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Requirements for All Programs    Next Page

The discussions that follow have been developed to address the primary areas of concern regarding compliance with Title VI requirements. These discussions should be considered at a minimum by all Department programs.

The Emphasis Programs and Other Services Programs must integrate them into their processes/procedures, activities and services. Program specific considerations are discussed in both the “Emphasis Programs”
and “Other Services” requirements sections by specific program.

Compliance Reviews 23 CFR 200.9 (4) (b) (5), (6), (7); 23 CFR 200.11; 49 CFR 21.9

The Title VI Program is required to conduct compliance reviews of Department programs and its subrecipients. The purpose of the compliance review process is to determine if the Department’s Emphasis Programs and Other Services Programs and subrecipients are meeting Title VI compliance requirements.

A compliance review schedule will be posted in the fall of each year on the Title VI Program website that is scheduled for completion during summer 2003, or contact the Title VI Coordinator and request a copy of the schedule. Programs scheduled for review will be notified in writing at least 60 days in advance to coordinate a date to ensure the attendance of the Division Chief or District Director and key personnel. The notice of review (NOR) will include a compliance review instrument containing questions that the programs are required to answer in writing and return 30 days prior to the scheduled on-site review.

The Title VI Program staff will review the program response during the desk review process in advance of the on-site review. The on-site review will be conducted over a five-day period and consist of an entrance conference, review of files and documentation, interviews and an exit conference.

A Determination of Findings (DOF) will be issued within a 30-day period following the exit conference. A copy of the findings is provided to the Department Director, Chief Deputy Director, Civil Rights Deputy Director and to the appropriate executive staff of the program being reviewed, FHWA and FTA. No action on the part of the program is required on findings of compliance, unless a condition of compliance is specified. However, programs found out of compliance are required to develop a Corrective Action Plan (CAP) to overcome any deficiencies noted in the DOF within a period not to exceed 90 days. If it is determined that the matter cannot be resolved voluntarily, by informal means, action will be taken to effectuate compliance. See the Corrective Action section that follows.

District compliance reviews will follow the process described above with the exception of the on-site review period. District on-site review periods range from 5-10 days allowing time to include review of various program areas which may include planning, environmental, right of way, construction, contracting and research.

The Department will attend the FTA/FHWA Triennial review of Metropolitan Planning Organizations (MPO) and will assist the MPO in addressing any corrective actions or recommendations when appropriate. Local agencies compliance reviews will be conducted by the Division of Local Assistance with participation from the Title VI Program.

The Department will not conduct Title VI compliance reviews of universities and colleges. Universities and colleges are reviewed by the Department of Education for compliance with Title VI. Rather, the Department will specifically monitor contracts with universities and colleges for compliance with Title VI requirements.

Corrective Action 23 CFR 200.9 (4) (b) (15); 23 CFR 200.11; 49 CFR 21.13
Effective compliance of Title VI requires the Department to take prompt action to achieve voluntary compliance in all instances in which noncompliance is found.

If a Department program or subrecipient is found out of compliance or is believed to be out of compliance with Title VI, the Department has three potential remedies:
1. Resolution of the noncompliance status or potential noncompliance status by voluntary means by entering into an agreement which becomes a condition of assistance,
2. Where voluntary compliance efforts are unsuccessful, a refusal to grant or continue the assistance is initiated or;
3. Where voluntary compliance efforts are unsuccessful, referral of the violation to the FHWA, FTA or Federal Aviation Administration (FAA) who will forward to the U.S. Department of Justice for judicial consideration.

Efforts to secure voluntary compliance should be undertaken at the outset in every noncompliance situation and should be pursued through each enforcement action. Similarly, when an applicant fails to file an adequate assurance or apparently breaches its terms, notice should be promptly given on the nature of the noncompliance problem and identify possible consequences thereof and an immediate effort made to secure voluntary compliance.

Oversight monitoring of contract/grant/permit/loan subrecipients is critical to ensuring compliance with Title VI. This responsibility lies with each division and district. In the event, noncompliance cannot be corrected by voluntary means contact the Title VI Coordinator for assistance.

Consultation with Tribal Governments 23 CFR 450.104, 450.210 (5); EO 13175

The Federal Transportation Equity Act for the 21st Century (TEA-21) reinforced the Federal emphasis on Tribal Government participation in transportation planning that was initiated by the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). Federally recognized Tribes are familiar with the Federal “consultation” process that requires agencies to identify when the agency is formally consulting with the Tribe. Consultation means that one party confers with another identified party and, prior to taking action(s), considers that party’s views. 23 CFR 450.104

Tribal Government refers to the recognized government, or political unit of a Tribe.

