[Federal Register: March 24, 2003 (Volume 68, Number 56)]
[Notices]
[Page 14180-14189]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr03-35]
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DEPARTMENT OF COMMERCE
Office of the Secretary
[Docket No.: 020125021-2021-01]
Guidance to Federal Financial Assistance Recipients on the Title
VI Prohibition Against National Origin Discrimination Affecting Limited
English Proficient Persons
AGENCY: Office for Civil Rights, Office of the Secretary, Department of
Commerce.
ACTION: Notice of policy guidance with request for comment.
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SUMMARY: The purpose of this policy guidance is to clarify the
responsibilities of recipients of federal financial assistance
(``recipients'') from the U.S. Department of Commerce (DOC) 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.
DATES: This guidance is effective March 24, 2003. Comments must be
submitted within 60 days from the date of this publication in the
Federal Register. DOC will review all comments and will determine what
modifications to the policy guidance, if any, are necessary.
ADDRESSES: Interested persons should submit written comments to Mr.
Jorge Ponce, Office of Civil Rights, Room 6003, U.S. Department of
Commerce, 14th and Constitution Ave, NW., Washington, D.C. 20230.
Comments may also be submitted by e-mail at JPonce@DOC.gov.
FOR FURTHER INFORMATION CONTACT: Jorge Ponce, Office of Civil Rights,
telephone 202-482-8185, TDD: 202-482-2030. Arrangements to receive the
policy in an alternative format may be made by contacting the named
individual.
SUPPLEMENTARY INFORMATION: Under DOC regulations implementing Title VI
of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq. (Title VI),
recipients of federal financial assistance have a responsibility to
ensure meaningful access to their programs and activities by persons
with LEP. See 15 CFR 8.4(b)(2). The purpose of the LEP Guidance is to
assist recipients in complying with their Title VI responsibilities to
ensure that access to their programs or activities, normally provided
in English, are accessible to LEP persons. It clarifies existing
statutory and regulatory requirements for LEP persons by providing a
description of the factors recipients should consider in fulfilling
their responsibilities to LEP persons. It also reiterates DOC's
longstanding position that in order to avoid discrimination against LEP
persons on grounds of national origin, recipients must take adequate
steps to ensure that such persons receive the language assistance
necessary to afford them meaningful access to the programs, services,
and information those recipients provide, free of charge.
Executive Order 13166 (E.O.), reprinted at 65 FR 50121 (August 16,
2000), directs each federal agency that extends assistance subject to
the requirements of Title VI to publish guidance for its respective
recipients clarifying that obligation. The E.O. further directs that
all such guidance documents be consistent with the compliance standards
and framework detailed in DOJ 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). On March 14, 2002, the Office of
Management and Budget (OMB) issued a Report to Congress titled
``Assessment of the Total Benefits and Costs of Implementing Executive
Order No. 13166: Improving Access to Services for Persons with Limited
English Proficiency.'' Among other things, the Report recommended the
adoption of uniform guidance across all Federal agencies, with
flexibility to permit tailoring to each agency's specific recipients.
Consistent with this OMB recommendation, DOJ published LEP Guidance for
DOJ recipients which was drafted and organized to also function as a
model for similar guidance documents by other Federal grant agencies.
See 67 FR 41455 (June 18, 2002). The LEP Guidance is consistent with
the goals set forth in E.O. 13166, and with the DOJ policy guidance
documents dated August 16, 2002, and June 18, 2002.
Because this guidance must adhere to the federal-wide compliance
standards and framework detailed in the model DOJ LEP Guidance, DOC
specifically solicits comments on the nature, scope and appropriateness
of the DOC-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 through the
DOC.
Under the Administrative Procedure Act, 5 U.S.C. 553(b)(A),
interpretive rules, general statements of policy, and rules of agency
organization, procedure, or practice are exempt from notice and
comment. Because this policy guidance is a general statement of policy
without the force and effect of law, it falls within this exception and
prior notice and opportunity for public comment is not required. This
policy guidance is not subject to the requirements of Executive Order
12866.
