of

interpreting and knowledgeable about applicable confidentiality and

impartiality rules. Recipients should consider formal arrangements with

community-based organizations that provide volunteers to address these

concerns and help ensure that services are available more regularly.

Use of Family Members, Friends, Other Customers/Passengers as

Interpreters. Although recipients should not plan to rely on an LEP

person\'s family members, friends, or other informal interpreters to

provide meaningful access to important programs and activities, where

LEP persons so desire, they should be permitted to use an interpreter

of their choice at their own expense (whether a professional

interpreter, family member, or friend) in place of or as a supplement

to the free language services expressly offered by the recipient. LEP

persons may feel more comfortable when a trusted family member or

friend acts as an interpreter. In addition, in exigent circumstances

that are not reasonably foreseeable, temporary use of interpreters not

provided by the recipient may be necessary. However, with proper

planning and implementation, recipients should be able to avoid most

such situations.

Recipients, however, should take special care to ensure that family

members, legal guardians, caretakers, and other informal interpreters

are appropriate in light of the circumstances and subject matter of the

program, service or activity, including protection of the recipient\'s

own administrative, mission-related, or enforcement interest in

accurate interpretation. In many circumstances, family members

(especially children) or friends are not competent to provide quality

and accurate interpretations. Issues of confidentiality, privacy, or

conflict of interest may also arise. LEP individuals may feel

uncomfortable revealing or describing sensitive or confidential

information to a family member, friend, or member of the local

community. In addition, such informal interpreters may have a personal

connection to the LEP person or an undisclosed conflict of interest,

such as the desire to obtain an LEP person\'s personal identification

information, for example, in the case of an LEP person attempting to

apply for a driver\'s license. Thus, DOT recipients should generally

offer free interpreter services to the LEP person. This is particularly

true in situations in which health, safety, or access to important

benefits and services are at stake, or when credibility and accuracy

are important to protect an individual\'s rights and access to important

services.

An example of such a case is when no interpreters, or bilingual or

symbolic signs are available in a state department of motor vehicles.

In an effort to apply for a driver\'s license, vehicle registration, or

parking permit, an LEP person may be forced to enlist the help of a

stranger for translation. This practice may raise serious issues of

competency or confidentiality and may compromise the personal security

of the LEP person, as the stranger could have access to the LEP

person\'s personal identification information, such as his or her name,

phone number, address, social security number, driver\'s license number

(if different from the social security number), and medical

information. However, there are situations where proper application of

the four factors would lead to a conclusion that recipient-provided

services are not necessary. An example of this is a voluntary

educational tour of an airport, or a train or bus station. There, the

importance and nature of the activity may be relatively low and

unlikely to implicate issues of confidentiality, conflict of interest,

or the need for accuracy. In addition, the resources needed and costs

of providing language services may be high. In such a setting, an LEP

person\'s use of family, friends, or others to interpret may be

appropriate.

If the LEP person voluntarily chooses to provide his or her own

interpreter, a recipient should consider whether a record of that

choice and of the recipient\'s offer of assistance is appropriate. Where

precise, complete, and accurate interpretations or translations of

information and/or testimony are critical, or where the competency of

the LEP person\'s interpreter is not established, a recipient might

decide to provide its own, independent interpreter, even if an LEP

person wants to use his or her own interpreter as well. Extra caution

should be exercised when the LEP person chooses to use a minor as the

interpreter. While the LEP person\'s decision should be respected, there

may be additional issues of competency, confidentiality, or conflict of

interest when the choice involves using children as interpreters. The

recipient should take care to ensure that the LEP person\'s choice is

voluntary, that the LEP person is aware of the possible problems if the

preferred interpreter is a minor child, and that the LEP person knows

that a competent interpreter could be provided by the recipient at no

cost.

B. Written Language Services (Translation)

Translation is the replacement of a written text from one language

(source language) into an equivalent written text in another language

(target language).

What Documents Should be Translated? After applying the four-factor

analysis, a recipient may determine that an effective LEP plan for its

particular program or activity includes the translation of vital

written materials into the language of each frequently encountered LEP

group eligible to be served and/or likely to be affected by the

recipient\'s program. Such written materials could include, for example:

Driver\'s license, automobile registration, and parking

permit forms.

Parking tickets, citation forms, and violation or

deficiency notices, or pertinent portions thereof.

Emergency transportation information.

Markings, signs, and packaging for hazardous materials and

substances.

Signs in bus and train stations, and in airports.

Notices of public hearings regarding recipients\' proposed

transportation plans, projects, or changes, and reduction, denial, or

termination of services or benefits.

Signs in waiting rooms, reception areas, and other initial

points of entry.

