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reviews and specific fact-based Title VI compli- analysis for the OAC project in time to meet ARRA
ance reviews.25 Issues include whether the agency funding deadlines.29
has conducted an adequate four-factor analysis of Several new FTA LEP deficiency findings are
LEP populations in its service area(s); whether the expected to be released later in 2010. In addition,
agency has developed and implemented a language an FTA civil rights task force was as of April 2010
assistance plan; whether the agency has a process examining all Title VI enforcement practices, includ-
for monitoring and updating its language assistance ing LEP activity. Although it is anticipated that
plan; whether safety and emergency information is additional guidance will be released based on the
consistently provided in required languages;26 and task force's conclusions, there is no public timeframe
whether notice of right to file Title VI complaints is for the release of such guidance.30
provided in required languages. LEP issues have Between 2002 and June 16, 2010, the FTA had
also arisen in the context of environmental reviews.27 finalized 27 Title VI compliance reviews, 19 of which
Issues include whether the agency has conducted covered LEP issues to some degree. Of those com-
adequate analysis to identify LEP populations pliance reviews, it appears only the review of the
within the project study area; whether outreach to Regional Transit District in Denver focused on LEP
LEP communities is sufficient to make those com- in particular, although the reviews of Houston Metro,
munities aware of the environmental process; and New York City Transit, and the Detroit DOT did
whether the agency has adequately sought out and note deficiencies related to LEP.31
considered the viewpoints of LEP populations within
the project study area. SUMMARY OF SURVEY QUESTIONNAIRE
There are indications that FTA enforcement of
Title VI issues may become more stringent.28 In Feb- The purpose of the survey questionnaire (included
ruary of 2010, the FTA rejected a plan by the Bay as Appendix A) was to determine whether there
Area Rapid Transit District (BART) to use funding have been LEP complaints not reported in cases or
from the American Recovery and Reinvestment Act described by the FTA in its published compliance
reviews. The questionnaire posed two screening ques-
(ARRA) for the Oakland Airport Connector (OAC)
tions concerning complaints: whether the agency had
project based on Title VI noncompliance, based on
received or been the subject of any complaints of any
BART's inability to rectify "well-founded" allega-
kind regarding either LEP compliance or environ-
tions that BART had not completed a service equity
mental justice based on the agency's treatment of LEP
populations (Question 4) and whether the agency had
received any objections to providing multilingual trip
25 Telephone interview with Amber Ontiveros (FTA's Office information (Question 5). Question 4 was intended to
of Civil Rights, lead on Title VI), Mar. 19, 2010. discern both complaints made directly to the transit
26 AB 611, introduced in the California Assembly in 2009, agency and complaints made to the FTA or other enti-
would require the California Emergency Management Agency ties about the transit agency. Only those agencies that
to take measures to help LEP population prepare for emergen- answered affirmatively to Questions 4 or 5 were asked
cies and understand information conveyed during emergencies. to complete Part II. Table 1 summarizes the aggregate
Bill Analysis, AB 611 (Fong)--as amended: April 15, 2009, responses to Questions 4 and 5.
http://info.sen.ca.gov/pub/09-10/bill/asm/ab_0601-0650/ab_
611_cfa_20090422_103934_asm_comm.html.
27 U.S. DOT Complaint No. 2008-0154 and 2008-0171 (alleg-
ing lack of compliance with 49 C.F.R. 21.5, EO 12898, and 29 FTA February 12, 2010, letter to Steve Heminger, Executive
EO 13166 by Metropolitan Transit Authority of Harris County Director, Metropolitan Transportation Commission, and Dorothy
in carrying out public involvement for the Draft Environmental Dugger, General Manager, BART, www.mtc.ca.gov/pdf/OAC_
Impact Statement for the North Corridor Light Rail Transit 2-12-10_memo.pdf.
project). 30 Telephone interview with Amber Ontiveros (FTA's Office of
28 Transit Breakthrough in Restoring Civil Rights: Title VI Com-
Civil Rights, lead on Title VI), May 5, 2010.
plaint by San Francisco Bay Area Coalition Has National 31 Title VI Compliance Reviews, www.fta.dot.gov/civilrights/
Implications, Oakland Local, February 23, 2010, oaklandlocal. title6/civil_rights_5463.html; Title VI Compliance Review
com/article/transit-breakthrough-restoring-civil-rights-title- of the Metropolitan Transit Authority of Harris County,
vi-complaint-san-francisco-bay-area-coalit. vvoice.vo.llnwd.net/e7/3676770.0.PDF.