Dated: February 28, 2003.
Suzan J. Aramaki,
Director, Office of Civil Rights.
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, 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.'' While
detailed data from the 2000 census has not yet
[[Page 14181]]
been released, 26% of all Spanish-speakers, 29.9% of all Chinese-
speakers, and 28.2% of all Vietnamese-speakers reported that they spoke
English ``not well'' or ``not at all'' in response to the 1990 census.
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
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 should not overlook the
long-term positive impacts of incorporating or offering English as a
Second Language (ESL) programs in parallel with language assistance
services. ESL courses can serve as an important adjunct to a proper LEP
plan. However, the fact that ESL classes are made available does not
obviate the statutory and regulatory requirement to provide meaningful
access for those who are not yet English proficient. Recipients of
federal financial assistance have an obligation to reduce language
barriers that can preclude meaningful access by LEP persons to
important government services.\1\
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\1\ DOC 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 program or activity, 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, including the
preparation of a LEP plan, as appropriate. This policy guidance
clarifies existing legal requirements for LEP persons by providing a
description of the factors recipients should consider in fulfilling
their responsibilities to LEP persons.\2\ These are the criteria the
Department of Commerce (DOC) will use in evaluating whether recipients
are in compliance with Title VI and Title VI regulations.
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\2\ The 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.
This guidance provides an analytical framework that recipients may
use 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 limited English proficient.
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As with most government initiatives, this requires balancing
several principles. 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 aimed
at the American public do not leave some behind simply because they
face challenges communicating in English. This is of particular
importance because, in some cases, LEP individuals may form a
substantial portion of those encountered in federally-assisted
programs. 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 non-profits that receive federal
financial assistance.
There are many productive steps that the federal government, either
collectively or as individual grant agencies, can take to help
recipients reduce the costs of language services without sacrificing
meaningful access for LEP persons. Without these steps, certain smaller
grantees may well choose not to participate in federally assisted
programs, threatening the critical functions that the programs strive
to provide. To that end, the Department, in conjunction with DOJ, plans
to continue to provide assistance and guidance in this important area.
In addition, DOC plans to work with recipients, state and local
administrative agencies, and LEP persons to identify and share model
plans, examples of best practices, and cost-saving approaches.
Moreover, DOC intends to explore how language assistance measures,
resources 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 localgovernments, and small non-profits. An
interagency working group on LEP has developed a Web site, http://
www.lep.gov
, to assist in disseminating this information to recipients,
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 the E.O. that applies to federally assisted programs and
activities. Consistent with the position of DOJ detailed below, DOC
takes n the position that this is not the case, and will continue to do
so. Accordingly, DOC 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.
The DOC 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.'' 15 CFR 8(b)(2).
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 DOC,
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, the E.O. was issued--``Improving Access to
Services for Persons with Limited English
[[Page 14182]]
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 their recipients can provide
meaningful access to LEP persons and thus comply with Title VI
regulations forbidding funding 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 E.O. ``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 LEP
Guidance''). The DOJ role under the (E.O.) is unique. The E.O. charges
DOJ with responsibility for providing LEP Guidance to other Federal
agencies and for ensuring consistency among each agency-specific
guidance. Consistency among Departments of the Federal Government is
particularly important. Inconsistency or contradictory guidance could
confuse recipients of federal funds and needlessly increase costs
without rendering the meaningful access for LEP persons that this
Guidance is designed to address.
Subsequently, federal agencies raised questions regarding the
requirements of the E.O., especially in light of the Supreme Court's
decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On October 26,
2001, Ralph F. Boyd, Jr., Assistant Attorney General for the Civil
Rights Division, 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.\3\ 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 the E.O. that
applies to federally assisted programs and activities--the E.O. remains
in force.
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\3\ 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 grant agencies to enforce their own
implementing regulations.