Notices advising LEP persons of free language assistance

and language identification cards for staff (i.e., \`\`I speak\'\'
cards).

\[\[Page 74095\]\]

Statements about the services available and the right to

free language assistance services in appropriate non-English languages,

in brochures, booklets, outreach and recruitment information, and other

materials routinely disseminated to the public.

Written tests that do not assess English-language

competency, but test competency for a particular license, job, or skill

for which knowing English is not required.

Applications, or instructions on how to participate in a

recipient\'s program or activity or to receive recipient benefits or

services.

Consent forms.

Whether or not a document (or the information it solicits) is

\`\`vital\'\' may depend upon the importance of the program,
information,

encounter, or service involved, and the consequence to the LEP person

if the information in question is not accurate or timely. For instance,

applications for bicycle safety courses should not generally be

considered vital, whereas access to safe driving handbooks could be

considered vital. Where appropriate, recipients are encouraged to

create a plan for consistently determining, over time and across their

various activities, what documents are \`\`vital\'\' to the meaningful

access of the LEP populations they serve.

Classifying a document as vital or non-vital is sometimes

difficult, especially in the case of outreach materials like brochures

or other information on rights and services. Awareness of rights or

services is an important part of \`\`meaningful access,\'\' as lack of

awareness may effectively deny LEP individuals meaningful access. Thus,

where a recipient is engaged in community outreach efforts in

furtherance of its programs and activities, it should regularly assess

the needs of the populations frequently encountered or affected by the

program or activity to determine whether certain critical outreach

materials should be translated. Community organizations may be helpful

in determining what outreach materials may be most helpful to

translate, and some such translations may be made more effective when

done in tandem with other outreach methods, including utilizing the

ethnic media, schools, and religious and community organizations to

spread a message.

Sometimes a very large document may include both vital and non-

vital information. This may also be the case when the title and a phone

number for obtaining more information on the contents of the document

in frequently encountered languages other than English is critical, but

the document is sent out to the general public and cannot reasonably be

translated into many languages. Thus, vital information may include,

for instance, providing information in appropriate languages regarding

where an LEP person might obtain an interpretation or translation of

the document.

Into What Languages Should Documents be Translated? The extent of

the recipient\'s obligation to provide written translations of documents

should be determined by the recipient on a case-by-case basis, looking

at the totality of the circumstances in light of the four-factor

analysis. Because translation is a one-time expense, consideration

should be given to whether the upfront cost of translating a document

(as opposed to oral interpretation) should be amortized over the likely

lifespan of the document when applying this four-factor analysis.

The languages spoken by the LEP individuals with whom the recipient

has frequent contact determine the languages into which vital documents

should be translated. However, because many DOT recipients serve

communities in large cities or across an entire state and regularly

serve areas with LEP populations that speak dozens and sometimes more

than 100 languages, it would be unrealistic to translate all written

materials into each language. Although recent technological advances

have made it easier for recipients to store and share translated

documents, such an undertaking would incur substantial costs and

require substantial resources. However, well-substantiated claims of

lack of resources to translate all such documents into dozens or more

than 100 languages do not necessarily relieve the recipient of the

obligation to translate vital documents into at least several of the

more frequently encountered languages. The recipient should then set

benchmarks for continued translations into the remaining languages over

time.

Safe Harbor. Many recipients would like to ensure with greater

certainty that they comply with their obligations to provide written

translations in languages other than English. Paragraphs (a) and (b)

below outline the circumstances that can provide a \`\`safe harbor\'\'
for

recipients regarding the requirements for translation of written

materials. A \`\`safe harbor\'\' means that if a recipient provides
written

translations under these circumstances, such action will be considered

strong evidence of compliance with the recipient\'s written-translation

obligations under Title VI.

The failure to provide written translations under the circumstances

outlined in paragraphs (a) and (b) does not mean there is

noncompliance. Rather these paragraphs merely provide a guide for

recipients that would like greater certainty of compliance than can be

provided by a fact-intensive, four-factor analysis. For example, even

if a safe harbor is not used, if written translation of a certain

document(s) would be so burdensome as to defeat the legitimate

objectives of its program, it is not necessary. Other ways of providing

meaningful access, such as effective oral interpretation of certain

vital documents, might be acceptable under such circumstances.

Safe Harbor. The following actions will be considered strong

evidence of compliance with the recipient\'s written-translation

obligations:

\(a\) The DOT recipient provides written translations of vital

documents for each eligible LEP language group that constitutes 5% or

1,000, whichever is less, of the population of persons eligible to be

served or likely to be affected or encountered. Translation of other

documents, if needed, can be provided orally; or

\(b\) If there are fewer than 50 persons in a language group that

reaches the 5% trigger in (a), the recipient does not translate vital

written materials but provides written notice in the primary language

of the LEP language group of the right to receive competent oral

interpretation of those written materials, free of cost.