Federal law requires intermodal planning for the geographic area, which includes the concerns of Tribal Governments having jurisdiction over lands within the boundaries of the State. Considerations should include:

· Transportation problems
· Land use
· Employment
· Economic development
· Environment
· Housing and Community development objectives. CFR 23, Section 450.206

Issues may also include Tribal Governments’ concerns about projects outside their jurisdiction that have the potential to impact their communities or cultural resources.


It is important to know with whom you are consulting and what methods are most effective:

· Each federally recognized Tribe is a sovereign government. Each Tribe has its own form of government and protocol for how business is to be conducted. There is no singular approach. Unless directed otherwise by the Tribe, correspondence should be addressed to the Tribal Chairperson.
· Tribal leaders are frequently participating on their own time and money. Agencies need to be cognizant of this and act accordingly; e.g., be flexible when and where meetings are scheduled. A meeting with the Tribal Government (most often referred to as the Tribal Council) is usually the most effective way to communicate.
· Providing enough time for the Tribal Government to respond is important. Most Tribal Governments meet once a month, and it may be difficult to put additional items on the agenda if not given enough time.

In 1999, the California Transportation Commission (CTC) adopted additionalGuidelines, which included:

Interests of Tribal Governments
The Regional Transportation Plan (RTP) process shall meet the Federal and State requirement to consult with and consider the interests of Indian Tribal Governments in the development of transportation plans and programs, including funding and programming of transportation projects accessing tribal lands through State and local transportation programs.

The Commission adopted a policy requiring Regional Transportation Planning Agencies (RTPA) to address—in a current RTP—the requirements in the RTP Guidelines as a condition of accepting a Regional Transportation Improvement Program (RTIP) for inclusion in the State Transportation Improvement Program (STIP). Therefore, it is important that the RTP reflect not only the method used to consult with Tribes, but to identify what the tribal interests are and how they have been considered, including funding projects that address these interests.

See the Native American appendix for additional information regarding the requirements that govern the funding and planning of transposition projects related to issues and concerns of federally recognized Tribal Governments.

Contracts/Grants/Permits/Loans Assurances
23 CFR 200.9, 633; 49 CFR 21.7; Non Discrimination Agreement (NDA)

As a recipient of Federal assistance, the California Department of Transportation executed a Nondiscrimination Agreement (See Assurances/Agreements appendix) with the FHWA. The Department agreed that each program activity and facility will be conducted and operated in compliance with the nondiscriminatory requirements imposed by or pursuant
to this agreement. These assurances are given for the purpose of obtaining any and all Federal grants, loans, contracts, property, discounts or other Federal financial assistance, and it is binding on other recipients, sub-grantees, contractors, subcontractors, transferees, successors in interest and other participants in the transportation programs emphasized by FHWA.

In the Nondiscrimination Agreement with the FHWA, the Department pledged that it shall:

· Comply with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d - 2000d-4 (the Act),
· Comply with the CFR Title 49, Subtitle A, Part 21 requirements (the Regulations),
· • Comply with other pertinent directives
· Insert the following notification in all solicitations for bids for work or material subject to the regulations and made in connection with Department programs and in adapted form all proposals for negotiated agreements:

“The recipient, in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252,42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation issued pursuant to such Act, hereby notifies all bidders that it will affirmatively ensure that in any contract entered into pursuant to this advertisement, disadvantaged business enterprises as defined at 49 CFR Part 26 will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, national origin, sex, handicap/disabled, age in consideration for an award.”
· Insert the clauses contained in “Appendix A” of the Assurances in every contract subject to the Act and the Regulations.
· When the United States conveys land or property to the Department, the clauses in “Appendix B” of the Assurances must be included.
· When the Department issues licenses, leases, permits or any similar instruments; e.g., Tenancy Agreements; the clauses in “Appendix C” of the Assurances must be included in those instruments.

The Appendices referred to above are required as a condition for receiving Federal financial assistance. These Appendices are made part of the contract/grant/permit/loan agreement and enjoins the applicant from taking specified actions, requires that specified remedial actions be taken and/or provides for other appropriate relief. The terms of the agreement become effective once the assistance is granted and are attached as a special condition to the assistance agreement.