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III. Who Is Covered?
The DOC regulations, 15 CFR 8.4(b)(2), require all recipients of
federal financial assistance to provide meaningful access to LEP
persons.\4\ Federal financial assistance includes grants, training, use
of equipment, donations of surplus property, and other assistance. The
fundamental premise of the E.O. is that the Federal Government provides
and funds an array of services that can be made accessible to otherwise
eligible persons who are not proficient in the English language.
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\4\ Pursuant to Executive Order 13166, the meaningful access
requirement of the Title VI regulations and the four-factor analysis
set forth in the DOJ LEP Guidance are to additionally apply to the
programs and activities of federal agencies, including the
Department of Commerce.
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To this end, the E.O. provides that federal agencies shall work to
ensure that recipients of federal financial assistance (recipients)
provide meaningful access to their LEP applicants and beneficiaries. In
general, the DOC does not fund recipients who, in turn, provide
services and benefits of the entitlement-type to the general public.
The DOC does, however, fund recipients of the following DOC programs
who provide information and services to the public relating to various
aspects of business or economic development:
[sbull] Economic Development Administration's Economic Adjustment
Program and Trade Adjustment Program;
[sbull] International Trade Administration's Trade Development and
Commercial Service programs; and
[sbull] Minority Business Development Agency's Minority Business
Development Centers; Native American Business Development Centers; and
Minority Business Opportunity Committee Program.
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.\5\
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\5\ 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.
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Example: DOC provides assistance to a university to provide
business development services to minority firms. All operations of the
university--not just the business department--are covered.
Finally, some recipients operate in jurisdictions in which English
has been declared the official language. Nonetheless, these recipients
continue to be subject to federal non-discrimination requirements,
including those applicable to the provision of federally assisted
services to persons with LEP.
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,'' entitled to language
assistance with respect to a particular type of service, benefit, or
encounter.
Examples of populations likely to include LEP persons who are
encountered and/or served by DOC recipients and should be considered
when planning language services include, but are not limited to:
[sbull] Persons who are seeking technical assistance about starting
or expanding a business.
[sbull] Persons in rural and urban areas of the nations
experiencing high unemployment, low income, or other severe economic
distress.
[sbull] Persons in underserved communities interested in accessing
telecommunications and information technologies.
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
[[Page 14183]]
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 the program 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
program to people's lives; and (4) the resources available to the
grantee/recipient and costs. As indicated above, the intent of this
guidance is to suggest a balance that ensures meaningful access by LEP
persons to critical services while not imposing undue burdens on small
business, small local governments, or small nonprofits.
After applying the above four-factor analysis, a recipient may
conclude that different language assistance measures are sufficient for
the different types of programs or activities in which it engages. For
instance, some of a recipient's activities will be more important than
others and/or have greater impact on or contact with LEP persons, 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. DOC 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
One factor in determining what language services recipients should
provide is the number or proportion of LEP persons from a particular
language group served or encountered in the eligible service
population. The greater the number or proportion of these LEP persons,
the more likely language services are needed. Ordinarily, persons
``eligible to be served, or likely to be directly affected, by'' a
recipient's program or activity are those who are served or encountered
in the eligible service population. This population will be program-
specific, and includes persons who are in the geographic area that has
been approved by a federal grant agency as the recipient's service
area. However, where, for instance, a geographic area serves a large
LEP population, the appropriate service area is most likely the
geographic area, 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, provided that these
designations do not themselves discriminatorily exclude certain
populations.
Recipients should first examine their prior experiences with LEP
encounters and determine the breadth and scope of language services
that were needed. In conducting this analysis, it is important to
include language minority populations that are eligible for their
programs or activities but may be underserved because of existing
language barriers. Other data should be consulted to refine or validate
a recipient's prior experience, including the latest census data for
the area served, data from school systems and from community
organizations, and data from state and local governments.\6\ Community
agencies, school systems, religious organizations, legal aid entities,
and others can often assist in identifying populations for whom
outreach is needed and who would benefit from the recipients' programs
and activities were language services provided.