These safe harbor provisions apply to the translation of written

documents only. They do not affect the requirement to provide

meaningful access to LEP individuals through competent oral

interpreters where oral language services are needed and are

reasonable.

Competence of Translators. As with oral interpreters, translators

of written documents should be competent. Many of the same

considerations apply. However, the skill of translating is very

different from the skill of interpreting, and a person who is a

competent interpreter may or may not be competent to translate, and

vice versa.

Particularly where vital documents are being translated, competence

can often be achieved by use of certified translators. Certification or

accreditation may not always be possible or necessary.\\10\\ Competence

can often be ensured by having a second, independent translator check

the work of the primary translator. Alternatively, one translator can

translate the document, and a second, independent

\[\[Page 74096\]\]

translator could translate it back into English to check that the

appropriate meaning has been conveyed. This is called \`\`back

translation.\'\'

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\10\\ For those languages in which no formal accreditation

exists, a particular level of membership in a professional

translation association can provide some indicator of professional

competence.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Translators should understand the expected reading level of the

audience and, where appropriate, have fundamental knowledge about the

target language group\'s vocabulary and phraseology. Sometimes direct

translation of materials results in a translation that is written at a

much more difficult level than the English-language version or has no

relevant equivalent meaning.\\11\\ Community organizations may be able
to

help consider whether a document is written at an appropriate level for

the audience. Likewise, consistency in the words and phrases used to

translate terms of art, legal, or other technical or programmatic terms

helps avoid confusion by LEP individuals and may reduce costs. Creating

or using already created glossaries of commonly used terms may be

useful for LEP persons and translators and cost effective for the

recipient. Providing translators with examples of previous accurate

translations of similar material by other recipients or Federal

agencies may also be helpful.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\11\\ For instance, although there may be languages that do not

have a direct translation of some legal, technical, or program-

related terms, the translator should be able to provide an

appropriate translation. The translator should likely also make the

recipient aware of this. Recipients can then work with translators

to develop a consistent and appropriate set of descriptions of those

terms in that language that can be used again, when appropriate.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

While quality and accuracy of translation services are critical,

they are nonetheless part of the appropriate mix of LEP services

required. For instance, documents that are simple and have no important

consequences for LEP persons who rely on them may be translated by

translators who are less skilled than important documents with legal or

other information upon which reliance has important consequences

(including, e.g., driver\'s license written exams and documents

regarding important benefits or services, or health, safety, or legal

information). The permanent nature of written translations, however,

imposes additional responsibility on the recipient to ensure that the

quality and accuracy permit meaningful access by LEP persons.

VII\. Elements of an Effective Implementation Plan on Language

Assistance for LEP Persons

After completing the four-factor analysis and deciding what

language assistance services are appropriate, a recipient should

develop an implementation plan to address the identified needs of the

LEP populations it serves. Although recipients have considerable

flexibility in developing such a plan, maintaining a periodically

updated written plan on language assistance for LEP persons (\`\`LEP

plan\'\') for use by recipient employees serving the public would be an

appropriate and cost-effective means of documenting compliance and

providing a framework for the provision of timely and reasonable

language assistance. Such written plans may also provide additional

benefits to a recipient\'s managers in the areas of training,

administration, planning, and budgeting. Thus, recipients may choose to

document the language assistance services in their plan, and how staff

and LEP persons can access those services. Certain DOT recipients, such

as those serving very few LEP persons or those with very limited

resources, may choose not to develop a written LEP plan. However, the

absence of a written LEP plan does not obviate the underlying

obligation to ensure meaningful access by LEP persons to a recipient\'s

program or activities. In that event, a recipient should consider

alternative ways to reasonably articulate a plan for providing

meaningful access. Early input from entities such as schools, religious

organizations, community groups, and groups working with new immigrants

can be helpful in forming this planning process. The following five

steps may be helpful in designing an LEP plan and are typically part of

effective implementation plans.

\(1\) Identifying LEP Individuals Who Need Language Assistance

There should be an assessment of the number or proportion of LEP

individuals eligible to be served or encountered and the frequency of

encounters pursuant to the first two factors in the four-factor

analysis.

One way to determine the language of communication is to use

language identification cards (or \`\`I speak cards\'\'), which invite
LEP

persons to identify their language needs to staff. Such cards, for

instance, might say, \`\`I speak Spanish\'\' in both Spanish and
English,

or \`\`I speak Vietnamese\'\' in both English and Vietnamese. To reduce

costs of compliance, the Federal Government has made a set of these

cards available on the Internet. The Census Bureau\'s \`\`I speak
card\'\'

can be found and downloaded at
<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usdoj.gov/crt/cor/13166.htm>.