Department programs that administer grants must establish procedures for pre-grant and post-grant approval reviews of applicants for compliance with Title VI including a mechanism to check for prior Title VI violations. The Department will monitor contracts for compliance with Title VI requirements.

The diagram below illustrates the flow of responsibility for recipients of Federal financial assistance. The same responsibility applies whether the assistance is through a contract, grant, permit or loans.

Refer to the Assurances/Agreements appendix for additional information and related language requirements.

Self Monitoring 23 CFR 200.9 (4) (b) (1); NDA
Monitoring requires tracking, regulating and observing processes. Self monitoring requires programs to track, regulate and observe their processes to ensure compliance with Title VI.

Documentation is a critical element of the compliance monitoring process. It is relied upon to provide evidence, proof and support of historical facts during monitoring and compliance review activities. It is recommended that policy decisions, procedures, analysis, actions and outcomes be documented as part of your daily routine.

The questions below address process expectations. Affirmative responses to these questions are good indicators that mechanisms for preventing discrimination are in place and it is likely that compliance will be/is met.

General
1. What is your process for advertising Public Notice that your program is an equal opportunity program and/or that Federal law prohibits discrimination? Refer to the appendix on this subject.
2. What is the process followed when a new policy directive is issued?
3. Is the PAA, District Title VI Liaison and/or Title VI Coordinator involved in policy development?
4. What are the procedures for handling a Title VI complaint?
5. How are your customers made aware of their right to file a Title VI complaint?
6. How are Title VI complaint procedures disseminated to program personnel?
7. When awarding a contract, grant, loan or permit, what mechanism is used to ensure that the contractor or applicant does not have any unresolved Title VI violations?
8. What process has been established to monitor data collection and contracts and grants language requirements?

Program Area Administrator and District Title VI Liaison

1. What role does the PAA or District Title VI Liaisons play in the Title VI Program in general and in the conduct of compliance reviews?
2. How does the PAA or District Title VI Liaison assist program area personnel in
3. obtaining public involvement?
4. Has Headquarters or district personnel attended MPO planning meetings?
5. Have the PAA, District Title VI Liaison, key program personnel attended public meetings or hearings held for projects? Is it documented?
6. What role does the PAA, District Title VI Liaison and/or key program personnel play to facilitate participation of historically under represented groups and accessibility to the location of the meetings or hearings?

Data Collection and Records
Data collection is necessary to analyze whether disparate impacts occur and provide documentation of actions taken and why. The disparate impacts are relevant to the actions of the recipient and the beneficiary.
1. What records and reports are maintained that specifically reflect compliance with Title VI?
2. What data (race, color, national origin, language considerations, sex, disability and age) does the recipient maintain that reflects the extent to which members of minority groups are beneficiaries of your program?
3. Who is responsible for developing, maintaining, monitoring and reporting this data?
4. How is this data used?

Complaint Handling 23 CFR 200.9 (4) (b) (3); 49 CFR 21.11 (b); NDA
The following discussion provides a summary of the Department’s Title VI and related statutes complaint handling process. Refer to the Complaint Handling appendix for details regarding the Department’s Title VI and related statutes discrimination complaint process. Any person who believes that he/she has been excluded from participation in, denied benefits or services of any program or activity administered by the Department or its subrecipients, consultants or contractors on the basis of race, color, national origin, sex, disability or age may file a complaint of discrimination under Title VI and related statutes. Under no circumstance, is the complainant discouraged from filing a complaint. The Discrimination Complaint Investigation Unit (DCIU) is the Department authority designated to determine whether “prima facie” is established.

Title VI disallows intentional disparate treatment and disparate impacts/effects. A claim of intentional discrimination/disparate treatment is an allegation that similarly situated persons are treated differently because of their race, color, national origin, gender, disability or age. To prove intentional discrimination, one must show that “a challenged action was motivated by an intent to discriminate.” This requires a showing that the decision maker was not only aware of the complainant’s race, color, national origin, gender, disability or age; but that the recipient acted, at least in part, because of the complainant’s race, color, national origin, gender, disability or age.

Disparate Impact/Effects cases involve either “individual” or “class” discrimination (or both). For example, if two organizations apply for a grant that is Federally funded and one is rejected because the decision maker dislikes membership of the rejected applicant’s race, this constitutes disparate treatment. If the decision maker repeatedly rejects applicants representing a particular race, this may indicate class discrimination or a “pattern and practice” of discriminatory conduct by the recipient.