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\6\ 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 who speak or understand English less than well. Some of the
most commonly spoken languages other than English may be spoken by
people who are also overwhelmingly proficient in English. Thus, they
may not be the languages spoken most frequently by limited English
proficient individuals. When using demographic data, it is important
to focus in on the languages spoken by those who are not proficient
in English.
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(2) The Frequency With Which LEP Individuals Come in Contact With the
Program
Recipients should assess, as accurately as possible, the frequency
with which they have or should have contact with an LEP individual from
different language groups seeking assistance. The more frequent the
contact with a particular language group, the more likely that enhanced
language services in that language are 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. It is also advisable to consider the
frequency of different types of language contacts. For example,
frequent contacts with Spanish-speaking people who are LEP may require
certain assistance in Spanish. Less frequent contact with different
language groups may suggest a different and 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. But 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 LEP plan
need not be intricate. It may be as simple as being prepared to use one
of the commercially-available telephonic interpretation services to
obtain immediate interpreter services. In applying this standard,
recipients should take care to 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 emergency benefits or assistance
to a person who has been the victim of a sudden natural disaster
differ, for example, from those applicable to internet forums for beta
testers of proposed small business software. 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 can serve as strong evidence of the program's
importance.
(4) The Resources Available to the Recipient and Costs
A recipient's level of resources and the costs that would be
imposed on it may have an impact on the nature of the steps it should
take. 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.
Resource and cost issues, however, can often be reduced by
technological advances; the sharing of language assistance materials
and services among and between recipients, advocacy groups, and Federal
grant agencies; and reasonable business practices. Where appropriate,
training bilingual staff to
[[Page 14184]]
act as interpreters and translators, information sharing through
industry groups, telephonic and video conferencing interpretation
services, 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, or
the formalized use of qualified community volunteers, for example, may
help reduce costs.\7\ Recipients should carefully explore the most
cost-effective means of delivering competent and accurate language
services before limiting services due to resource concerns. 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.
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\7\ Small recipients with limited resources may find that
entering into a bulk telephonic interpretation service contract will
prove cost effective.
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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
Minority Business Development Center in a largely Asian-Pacific
community may need immediately available oral interpreters and should
give serious consideration to hiring some bilingual staff. 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 a recipient's facility--in which pre-arranged
language services for the particular service may not be necessary.
Regardless of the type of language service provided, quality and
accuracy of those services can be critical in order to avoid serious
consequences to the LEP person and to the recipient. Recipients have
substantial flexibility in determining the appropriate mix.
VI. Selecting Language Assistance Services
Recipients have two main ways to provide language services: Oral
and written language services. Quality and accuracy of the language
service is critical in order to avoid 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 following options 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 in 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 entity's program or activity and of any
particularized vocabulary and phraseology used by the LEP person; \8\
and understand and follow confidentiality and impartiality rules to the
same extent the recipient employee for whom they are interpreting and/
or to the extent their position requires.
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\8\ 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 which do
not have an appropriate direct interpretation of some courtroom or
legal terms and the interpreter should be so aware and be able to
provide the most appropriate interpretation. The interpreter should
likely 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.
Some recipients may have additional self-imposed requirements for
interpreters. Where individual rights depend on precise, complete, and
accurate interpretation or translations, the use of certified
interpreters is strongly encouraged.
While quality and accuracy of language services is critical, the
quality and accuracy of language services is nonetheless part of the
appropriate mix of LEP services required. The quality and accuracy of
language services in responding to someone who has suffered from a
natural disaster, for example, must be extraordinarily high, while the
quality and accuracy of language services in a bicycle safety class
need not meet the same exacting standards.