When records are normally kept of past interactions with members of

the public, the language of the LEP person can be included as part of

the record. In addition to helping employees identify the language of

LEP persons they encounter, this process will help in future

applications of the first two factors of the four-factor analysis. In

addition, posting notices in commonly encountered languages notifying

LEP persons of language assistance will encourage them to self-

identify.

\(2\) Language Assistance Measures

An effective LEP plan would likely include information about the

ways in which language assistance will be provided. For instance,

recipients may want to include information on at least the following:

Types of language services available.

How recipient staff can obtain those services.

How to respond to LEP callers.

How to respond to written communications from LEP persons.

How to respond to LEP individuals who have in-person

contact with recipient staff.

How to ensure competency of interpreters and translation

services.

\(3\) Training Staff

Staff members should know their obligations to provide meaningful

access to information and services for LEP persons, and all employees

in public contact positions should be properly trained. An effective

LEP plan would likely include training to ensure that:

Staff knows about LEP policies and procedures.

Staff having contact with the public (or those in a

recipient\'s custody) is trained to work effectively with in-person and

telephone interpreters.

Recipients may want to include this training as part of the

orientation for new employees. Recipients have flexibility in deciding

the manner in which the training is provided, and the more frequent the

contact with LEP persons, the greater the need will be for in-depth

training. However, management staff, even if they do not interact

regularly with LEP persons, should be fully aware of and understand the

plan so they can reinforce its importance and ensure its implementation

by staff.

\(4\) Providing Notice to LEP Persons

Once an agency has decided, based on the four factors, that it will

provide language services, it is important that the recipient notify

LEP persons of services available free of charge. Recipients should

provide this notice in languages LEP persons would understand. Examples

of notification that recipients should consider include:

\[\[Page 74097\]\]

Posting signs in intake areas and other entry points. This

is important so that LEP persons can learn how to access those language

services at initial points of contact. This is particularly true in

areas with high volumes of LEP persons seeking access to certain

transportation safety information, or other services and activities run

by DOT recipients.\\12\\

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\12\\ For instance, signs in intake offices could state that free

language assistance is available. The signs should be translated

into the most common languages encountered and should explain how to

get the necessary language assistance. The Social Security

Administration has made such signs available at
<http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ssa.gov/multilanguage/langlist1.htm>.

DOT recipients could, for example,

modify these signs for use in programs, activities, and services.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Stating in outreach documents that language services are

available from the agency. Announcements could be in, for instance,

brochures, booklets, and in outreach and recruitment information. These

statements should be translated into the most common languages and

could be \`\`tagged\'\' onto the front of common documents.

Working with community-based organizations and other

stakeholders to inform LEP individuals of the recipients\' services,

including the availability of language assistance services.

Using an automated telephone voice mail attendant or menu

system. The system could be in the most common languages encountered.

It should provide information about available language assistance

services and how to get them.

Including notices in local newspapers in languages other

than English.

Providing notices on non-English-language radio and

television stations about the available language assistance services

and how to get them.

Providing presentations and/or notices at schools and

religious organizations.

\(5\) Monitoring and Updating the LEP Plan

Recipients should, where appropriate, have a process for

determining, on an ongoing basis, whether new documents, programs,

services, and activities need to be made accessible for LEP

individuals, and they may want to provide notice of any changes in

services to the LEP public and to employees.

In addition, recipients should consider whether changes in

demographics, types of services, or other needs require annual

reevaluation of their LEP plan. Less frequent reevaluation may be more

appropriate where demographics, services, and needs are more static.

One good way to evaluate the LEP plan is to seek feedback from the

community.

In their reviews, recipients may want to consider assessing changes

in:

Current LEP populations in the service area or population

affected or encountered.

Frequency of encounters with LEP language groups.

Nature and importance of activities to LEP persons.

Availability of resources, including technological

advances and sources of additional resources, and the costs imposed.

Whether existing assistance is meeting the needs of LEP

persons.

Whether staff knows and understands the LEP plan and how

to implement it.

Whether identified sources for assistance are still

available and viable.

In addition to these five elements, effective plans set clear

goals, management accountability, and opportunities for community input

and planning throughout the process.

VIII\. Voluntary Compliance Effort

The goal for Title VI and Title VI regulatory enforcement is to

achieve voluntary compliance. DOT enforces Title VI as it applies to

recipients\' responsibilities to LEP persons through the procedures

provided for in DOT\'s Title VI regulations (49 CFR part 21, portions of

which are provided in Appendix A).