5
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Table 1 Responses regarding LEP complaints Table 2 Responses regarding written compliance
and objections to multilingual trip information programs and report's usefulness (Questions 3 and 7)
(Questions 4 and 5)
No
No Yes No Response Other
Yes No Response Other
Written LEP 58 24 1 2 in progress
Complaints 3 81 0 1: "Nothing compliance
received/ reportable" program
subject of Report useful? 70 11 3 1 unsure
complaints
Objections 1 84 0 0
to providing
multilingual summarizes the aggregate responses to those two
trip questions.
information Although most of the agencies indicated that they
believed a report on LEP compliance issues would be
useful, only three specified issues that they would like
As reflected in Table 1, the survey responses to see addressed. One agency suggested that any such
indicate that there have been very few complaints, at report address LEP issues facing agencies that serve
least among the 84 responding agencies (listed in rural populations; the second agency asked that
Appendix B). Two agencies indicated that the FTA the report address case law defining the difference
had raised questions about their LEP compliance. Of between major and minor service changes as that dis-
these, one agency had had issues raised during FTA tinction is related to the requirement for conducting a
reviews, but without feedback as to specific defi- Title VI service analysis report; and the third agency
ciencies; one agency believes it may be subject to noted an operational problem related to providing
some LEP deficiency findings, but as those reviews paratransit service to an LEP individual whose men-
are not final, the agency was not prepared to pro- tal challenges were masked by the language barrier.
vide any descriptions of its issues. The former is In addition the questionnaire assessed agency
the agency that responded "nothing reportable" to the use of guidance by asking respondents to indicate
complaint question. Two agencies indicated that they whether they were either aware of or relied upon five
have had complaint activity. Of these, one agency sources of LEP guidance:
has had a complaint, but cannot discuss the issue
· EO 13166 (Improving Access to Services for
until the FTA provides a response; the other agency
Persons with Limited English Proficiency);
reported miscellaneous minor complaints that do not
· U.S. DOT guidance on LEP compliance
appear to have been escalated to the FTA. A fifth
(DOT LEP Guidance, Federal Register,
agency, although not responding affirmatively to
Vol. 70, No. 239, pp. 7408774100, Decem-
Question 4, indicated in its Part II response that the
ber 14, 2005);
FTA had documented LEP deficiencies. None of the
· The FTA's guidance on LEP compliance
agencies have been involved in any litigation related
(Chapter IV, Part 4 of Circular 4702.1A, Title
to LEP compliance. Only one of the agencies reported
VI and Title VI-Dependent Guidelines for
objections to providing multilingual trip information
FTA Recipients);
(i.e., objection to Spanish audio announcements on
· State or local requirements for providing
vehicles).
language access to LEP populations in the
In addition to requesting contact information
agency's service area; and
and basic information about the LEP population in the
· U.S. DOT Order 5610.2, U.S. DOT Order on
agency's service area (i.e., number of LEP persons,
Environmental Justice to Address Environ-
percentage of LEP out of total population, and basis
mental Justice in Minority Populations and
for LEP population estimate) and posing the queries
Low-Income Populations.
about complaints, the questionnaire asked whether
respondents had a written compliance program and Table 3 aggregates the responses.
whether they believed a report examining legal issues Part II of the questionnaire consisted of three
related to LEP compliance would be useful. Table 2 questions concerning compliance issues (Question 8),
6