Finally, when interpretation is needed and is reasonable, it should
be provided in a timely manner. To be meaningfully effective, language
assistance should be timely. While there is no single definition for
``timely'' applicable to all types of interactions at all times by all
types of recipients, one clear guide is that the language assistance
should be provided 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 with certain activities of DOC recipients providing
dislocation services to someone whose business was destroyed in an
earthquake or hurricane, a recipient
[[Page 14185]]
would likely not be providing meaningful access if it had one bilingual
staffer available one day a week to provide the service. Such conduct
would likely result in delays for LEP persons that would be
significantly greater than those for English proficient persons.
Conversely, where access to or exercise of a service, benefit, or right
is not effectively precluded by a reasonable delay, language assistance
can likely be delayed for a reasonable period.
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 with staff who are bilingual and competent to communicate
directly with LEP persons in their language. If bilingual staff 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. Being bilingual
does not necessarily mean that a person has the ability to interpret.
In addition, there may be times when the role of the bilingual employee
may conflict with the role of an interpreter . Effective management
strategies, including any appropriate adjustments in assignments and
protocols for using bilingual staff, can ensure that bilingual staff
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 provide 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 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 speedy 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 used 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 interpreter and cannot be recognized over the phone.
Video teleconferencing may sometimes help to resolve this issue where
necessary. In addition, where documents are being discussed, it is
important to give telephonic interpreters adequate opportunity to
review the document prior to the discussion and any logistical problems
should be addressed.
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, working
with, for instance, community-based organizations 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 to help ensure that services are available more regularly.
Use of Family Members or Friends 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, at their own expense, an interpreter of
their own choosing (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, 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 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, confidential, or potentially embarrassing personal, family,
or financial 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. For these reasons, when oral language services are necessary,
recipients should generally offer competent interpreter services free
of cost to the LEP person. For DOC recipient programs and activities,
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.
While issues of competency, confidentiality, and conflict of
interest in the use of family members (especially children) or friends
often make their use inappropriate, the use of these individuals as
interpreters may be an appropriate option 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 a recipient's facility offered to the public.
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
[[Page 14186]]
services may be high. In such a setting, an LEP person's use of family,
friends, or others 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 for adjudicatory, or legal
reasons, 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:
[sbull] Surveys and questionnaires.
[sbull] Intake forms with the potential for important consequences.
[sbull] Notices advising LEP persons of free language assistance.
[sbull] Applications to participate in a recipient's program or
activity or to receive recipient benefits or services.
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 provided accurately or in a
timely manner. For instance, applications for bicycle safety courses
should not generally be considered vital, whereas applications for
business counseling could be considered vital. Where appropriate,
recipients are encouraged to create a plan for consistently
determining, over time and across its 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.'' Lack of
awareness that a particular program, right, or service exists may
effectively deny LEP individuals meaningful access. Thus, where a
recipient is engaged in community outreach activities in furtherance of
its 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. In addition, the
recipient should consider whether translations of outreach material may
be made more effective when done in tandem with other outreach methods,
including utilizing the ethnic media, schools, religious, and community
organizations to spread a message.
Sometimes a document includes both vital and non-vital information.
This may be the case when the document is very large. It 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, the
provision of information in appropriate languages other than English
regarding where a LEP person might obtain an interpretation or
translation of the document.
Into What Languages Should Documents be Translated? The languages
spoken by the LEP individuals with whom the recipient has contact
determine the languages into which vital documents should be
translated. A distinction should be made, however, between languages
that are frequently encountered by a recipient and less commonly-
encountered languages. Many recipients serve communities in large
cities or across the country. They regularly serve LEP persons who
speak dozens and sometimes over 100 different languages. To translate
all written materials into all of those languages is unrealistic.
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.
Nevertheless, well-substantiated claims of lack of resources to
translate all vital documents into dozens of languages do not
necessarily relieve the recipient of the obligation to translate those
documents into at least several of the more frequently-encountered
languages and to set benchmarks for continued translations into the
remaining languages over time. As a result, 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.
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)
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.