The Title VI regulations provide that DOT will investigate whenever

it receives a complaint, report, or other information that alleges or

indicates possible noncompliance with Title VI or its regulations. If

the investigation results in a finding of compliance, DOT will inform

the recipient in writing of this determination, including the basis for

the determination. DOT uses voluntary mediation to resolve most

complaints. However, if a case is fully investigated and results in a

finding of noncompliance, DOT must inform the recipient of the

noncompliance through a Letter of Findings that sets out the areas of

noncompliance and the steps that must be taken to correct the

noncompliance. It must attempt to secure voluntary compliance through

informal means. If the matter cannot be resolved informally, DOT must

secure compliance through the termination of Federal assistance after

the DOT recipient has been given an opportunity for an administrative

hearing and/or by referring the matter to DOJ with a recommendation

that appropriate proceedings be brought to enforce the laws of the

United States. In engaging in voluntary compliance efforts, DOT

proposes reasonable timetables for achieving compliance and consults

with and assists recipients in exploring cost-effective ways of coming

into compliance. In determining a recipient\'s compliance with the Title

VI regulations, DOT\'s primary concern is to ensure that the
recipient\'s

policies and procedures provide meaningful access for LEP persons to

the recipient\'s programs, activities, and services.

While all recipients must work toward building systems that will

ensure access for LEP individuals, DOT acknowledges that the

implementation of a comprehensive system to serve LEP individuals is a

process and that a system will evolve over time as it is implemented

and periodically reevaluated. As recipients take reasonable steps to

provide meaningful access to federally assisted programs and activities

for LEP persons, DOT will look favorably on intermediate steps

recipients take that are consistent with this guidance, and that, as

part of a broader implementation plan or schedule, move their service

delivery system toward providing full access to LEP persons. This does

not excuse noncompliance but instead recognizes that full compliance in

all areas of a recipient\'s activities and for all potential language

minority groups may reasonably require a series of implementing actions

over a period of time. However, in developing any phased implementation

schedule, DOT recipients should ensure that the provision of

appropriate assistance for significant LEP populations or with respect

to activities having a significant impact on the health, safety, legal

rights, or livelihood of beneficiaries is addressed first. Recipients

are encouraged to document their efforts to provide LEP persons with

meaningful access to federally assisted programs and activities.

IX\. Promising Practices

The following examples are provided as illustrations of the

responses of some recipients to the need to provide services to LEP

persons, and are meant to be interesting and useful examples of ways in

which LEP recipients can provide language services. Recipients are

responsible for ensuring meaningful access to all portions of their

program or activity, not just the portions to which DOT assistance is

targeted. So long as the language services are accurate, timely, and

appropriate in the manner outlined in this guidance, the types of

promising practices summarized below can assist recipients in moving

toward

\[\[Page 74098\]\]

meeting the meaningful access requirements of Title VI and the Title VI

regulations. These examples do not, however, constitute an endorsement

by DOT, which will evaluate recipients\' situations on a case-by-case

basis using the factors described elsewhere in this guidance.

Language Banks. In several parts of the country, both urban and

rural, community organizations and providers have created language

banks that dispatch competent interpreters, at reasonable rates, to

participating organizations, reducing the need to have on-staff

interpreters for low-demand languages. This approach is particularly

appropriate where there is a scarcity of language services or where

there is a large variety of language needs but limited demand for any

particular language.

Language Support Offices. A state social services agency has

established an \`\`Office for Language Interpreter Services and

Translation.\'\' This office tests and certifies all in-house and

contract interpreters, provides agency-wide support for translation of

forms, client mailings, publications, and other written materials into

non-English languages, and monitors the policies of the agency and its

vendors that affect LEP persons.

Some recipients have established working liaisons with local

community colleges to educate the LEP community in transportation

matters. One city formed a multilingual/multi-agency task force to

address language barriers and the concerns of the affected communities.

The task force completed a survey of city staff with multilingual

skills in order to identify employees willing to serve as interpreters

and is preparing lists of community and cultural organizations.

Use of Technology. Some recipients use their Internet and/or

intranet capabilities to store translated documents online, which can

be retrieved as needed and easily shared with other offices. For

example, a multilanguage gateway on a Web page could be developed for

LEP persons and the public to access documents translated into other

languages.

Telephone Information Lines and Hotlines. Recipients have

subscribed to telephone-based interpretation services and established

telephone information lines in common languages to instruct callers on

how to leave a recorded message that will be answered by someone who

speaks the caller\'s language. For example, a recipient may choose to

adopt a program similar to the National Highway Traffic Safety

Administration\'s (NHTSA\'s) Auto Safety Hotline, which has four

representatives who speak Spanish and are available during normal

hotline business hours (Mon.-Fri., 8 a.m.-10 p.m. eastern time).\\13\\

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\13\\ The evening hours permit people from the West Coast (where

a significant number of LEP persons reside) to call after work,

providing an option for instructions in Spanish, a separate queue,

and Spanish-speaking operators.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Signage and Other Outreach. Recipients have provided information

