Policy Guidance Concerning Recipients' Responsibilities to Limited English Proficient (LEP) Persons, 74087-74100 [05-23972]

Agencies

• Office of the Secretary
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 70, Number 239 (Wednesday, December 14, 2005)]
[Notices]
[Pages 74087-74100]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-23972]


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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.

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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: https://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 https://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 https://dms.dot.gov.
    Docket: You may view the public docket through the Internet at 
https://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: 
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.
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    \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.
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    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.''
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    \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: https://
factfinder.census.gov/servlet/DTTable?_bm=y&-geo_id=D&-ds--
name=D&---lang=en&-redoLog=false&-mt--name=DSS--2001--EST--G2000--
P035.
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    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\
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    \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.
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    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.
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    \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.
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    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, https://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\
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    \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.

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[[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\
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    \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.
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     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\
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    \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.
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(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\
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    \8\ Small recipients with limited resources may find that 
entering into a bulk telephonic interpretation service contract will 
prove cost effective.
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     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.
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    \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.
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     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 tha