All Title VI and related statutes discrimination complaints must be forwarded to the Department’s DCIU for investigation and follow-up. The DCIU is responsible for first establishing prima facie; i.e., tying the complainant’s reason for his/her complaint to the discriminatory action or basis; then conducting an objective and impartial investigation, collecting factual information and preparing a fact-finding report based on the information obtained from the investigation.

All Title VI and related statutes complaints are considered to be formal, as there is no Title VI informal process. Complaints must: 1) be in writing and signed by the complainant, 2) describe the event(s) leading to the discriminatory action, 3) include allegations based on issues involving race, color, national origin, sex, disability or age; 4) be filed no later than 180 days after:

· The date of the alleged act of discrimination; or
· The date when the person(s) became aware of the alleged discrimination;
· Where there has been a continuing course of conduct, the date on which the conduct was discontinued.

The DCIU reviews the complaints upon receipt to ensure that all relevant information is provided, the complaint is timely and meets jurisdiction. All Title VI complaints will be investigated unless:

· The complaint is withdrawn.
· The complainant fails to provide required information after numerous requests.
· The complaint is not filed timely. Any issues that do not involve discrimination or are not based on a protected basis will be directed to the appropriate entity.

After a valid complaint is received by the DCIU, the complainant is sent a letter acknowledging receipt of the complaint, the name of the investigator and is provided his/her rights under Title VI and related statutes. The investigator prepares and submits an investigative report and supporting documentation for review within 40 days after receiving the complaint to the Chief of the Office of Equal Opportunity. The complainant can expect to receive a determination of finding within a 60-day period.

For additional information regarding the complaint process, refer to the appendix on this subject.

Annual Report 23 CFR 200.9 (4) (b) (10)-(11); 49 CFR 21.9; NDA
Annually, the Title VI Program submits to the FHWA an accomplishment report detailing its accomplishments and each emphasis program’s accomplishments for the past year and goals for the upcoming year. The reporting period is October 1 through September 30, which is the Federal Fiscal Year. Programs are contacted in writing early in August to provide their respective programs accomplishments and goals. The information supplied is compiled and submitted to the FHWA by October 1st of each year. Performance measures need to be identified.

For additional information on report format, refer to the sample annual report format provided in the appendix.

Assistive Services Americans with Disabilities Act 1990 (ADA);
Restoration Act of 1984
In an effort to provide equal access to communications and meet the disability needs of its employees and the public, Department programs must advertise one of the following two statements on all publications and/or communications, as appropriate, that assistive services and alternate formats are available upon request.

For individuals with sensory disabilities, this document is available in Braille, large print, on audiocassette or computer disk. To obtain a copy in one of these alternate formats, please call or write to the Department of Transportation, (identify the appropriate division name, address and phone number). For individuals with disabilities, assistive services such as sign language interpreting, real-time captioning, note-takers, reading or writing assistance or training/meeting materials in Braille, large print, on audiocassette or computer disk can be provided upon request. To obtain such services or copies in one of these alternate formats, make the request a minimum of 10 working days prior to the event.

(Name of contact person)
(Division Name)
(Mailing Address)
(Phone number) Voice
(Phone number) TTY - If your division does not have TTY, identify the California Relay System and their telephone number 1 (800) 735-2922.

Contact the Department’s Civil Rights, Office of Equal Opportunity at (916) 324-0988 Voice or (916) 324-2252 TTY for technical assistance or to obtain a California Assistive Service Resources List.

Limited English Proficiency EO 13166; NDA
Limited English Proficiency is a term used to describe individuals who are not proficient in the English language. California is home to millions of individuals from different cultures and backgrounds. A significant number are limited English proficient (LEP). An example of this is identified by the California Department of Education language census, which reveals there are 5.7 million students enrolled in public schools K-12, of which 25% or 1.4 million are LEP. At a national level, a total of 3.4 million LEP students are enrolled in public schools. California represents 42% of K-12 LEP students enrolled in public schools nationally.

Authority:
Executive Order (EO) 13166 - Improving Access to Services for Persons With
Limited English Proficiency, August 2000 is directed at implementing the
protections afforded by Title VI of the Civil Rights Act of 1964 and related
regulations. Accordingly, it prohibits recipients of Federal financial assistance
from discriminating based on national origin by failing to provide meaningful
access to services to individuals who are LEP. This protection requires that LEP
persons be provided an equal opportunity to benefit from or have access to
services that are normally provided in English.

How does LEP affect the Department of Transportation?
There are two laws that require the Department to provide LEP persons with meaningful access to programs, activities and services. The following matrix illustrates these laws/policy and the considerations.