about services, benefits, eligibility requirements, and the

availability of free language assistance, in appropriate languages by

\(a\) posting signs and placards with this information in public places

such as grocery stores, bus shelters, and subway stations; (b) putting

notices in print media and on radio and television stations that serve

LEP groups or broadcasting in languages other than English;\\14\\ (c)

airing videos and public service announcements for non-English-speaking

residents; (d) placing flyers and signs in the offices of community-

based organizations that serve large populations of LEP persons; (e)

distributing information at places of worship, ethnic shopping areas,

and other gathering places for LEP groups; (f) using posters with

appropriate languages designed to reach potential beneficiaries; and

\(g\) developing pictures, images, figures, or icons that could be

understandable alternatives to written words.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\14\\ Notifications should be delivered in advance of scheduled

meetings or events to allow time for persons to request

accommodation and participate.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

DOT agencies and recipients have implemented numerous language

access services:

DOT\'s Pipeline and Hazardous Materials Safety

Administration (formerly known as the Research and Special Programs

Administration), at 49 CFR Sec. Sec. 192.616 and 195.440, requires

pipeline officers to establish a program for effective reporting by the

public of gas pipeline emergencies to the operator or public officials,

also providing that the program must be conducted in English and other

common languages.\\15\\ We recommend that recipients consider the

appropriateness of such an approach to meet their individual service

provision needs.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\15\\ \`\`Each \[pipeline\] operator shall establish a continuing

educational program to enable customers, the public, appropriate

government organizations, and persons engaged in excavation related

activities to recognize a gas pipeline emergency for the purpose of

reporting it to the operator or the appropriate public officials.

The program and the media used should be as comprehensive as

necessary to reach all areas in which the operator transports gas.

The program must be conducted in English and in other languages

commonly understood by a significant number and concentration of the

non-English speaking population in the operator\'s area.\'\' 49 CFR

Sec. 192.616. Section 195.440 of title 49, Code of Federal

Regulations, imposes similar requirements in the case of hazardous

liquid or carbon dioxide pipeline emergencies.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

DOT\'s National Highway Traffic Safety Administration

(NHTSA) has translated the National Standardized Child Passenger Safety

Training Program curriculum into Spanish. The course, designed to help

communities work with parents and caregivers on the proper installation

of child safety seats, has been pilot tested and is scheduled to be

available to the public by early 2006 through many national Latino

organizations and State Highway Safety Offices.

DOT\'s Federal Motor Carrier Safety Administration (FMCSA)

division offices in California, Arizona, New Mexico, Texas, and Puerto

Rico employ personnel conversant in Spanish to communicate the agency\'s

critical safety regulations.

The Del Rio, Texas, Police Department implemented the El

Protector program in Del Rio and developed public service broadcasts in

Spanish about traffic safety issues such as loading and unloading

school buses, drinking and driving, and pedestrian safety.

Emergency Medical Services (EMS) staff in Los Angeles

reported that their system is equipped to receive calls in more than

150 languages, although Spanish is the most frequent language used by

911 callers who do not speak English.

District of Columbia DMV information, forms, and support

material are available in German, Spanish, French, Russian, Dutch, and

Portuguese and can be downloaded from the division\'s Web site. The DC

DMV also provides a \`\`City Services Guide\'\' in Chinese, Korean,

Spanish, and Vietnamese. DC\'s \`\`Click It or Ticket\'\' program
material

and information on child safety seat loaner programs and fitting

station locations are available in Spanish.

The New Jersey Department of Motor Vehicles administers

driver\'s license tests in more than 15 languages, including Arabic,

French, Greek, Korean, Portuguese, and Turkish.\\16\\

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\16\\ DOT recommends that state agencies share such information,

to avoid the necessity of each agency performing every translation.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

In North Dakota, while the Traffic Safety Office

acknowledges a limited minority population requiring assistance with

translation, the Driver Licensing Unit offers the option of an oral

test in Spanish.

The Iowa Department of Transportation (IDOT) provides a

Spanish version of the Commercial

\[\[Page 74099\]\]

Driver\'s License knowledge test using a touch screen computer, and

study guides of the Iowa Driver\'s Manual in Albanian, Bosnian, Russian,

Vietnamese, and Korean. IDOT established a liaison with a local

community college to provide education for Bosnian refugees concerning

the Commercial Motor Vehicle driving course.\\17\\

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\17\\ DOT especially recommends the idea of working with local

community colleges to educate the LEP community in transportation

matters.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

The Wisconsin DOT created a 3rd grade level study guide,

the Motorist Study Manual Easy Reader, which was translated by the

Janesville Literacy Council into Spanish. Wisconsin DOT also provides

the regular 6th grade level version of the Reader in English, Spanish,

and Hmong; a Motorcycle Study Manual in English and Spanish; and a CDL

(Commercial Driver\'s License) Study Manual in English and Spanish. In

addition, Knowledge and Highway Sign Tests are written in 13 languages

other than English, recorded on audiocassette tapes in English and

Spanish, or orally interpreted by bilingual staffers obtained from a

roster of Wisconsin DOT employees who speak, read, or write foreign

languages.