The failure to provide written translations under the circumstances
outlined in paragraphs (a) and (b) does not mean there is non-
compliance. Rather, they provide a common starting point for recipients
to consider whether and at what point the importance of the service,
benefit, or activity involved; the nature of the information sought;
and the number or proportion of LEP persons served call for written
translations of commonly-used forms into frequently-encountered
languages other than English. Thus, 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.
[[Page 14187]]
Example: Even if the safe harbors are not used, if written
translation of a certain document(s) would be so burdensome as to
defeat the legitimate objectives of its program, the translation of
the written materials 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 Guides. The following actions will be considered strong
evidence of compliance with the recipient's written-translation
obligations:
(a) The DOC recipient provides written translations of vital
documents for each eligible LEP language group that constitutes five
percent 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 five percent 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. For example, Minority Business Development Centers should,
where appropriate, ensure that basic information to assist LEP
individuals in obtaining information about how to start a business is
explained.
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.
Particularly where legal or other 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.\9\ 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 translator could translate it back into English to check
that the appropriate meaning has been conveyed. This is called ``back
translation.''
---------------------------------------------------------------------------
\9\ For those languages in which no formal accreditation
currently exists, a particular level of membership in a professional
translation association can provide some indicator of
professionalism.
---------------------------------------------------------------------------
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.\10\ Community organizations may be able to
help consider whether a document is written at a good level for the
audience. Likewise, consistency in the words and phrases used to
translate terms of art, legal, or other technical concepts 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 the recipient, other recipients, or federal agencies may be
helpful.
---------------------------------------------------------------------------
\10\ For instance, there may be languages which do not have an
appropriate direct translation of some courtroom or legal terms and
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 these terms in that language
that can be used again, when appropriate. Recipients will find it
more effective and less costly if they try to maintain consistency
in the words and phrases used to translate terms of art and legal or
other technical concepts. 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 translations of similar
material by the recipient, other recipients, or federal agencies may
be helpful.
---------------------------------------------------------------------------
While quality and accuracy of translation services is critical, the
quality and accuracy of translation services is nonetheless part of the
appropriate mix of LEP services required. For instance, documents that
are simple and have no legal or other consequence for LEP persons who
rely on them may use translators that are less skilled than important
documents with legal or other information upon which reliance has
important consequences (including, e.g., information or documents of
DOC recipients regarding certain health, and safety services and
certain legal rights). 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 Effective 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 they serve. Recipients have considerable flexibility in
developing this plan. The development and maintenance of a
periodically-updated written plan on language assistance for LEP
persons (``LEP plan'') for use by recipient employees serving the
public will likely be the most appropriate and cost-effective means of
documenting compliance and providing a framework for the provision of
timely and reasonable language assistance. Moreover, such written plans
would likely provide additional benefits to a recipient's managers in
the areas of training, administration, planning, and budgeting. These
benefits should lead most recipients to document in a written LEP plan
their language assistance services, and how staff and LEP persons can
access those services. Despite these benefits, certain DOC recipients,
such as recipients serving very few LEP persons and recipients 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. Accordingly, in the event that a
recipient elects not to develop a written plan, it should consider
alternative ways to articulate in some other reasonable manner a plan
for providing meaningful access. Entities having significant contact
with LEP persons, such as schools, religious organizations, community
groups, and groups working with new immigrants can be very helpful in
providing important input into this planning process from the
beginning.
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
The first two factors in the four-factor analysis require an
assessment of the number or proportion of LEP individuals eligible to
be served or encountered and the frequency of encounters. This requires
recipients to
[[Page 14188]]
identify LEP persons with whom it has contact.
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,
``I speak Vietnamese'' in both English and Vietnamese, etc. To reduce
costs of compliance, the Federal Government has made a set of these
cards available on the Internet. The Census Bureau ``I speak card'' can
be found and downloaded at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usdoj.gov/crt/cor/13166.htm. When
be found and downloaded at http://http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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:
[sbull] Types of language services available.