Title VI of the Civil Rights Act of 1964 Limited English Proficiency Executive Order 13166 Dymally-Alatorre Bilingual Services Act
· Federal law · Federal policy · State law
· Enacted in 1964 · Signed August 2000 · Enacted in 1973
· Considers all persons · Considers eligible population · Considers the current customer base
· Contains monitoring and oversight compliance review requirements · Contains monitoring and oversight requirements · Lacks monitoring and evaluation mechanisms
· Factor criteria is required, no numerical or percentage thresholds · Factor criteria is required, no numerical or percentage thresholds · Threshold-substantial number and 5% or more customer base
· Provides protection on the basis of race, color, and national origin · Provides protection on the basis of national origin · Provides the right for non-English persons to communicate with government

· Focuses on eliminating discrimination in federally funded programs · Focuses on providing LEP persons with meaningful access to services using factor criteria · Focuses on providing alternate language service at public counters
· Annual Accomplishment and Upcoming Goals Report to FHWA · Annual Accomplishment and Upcoming Goals Report to FHWA · Requires a biennial language survey to State Personnel Board



Division/District Responsibility
The EO directs recipients of Federal financial assistance to take reasonable steps to provide LEP individuals with meaningful access to their programs, activities and services.

The following chart, although not exhaustive, illustrates divisions/districts and Title VI Program activities and responsibilities relative to LEP services.

Activity Responsibility
District/Division Title VI Program
· Assessing and addressing the needs of eligible persons X
· Taking reasonable steps or ensuring that responsible steps are taken to ensure meaningful access x
· Developing and implementing monitoring control mechanisms to ensure delivery of service and ongoing compliance X
· Compliance, monitoring, and oversight X X
· Providing technical assistance and guidance X
· Reporting accomplishments and goals x

The key to providing meaningful access for LEP persons is to ensure effective communication exists between the service provider and the LEP person. To accomplish effective communication, the following actions and discussions are considered appropriate at a division/district level:

1. Perform a needs assessment.
2. Provide for oral language assistance.
3. Notify LEP customers of the availability of language assistance services.
4. Translate vital documents in languages other than English.
5. Train staff.
6. Develop written procedures.
7. Monitor and evaluate access to language assistance.

1. Perform a needs assessment
Each division/district is to continuously assess language assistance needs of the population to be served by identifying the following:

· Languages likely to be encountered and number of LEP persons in the eligible population likely to be directly affected by its program.
· Public contact where languages assistance is needed..
· Resources needed to provide effective language assistance, including location, availability and arrangements necessary for timely use.

2. Provide for oral language assistance
Providing LEP persons with oral language assistance at public service counters or when telephone contact is appropriate. Such assistance may take the form of bilingual staff, contracting with an outside interpreter service or the use of voluntary community interpreters who are skilled and competent in interpreting.

Employment of bilingual staff in divisions and programs is recommended,
when feasible, where the percentage of LEP customers or potential customers is statistically significant or where the frequency of contact with such persons will provide for efficient and effective communication. A decision to employ bilingual staff should be based on a needs assessment with due consideration given to budget constraints and in accordance with department policy. The Division of Human Resources can provide additional information on bilingual staff recruitment, bilingual pay procedures, department positions requiring bilingual skills and names and locations of staff that speak an alternative language and language spoken.

3. Notify LEP customers of availability of language assistance services
LEP persons have the right to language assistance at no cost to them in their spoken language. Divisions/districts are responsible for informing the public of this right. Language identification cards or posting signs in public areas are methods that can be used to provide notice of the service.

4. Translation of vital documents in languages other than English
It is appropriate to have written materials that are routinely provided in English to applicants, customers and the general public translated into languages that are regularly encountered. The translation of vital documents into languages other than English is particularly important where a significant number or percentage of the customers served and/or eligible to be served have limited English proficiency. Written materials include electronic documents and web-sites.

Vital Documents” are documents that convey information that critically affects the ability of the recipient/customer to make decisions about his/or her participation in the program. Examples of vital documents include but are not limited to: applications, public notices, consent forms, letters containing important information regarding participation in a program, eligibility rules, notices pertaining to the reduction, denial or termination of services or benefits, right to appeal, notices advising of the availability of language assistance and outreach and community education materials. It is recommended that divisions/districts develop criteria for deciding which documents are vital thereby subject to translation.
Translating documents for LEP to a fourth (4th) grade literacy level ensures the targeted audience understands the information. Community based organizations or focus groups can assist with testing translations for language and literacy level appropriateness.