The Idaho Office of Traffic and Highway Safety implemented

a Spanish-language safety belt media campaign to educate its Hispanic

community on the statewide \`\`Click It, Don\'t Risk It!\'\' program to

boost seat belt use. Information appears in Unido, Idaho\'s largest

Spanish-language newspaper, and warns all motorists to buckle up or

risk receiving a safety belt citation.

The New Mexico State Highway and Transportation

Department, with Federal Highway Administration (FHWA) support,

provides Spanish-language translations of its Right-of-Way Acquisition

and Relocation brochures and also employs bilingual right-of-way agents

to discuss project impacts in Spanish.

The State of Oregon developed a report on multilingual

services provided by state agencies. State agencies will use the final

document to enhance their existing programs, including expanding

communication efforts to serve and protect all Oregonians.

The Texas DOT utilizes bilingual employees in its permit

office to provide instruction and assistance to LEP Spanish-speaking

truck drivers when providing permits to route overweight trucks through

Texas. In its \`\`On the Job Training Supportive Services Program\'\'
Texas

DOT has used Spanish-language television to inform people who have

difficulty reading English of opportunities in the construction

industry.

When the Virginia DOT (VDOT) became aware that several

Disadvantaged Business Enterprise (DBE) firms were about to be removed

from construction projects in Northern Virginia because they required

certified concrete inspectors, and that they could not comply because

the concrete inspection test was only offered in English, it used

supportive services funding from the Federal Highway Administration to

translate the training manual and test material into Spanish. VDOT also

provides tutoring for the DBE firms. The Virginia State Police

maintains a written list of interpreters available statewide to

troopers through the Red Cross Language Bank, as well as universities

and local police departments.

The Colorado State Patrol produced safety brochures in

Spanish for farmers and ranchers. It has also printed brochures in

Spanish pertaining to regulatory requirements for trucking firms.

In preparation of its 20-year planning document, the

Transportation Concept Report, the California DOT (Caltrans) held a

public meeting titled \`\`Planning the Future of Highway 1\'\' in the

largely Hispanic city of Guadalupe, through which Highway 1 runs. The

meeting was broadcast on the local public access channel since many of

the Spanish-speaking residents potentially affected by Highway 1

projects rely on the channel to receive public affairs information.

Caltrans provided a Spanish-language interpreter during the meeting and

also made its Spanish-speaking public affairs officer available to meet

with participants individually.

During project planning for interstate improvements along

Interstate 710 in California, engineers presented \`\`good\'\'
alternatives

to the affected communities; however, the proposed highway expansion

would have removed low-income homes in communities that are 98% Spanish

speaking. To ensure that their concerns were heard, California

identified the affected communities and facilitated the establishment

of Community Advisory Committees that held bilingual workshops between

engineers and the public.

The Minnesota DOT authored a manual detailing its

requirements to provide access to all residents of Minnesota under

environmental justice standards, which included ideas such as

publishing notices in non-English newspapers, printing notices in

appropriate languages, and providing interpreters at public meetings.

In New Mexico, the Zuni Entrepreneurial Enterprises, Inc.

(ZEE) Public Transportation Program designed the Zuni JOBLINKS program

to develop, implement, and maintain a transportation system to link

Native Americans and other traditionally unserved/underserved persons

in the service area to needed vocational training and employment

opportunities. Outreach for the program included radio announcements

and posting of signs in English and Zuni that described ZEE\'s services

and provided ZEE\'s phone number.

Washington, DC\'s Metropolitan Area Transit Authority

(WMATA) publishes pocket guides regarding its system in French,

Spanish, German, and Japanese, and has a multilanguage website link.

In North Dakota, Souris Basin Transportation (SBT) started

using visual logos on the sides of the vehicles to help illiterate

passengers identify the bus on which they were riding. Although the

illiteracy rate has dropped among seniors, SBT kept the logos on its

vehicles for use by the growing LEP population and also added

volunteers who speak languages other than English (such as Spanish,

German, Norwegian, Swedish, and French) available by phone to drivers

and staff.

New York City Transit MetroCard vending machines are

located in every station and contain software that allows them to be

programmed in three languages in addition to English, based upon area

demographics. Currently, these machines are capable of providing

information in Spanish, French, French Creole, Russian, Chinese,

Japanese, Italian, Korean, Greek, and Polish.

