[Federal Register Volume 70, Number 239 (Wednesday, December 14, 2005)]
[Notices]
[Pages 74087-74100]
From the Federal Register Online via the Government Publishing 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: 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://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://dms.dot.gov.
Docket: You may view the public docket through the Internet at
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:
[email protected]; or Bonnie Angermann, Attorney-Advisor, Office of
General Law, Office of the General Counsel, Telephone: (202) 366-9166,
E-mail: [email protected]. 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: 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.
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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, 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\
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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 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.''
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\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.
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\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.
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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://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\
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\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://www.ssa.gov/multilanguage/langlist1.htm. DOT recipients could, for example,
modify these signs for use in programs, activities, and services.
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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\
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\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.
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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.
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\14\ Notifications should be delivered in advance of scheduled
meetings or events to allow time for persons to request
accommodation and participate.
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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.
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\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.
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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\
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\16\ DOT recommends that state agencies share such information,
to avoid the necessity of each agency performing every translation.
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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\
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\17\ DOT especially recommends the idea of working with local
community colleges to educate the LEP community in transportation
matters.
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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\
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\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.
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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