5. Train Staff
Training staff on policies and procedures of language assistance and how to determine whether a customer needs language assistance services is essential to bridging the gap between policies and actual practices. Training should include how to obtain language assistance services and communication with interpreters and translators. Because LEP persons can file a complaint on the basis of national origin, staff should be trained on how to properly handle a Title VI complaint. Refer to the Complaint Handling appendix.

6. Develop written procedures
To implement a successful language assistance program, provide guidance to employees through written procedures that address the following:

a. Identifying and assessing language needs
b. Oral language assistance; including vendor charges for services, procedures on how to access and to request Department translation assistance
c. Written translation of materials and publications
d. Oral and written notification of the availability of language assistance
e. Staff training on language service provision
f. Monitoring access to language assistance

7. Monitor and evaluate access to language assistance
Monitoring and evaluating accessibility and quality of language assistance needs of LEP persons ensures that LEP persons can meaningfully access programs and activities and is the responsibility of the divisions/districts. At a minimum, divisions/districts should conduct an annual assessment to determine: the current LEP composition of its service area; the current communication needs of LEP persons; whether existing assistance meets LEP needs; whether staff is knowledgeable about policies and procedures and how to implement them; and whether sources of and arrangements for assistance are still current and viable. One mechanism for monitoring is to seek feedback from customers and advocates.

Data collection and record keeping are key to an effective monitoring and compliance system. Analysis of data collected provides an overview of how services are provided. Data collection mechanisms include the following, however keep in mind that when collecting data on race or ethnicity, this information is voluntary and should not include personal information such as name, address or phone number:

· Race of LEP person
· Ethnicity of LEP person
· Primary language of the population in the program service area
· Primary language of customers served
· Data upon which the division based language needs assessment
· Number of LEP persons, by language group, who received language services

LEP Criteria
Following are factors for divisions/districts to consider when determining what reasonable steps to take to provide LEP individuals with meaningful access to its programs, activities and services.
· A factor in determining the reasonableness of a division’s/district’s efforts is the number or proportion of people who will be excluded from the program or activity absent efforts to remove language barriers.
· Consider the frequency of contact. Title VI obligations will differ for divisions/districts who have little contact with individuals who are LEP compared to a program/division who serves a large LEP population.
· Consider the available resources. A larger division/district with extensive resources may have to take greater steps than a smaller recipient with limited resources. On the premises translators may be appropriate in some circumstances, however, written translation, access to centralized interpreter language lines or other means, may be appropriate in other situations.
· Costs must be factored into this balancing test as part of the consideration of “resources available.”“Reasonable steps” may cease to be reasonable where the costs imposed substantially exceed the benefits in light of the factors outlined in the U.S. Department of Justice (DOJ), LEP Guidance.

Guidance/Resources
The guidance documents and their resource listed below are provided to assist divisions/districts with implementing LEP requirements and may be used in conjunction with this LEP Guidance Document.

· • The U.S. Department of Transportation Guidance to Recipients on Special
· Language Services to Limited English Proficient Beneficiaries, Federal Register/Vol. 66, No. 14/Monday, January 22, 2001.
(Refer to the Civil Rights Title VI Program Resource Directory, Tab 29.)
· The U.S. DOJ Policy Guidance, Enforcement of Title VI of the Civil Rights Act of 1964-National Origin Discrimination Against Persons With Limited English Proficiency, Federal Register/Vol. 65, No. 159/Wednesday, August 16, 2000
http://www.usdoj.gov/crt/cor/
· U.S. Department of Justice Clarifying Memorandum, dated October 26, 2001 http://www.usdoj.gov/crt/cor/lep/Oct26BackgroundQ&A.htm
· State Personnel Board
Bilingual Services Program (916) 651-9017
· United States Census 2000 Language Identification Flashcard
(Refer to sample in LEP DOT Guidance appendix.)

Technical Assistance
The Civil Rights Title VI Program is responsible for providing divisions/districts with technical assistance. This includes advising divisions/districts of LEP requirements and its implementation and assistance in developing individual program plans and mechanisms. The Office of Human Resources is responsible for providing policy direction regarding bilingual translation services.

Compliance and Enforcement
Deputy Directors and District Deputy Directors are responsible for ensuring that
meaningful services to LEP persons are provided in their respective divisions and districts. Additionally, designated PAA and District Title VI Liaisons will continuously monitor their respective divisions/districts to ensure LEP requirements are fulfilled and report annual accomplishments and upcoming goals relating to LEP activities to the Civil Rights Title VI Program.