[sbull] How staff can obtain those services.
[sbull] How to respond to LEP callers.
[sbull] How to respond to written communications from LEP persons.
[sbull] How to respond to LEP individuals who have in-person
contact with recipient staff.
[sbull] How to ensure competency of interpreters and translation
services.
(3) Training Staff
Staff should know their obligations to provide meaningful access to
information and services for LEP persons. An effective LEP plan would
likely include training to ensure that:
[sbull] Staff know about LEP policies and procedures.
[sbull] Staff having contact with the public are 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. It is important to ensure that all
employees in public contact positions are properly trained. Recipients
have flexibility in deciding the manner in which the training is
provided. The more frequent the contact with LEP persons, the greater
the need will be for in-depth training. Staff with little or no contact
with LEP persons may only have to be aware of an LEP plan. 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 a recipient has decided, based on the four factors, that it
will provide language services, it is important for the recipient to
let LEP persons know that those services are available and that they
are free of charge. Recipients should provide this notice in a language
LEP persons will understand. Examples of notification that recipients
should consider include:
[sbull] Posting signs in intake areas and other entry points. When
language assistance is needed to ensure meaningful access to
information and services, it is important to provide notice in
appropriate languages in intake areas or initial points of contact so
that LEP persons can learn how to access those language services. This
is particularly true in areas with high numbers of LEP persons seeking
access to certain health, safety, dislocation or business assistance
services or activities run by DOC recipients. 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. They should explain how to get the language help.\11\
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\11\ The Social Security Administration has made such signs
available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ssa.gov/multilanguage/langlist1.htm. These
available at http://http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=www.ssa.gov/multilanguage/langlist1.htm. These
signs could, for example, be modified for recipient use.
---------------------------------------------------------------------------
[sbull] 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.
[sbull] Working with community-based organizations and other
stakeholders to inform LEP individuals of the recipients' services,
including the availability of language assistance services.
[sbull] Using a telephone voice mail menu. The menu could be in the
most common languages encountered. It should provide information about
available language assistance services and how to get them.
[sbull] Including notices in local newspapers in languages other
than English.
[sbull] Providing notices on non-English-language radio and
television stations about the available language assistance services
and how to get them.
[sbull] 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:
[sbull] Current LEP populations in service area or population
affected or encountered.
[sbull] Frequency of encounters with LEP language groups.
[sbull] Nature and importance of activities to LEP persons.
[sbull] Availability of resources, including technological advances
and sources of additional resources, and the costs imposed.
[sbull] Whether existing assistance is meeting the needs of LEP
persons.
[sbull] Whether staff knows and understands the LEP plan and how to
implement it.
[sbull] 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. The requirement to provide meaningful
access to LEP persons is enforced and implemented by DOC through the
procedures identified in the Title VI regulations. These procedures
include complaint investigations, compliance reviews, efforts to secure
voluntary compliance, and technical assistance.
The Title VI regulations provide that DOC will investigate whenever
it
[[Page 14189]]
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, DOC will inform
the recipient in writing of this determination, including the basis for
the determination. However, if a case is fully investigated and results
in a finding of noncompliance, DOC 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, DOC must
secure compliance through the termination of federal assistance after
the DOC recipient has been given an opportunity for an administrative
hearing and/or by referring the matter to a DOC litigation section to
seek injunctive relief or pursue other enforcement proceedings. The DOC
engages in voluntary compliance efforts and provides technical
assistance to recipients at all stages of an investigation. During
these efforts, DOC 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, DOC's primary concern is to
ensure that the recipient's policies and procedures provide meaningful
access for LEP persons to the recipient's programs and activities.
While all recipients must work toward building systems that will
ensure access for LEP individuals, DOC 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, DOC 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, DOC 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.
[FR Doc. 03-6835 Filed 3-21-03; 8:45 am]
BILLING CODE 3510-BP-P