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12 Guidance.116 Under the USDOT LEP Policy Guidance, H. Recipients' and Subrecipients' Obligation to the four factors are: Promote Inclusive Public Participation (1) The number or proportion of LEP persons eligible to Recipients and subrecipients have obligations to be served or likely to be encountered by a program, activ- promote "inclusive public participation"125 and seek out ity, or service of the recipient or grantee; (2) the frequency the viewpoints not only of minority and low-income with which LEP individuals come in contact with the pro- 126 gram; (3) the nature and importance of the program, ac- groups but also of LEP populations, such as by "of- tivity, or service provided by the recipient to people's fer[ing] early and continuous opportunities for the pub- lives; and (4) the resources available to the recipient and lic to be involved in the identification of social, eco- costs. 117 nomic, and environmental impacts of proposed Nevertheless, recipients "have considerable flexibil- transportation decisions."127 Recipients must implement ity in developing such a plan...."118 USDOT's policy guidance regarding their responsibility to LEP persons to overcome barriers to public participa- 128 4. FTA's 2007 Title VI Circular's Application to LEP tion. Effective practices include "[u]sing locations, Persons facilities, and meeting times that are convenient and accessible to low-income and minority communities"129 The 2007 FTA Title VI Circular makes repeated ref- or "different meeting sizes or formats, or varying the erences to LEP persons. The circular's Chapter IV, type and number of news media used to announce pub- General Requirements and Guidelines, applicable to lic participation opportunities, so that communications recipients and subrecipients, requires "that FTA recipi- are tailored to the particular community or popula- ents take responsible steps to ensure meaningful access tion."130 Nevertheless, recipients have "wide latitude" to the benefits, services, information, and other impor- regarding what measures are appropriate. 131 tant portions of their programs and activities for indi- Although there is no specific guidance regarding viduals who are...LEP," including the development of a whether or how to conduct a public hearing, the guid- language implementation plan.119 The circular includes ance does suggest that among the documents that an exception from the requirement for those recipients should be translated by a recipient are notices of public and subrecipients "serving very few LEP persons or hearings regarding changes in services or benefits.132 A those with very limited resources [who] may choose not prior notification should be given by appropriate means 120 to develop a written LEP plan." Nevertheless, recipi- in the language or languages of the LEP persons being ents and subrecipients that do not develop a plan must served133 and should advise that qualified interpreters134 "consider other ways to reasonably provide meaningful will be provided or be available at any hearing.135 Rele- access" to LEP persons.121 Recipients and subrecipients must provide information to the public regarding a re- 125 Id. at ch. IV-5 9(a)(1-5). cipient's Title VI obligations and "apprise members of 126 Id. at ch. IV-4 9. the public of the protections against discrimination af- 127 Id. forded to them by Title VI."122 For LEP persons, notices 128 Id. at ch. IV 9(a)(5). detailing a recipient's or subrecipient's Title VI obliga- 129 tions and complaint procedures must be translated into Id. 9(a)(3). 130 other languages "as needed and consistent with DOT Id. 9(a)(4). 123 131 LEP Guidance." Id. 9(a). 132 Also, in Chapter IV, as part of a recipient's required DOT LEP Policy Guidance, 70 Fed. Reg. 74087, at 74094 3-year submission showing compliance with Title VI, (pt. VI(B)). (Dec. 14, 2005), available at http://edocket.access. the recipient must include a copy of the agency's plan gpo.gov/2005/05-23972.htm. (Last visited Sept. 9, 2010). 133 for providing language assistance for LEP persons.124 For example, the DOT LEP Policy Guidance states that "[n]otifications should be delivered in advance of scheduled meetings or events to allow time for persons to request accom- modation and participate." Id., 70 Fed. Reg. at 74098 (pt. IX N 14). 134 The DOT LEP Policy Guidance states that "[w]here in- 116 terpretation is needed and is reasonable, recipients should Id. n.107, and accompanying text. 117 consider some or all of the options below for providing compe- Id. at 74091. tent interpreters in a timely manner"; that "when interpreta- 118 Id. at 74096 (pt. VII). tion is needed and is reasonable, it should be provided in a 119 FTA C 4702.1A (May 13, 2007), hereinafter cited as "FTA timely manner in order to be effective"; and that "[c]ontract Title VI Circular," at ch. IV-1 4. (Link is accessible at interpreters may be a cost-effective option when there is no http://www.fta.dot.gov/laws/circulars/leg_reg_5956.html (Last regular need for a particular language skill." Id. at 74093 (pt. visited Sept. 9, 2010). VI(A)). 120 135 Id. 4(a). For example, the DOT LEP Policy Guidance states that 121 Id. at ch. IV-2 4(a). "[o]nce an agency has decided, based on the four factors, that it 122 will provide language services, it is important that the recipi- Id. 5. 123 ent notify LEP persons of services available free of charge. Id. 5(b)(3). Recipients should provide this notice in languages LEP persons 124 Id. at ch. IV-4 9. would understand," such as by "[i]ncluding notices in local