In determining whether LEP compliance is met, the Title VI Program will assess whether the division’s/district’s procedures allow LEP persons to overcome language barriers and participate in a meaningful way in the division’s programs, activities and services. The division’s/district’s appropriate use of methods and options detailed in this LEP Guidance document including analysis and documentation will be viewed as evidence of intent to comply with LEP requirements and Title VI of the Civil Rights Act of 1964.

Data Collection 23 CFR 200.9 (4) (b) (4), 771.111 (h) (ii); 28 CFR 42.406;
49 CFR 21.9, 450; NDA; Urban Mass Transportation Administration (UMTA) Circular 4702.1
The diversity of California’s population reflects change and should be updated with the latest Federal Census figures. It is critically important that the Department and its subrecipients be innovative in engaging historically under represented public populations and businesses in the planning, project development and maintenance processes. According to the California Department of Finance in 2001, the race/ethnic mix of California is 49 percent White; 31 percent Hispanic; 12 percent Asian and Pacific Islanders; 7 percent Black and one percent American Indian. In the fall of 2001, Census 2000 reflected that California crossed the threshold of no race/ethnic majority.

The Nondiscrimination Agreement between the FHWA Division Administrator and the California Department of Transportation obligates the Department to collect statistical data (race, color, national origin, sex, disability and age) of participation in and beneficiaries of the program and activities conducted by the Recipient.

Data collection is key to ensuring that transportation programs, services, facilities and projects effectively meet the needs of “all persons” without discrimination; i.e., disproportionately benefiting or harming one group over another is a violation of Title VI. T imely and accurate data allow for better decision making and provide support and defensibility to the decisions made.

Why collect data:
The Code of Federal Regulations 23, Ch.1, Part 200.9 (b. State Actions) (4) requires the State “develop procedures for the collection of statistical data of participants in and beneficiaries of State highway programs; i.e., relocates, impacted citizens and affected communities.” The Nondiscrimination Agreement between the FHWA Division Administrator and the Department Director assures the Department will collect statistical data (race, color, national origin, sex, disability and age) on participation in and beneficiaries of the program and activities conducted by the Department. In addition, data collection provides measurable evidence of the Department’s performance as it relates to Title VI for annual reports to the FHWA and the Department’s efforts to ensure compliance with Title VI.

Objective data is necessary to identify:
1. Transportation needs of all persons within boundaries of plans or projects.
2. Impacts and persons impacted.
3. Persons to include in the decision making process.
4. “Champion(s)” for various modes and transportation options.
5. Strategies to address impacts.
6. Alternatives to modes and locations and types of facilities (transit, light rail, van and carpooling, HOV lanes, etc.).
7. Priorities for investments.
8. Sources for financing investments.
9. Strategies to disseminate information.

Based on Title VI implementing regulations, each division/district is required to:

1. Provide for the collection of data and information to permit effective Enforcement of Title VI.
2. Collect data about beneficiaries.
3. Analyze the data and information collected.
4. Eliminate discrimination when it is found.
5. Take affirmative measures to ensure nondiscrimination.

What types of data and analysis:
As the Nondiscrimination Agreement stipulates, data with regard to race, color, national origin, sex, disability and age is collected. See the LEP section for detailed discussion on national origin data collection. Types of data helpful in determining compliance with Title VI and Environmental Justice (EJ) considerations:

Data: Analysis of:
Population: · Regional population and growth rates.· Regional ethnic composition.· Age distribution by race.· Number of households by income group.· Median household by income.· Percent of persons below poverty line.· Percent of persons by age group with mobility limitations.· Percent of elderly persons.· Language(s) spoken.· Percent of disabled by types of disability.
Mode Choice: · Number of trips per capita.· Percent of households with no automobiles.· Percent by households by income groups using various modes of transportation (e.g., bus, carpool, commuter rail, urban rail, automobile).· Percent of persons by ethnic, gender and disability group using various modes of transportation (e.g., bus, carpool, commuter rail, urban rail, automobile).
Transportation System: · Transportation system congested.· Delay as a percentage of travel time.· Travel time.· Exposure to transportation hazards (environmental, safety, crime).· Access to jobs, churches, synagogues, mosques, medical care, schools, emergency services, grocery stores, family.
Employment: · Present and future location of jobs.· Present and future location of housing.· Present and future location of low-income communities.
Other: · Public investment per capita (Federal, State and local).