The Metropolitan Atlanta Rapid Transit Authority (MARTA)

advertises upcoming service and fare changes in Spanish, Korean,

Vietnamese, and Chinese language newspapers. MARTA also produces a

bilingual (Spanish/English) service modifications booklet.

The Fort-Worth Transportation Authority communicates

information about service and fare changes in Spanish and English. It

recruits Spanish-speaking customer service representatives and bus

operators and has a community outreach liaison who is bilingual. The

transit provider also provides a Spanish-language interpreter at all

public meetings.

The Salt Lake City International Airport maintains a list

of 35 bilingual and multilingual employees who speak one of 19

languages (including three dialects of Chinese) and their contact

information. The list is published in the

\[\[Page 74100\]\]

Airport Information Handbook and provided to all airport employees. The

airport also contracts with a telephonic interpretation service to

provide on-demand telephone interpretation services to beneficiaries.

The Port of Seattle has 16 \`\`Pathfinders\'\' on staff who

act as guides and information sources throughout the Seattle Tacoma

International Airport. A key selection criterion for Pathfinders is

multilingual ability. The Pathfinders collectively speak 15 languages

and are often called on to act as interpreters for travelers who do not

speak English. Pathfinders greet all international flights and are

assigned to do so based on language skills.

Seattle Tacoma International Airport\'s trains carry

announcements in English, Japanese, and Korean. The Port of Seattle

contributed \$5,000 to the creation of the City of Tukwila\'s
\`\`Newcomers

Guide,\'\' which is published in six languages and includes information

about the airport and Airport Jobs, a referral service for employment

at the airport.

The following is a sample notice that would be useful for

recipients to add to the publications or signs for their programs,

services, or activities, in order to notify LEP individuals of the

availability of materials and services in other languages.

Sample Notice of Availability of Materials and Services

FOR FURTHER INFORMATION CONTACT: For hearing-impaired individuals or

non-English-speaking attendees wishing to arrange for a sign language

or foreign language interpreter, please call or fax \[name\] of

\[organization\] at Phone: xxx-yyy-zzzz, TTY: xxx-yyy-zzzz, or Fax: xxx-

yyy-zzzz.\'\' \\18\\

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\\18\\ If there is a known and substantial LEP population that may

be served by the program discussed in the notice, the notice should

be in the appropriate non-English language.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Appendix A to DOT Guidance

DOT\'s Title VI regulation (49 CFR part 21) states the following, in

relevant part:

Sec. 21.5 Discrimination prohibited.

\(a\) General. No person in the United States shall, on the grounds

of race, color, or national origin be excluded from participation in,

be denied the benefits of, or be otherwise subjected to discrimination

under, any program to which this part applies.

\(b\) Specific discriminatory actions prohibited:

\(1\) A recipient under any program to which this part applies may

not, directly or through contractual or other arrangements, on the

grounds of race, color, or national origin.

\(i\) Deny a person any service, financial aid, or other benefit

provided under the program;

\(ii\) Provide any service, financial aid, or other benefit to a

person which is different, or is provided in a different manner, from

that provided to others under the program;

\(iii\) Subject a person to segregation or separate treatment in any

matter related to his receipt of any service, financial aid, or other

benefit under the program;

\(iv\) Restrict a person in any way in the enjoyment of any advantage

or privilege enjoyed by others receiving any service, financial aid, or

other benefit under the program;

\(vi\) Deny a person an opportunity to participate in the program

through the provision of services or otherwise or afford him an

opportunity to do so which is different from that afforded others under

the program; or

\(vii\) Deny a person the opportunity to participate as a member of a

planning, advisory, or similar body which is an integral part of the

program.

\(2\) A recipient, in determining the types of services, financial

aid, or other benefits, or facilities which will be provided under any

such program, or the class of person to whom, or the situations in

which, such services, financial aid, other benefits, or facilities will

be provided under any such program, or the class of persons to be

afforded an opportunity to participate in any such program; may not,

directly or through contractual or other arrangements, utilize criteria

or methods of administration which have the effect of subjecting

persons to discrimination because of their race, color, or national

origin, or have the effect of defeating or substantially impairing

accomplishment of the objectives of the program with respect to

individuals of a particular race, color, or national origin.

\* \* \* \* \*

\(5\) The enumeration of specific forms of prohibited discrimination

in this paragraph does not limit the generality of the prohibition in

paragraph (a) of this section.

\* \* \* \* \*

\(7\) This part does not prohibit the consideration of race, color,

or national origin if the purpose and effect are to remove or overcome

the consequences of practices or impediments which have restricted the

availability of, or participation in, the program or activity receiving

Federal financial assistance, on the grounds of race, color, or

national origin.

\[FR Doc. 05-23972 Filed 12-13-05; 8:45 am\]

BILLING CODE 4910-62-P