Analysis
Types of analysis to address compliance with Title VI:

1. Percent of benefits allocated to persons below poverty line vs. persons above poverty line.
2. Distribution of benefits (dollars, facilities, systems, projects) by groups and communities.
3. Impact of investments on income, race, gender, disability and age groups.
4. Allocation of funds by mode (highway, bus, commuter rail, urban rail).
5. Projected population increases versus planned facilities and types of facilities.
6. Language needs assessment.

Types of Performance Indicators

1. Mobility--Ease of movement of people and goods.
2. Accessibility—Access to opportunities (jobs, medical care, emergency services, family, shopping, entertainment).
3. Environment—Sustainable development and preservation of the existing system and the environment.
4. Cost-effectiveness—Maximized return on investment, direct as well as indirect costs associated with air pollution, congestion delay for individuals/businesses.
5. Reliability—System reliability. (Probability of arriving at destination or even making the trip.)
6. Safety—Physical design and operation of system (measured in accidents per person mile) also includes security related to criminal activities on highways as well as on transit systems.
7. Equity—Transportation investments and benefits are invested in a manner that meets the needs of all persons..
8. Customer Satisfaction—Increased ability to make trips, improved travel time, safety and security, improved access to system.
9. Livable Communities—Enhancement of living conditions for communities through transportation policies that provide multi-modal options including non-motorized modes.

Where to collect data:
Potential sources of data and analysis tools:

1. Census Data
2. School Districts
3. Transit Ridership Surveys
4. Management Systems (Pavement and Congestion)
5. Land Use Plans
6. Geographic Information Systems
7. Transportation Models
8. Metropolitan Planning Organization Committees (e.g., Citizen Advisory Committees)

How to collect data:
Each division/district develops a process to collect data for the following basis:
· RACE :
○ White
○ Asian
○ American Indian/Alaskan Native
○ Native Hawaiian/other Pacific Islander
○ Black or African American
○ Hispanic/Latino
· NATIONAL ORIGIN:
○ Born in United States, Puerto Rico, Guam, the U.S. Virgin Islands, Northern Marianas or
○ Born abroad of American parent/s;
○ Born outside United States, Puerto Rica, Guam, the U.S. Virgin Islands or Northern Marianas
· DOES THIS PERSON SPEAK A LANGUAGE OTHER THAN ENGLISH AT HOME?
○ Yes:
What is the language? ____________________________________
○ No
· SEX:
○ Male
○ Female
· DISABLED:
○ Yes
○ No
· AGE: _____________

How to present/allocate multiple race responses is addressed in Office Management and Budget Bulletin No. 00-02. (Refer to Data Collection appendix.)

All of the data collection considerations above apply directly to Department programs and when administering new or renewal contracts or applications for grants, permits or loans, an oversight perspective of your subrecipients must be recognized and applied.

For additional information regarding data collection, refer to the appendix on this subject.

In addition, the U.S. Department of Justice regulations, Coordination of Enforcement of Nondiscrimination in Federally Assisted Programs and examples of data and information which, to the extent necessary and appropriate for determining compliance with Title VI, include the following:

1. The manner in which services are or will be provided and the related data necessary for determining whether any persons are or will be denied such services on the basis of prohibited discrimination.
2. The population eligible to be served by race, color, national origin, sex, disability and age.
3. Data regarding covered employment, including use or planned use of bilingual public contact employees servicing beneficiaries of the program where necessary to permit effective participation by beneficiaries unable to speak or understand English.
4. The location of existing or proposed facilities connected with the program and related information adequate for determining whether the location has or will have the effect of unnecessarily denying access to any persons on the basis of prohibited discrimination.
5. The present or proposed membership, by race, color, national origin, sex, disability and age, in any planning or advisory body which is an integral part of the program.
6. Where location is involved, the requirements and steps used or proposed to guard against unnecessary impact on persons on the basis of race, color, national origin, sex, disability or age.

Additional data, such as demographic maps, the racial composition of affected neighborhoods or census data, may be necessary or appropriate for understanding information requirements listed above. This type of data is required, however, only to the extent that it is readily available or can be compiled with reasonable effort.

The Legal Office, Office of Equal Opportunity and the Title VI Program must be promptly notified of any lawsuit filed against your program and its subrecipients alleging discrimination on the basis of race, color, national origin, sex, disability or age.

For additional information regarding data collection, refer to the appendix on this subject.


 


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