Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 6067-6076 [05-2156]

Agencies

• DEPARTMENT OF THE TREASURY
• Department of Treasury

[Federal Register Volume 70, Number 23 (Friday, February 4, 2005)]
[Notices]
[Pages 6067-6076]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-2156]


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DEPARTMENT OF THE TREASURY


Guidance to Federal Financial Assistance Recipients Regarding 
Title VI Prohibition Against National Origin Discrimination Affecting 
Limited English Proficient Persons

AGENCY: Department of the Treasury.

ACTION: Notice of final guidance.

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SUMMARY: The Department of the Treasury is publishing its final policy 
guidance on the prohibition in Title VI of the Civil Rights Act of 1964 
against national origin discrimination as it affects limited English 
proficient (LEP) persons. This policy guidance replaces policy guidance 
published March 7, 2001 and republished on March 7, 2002. On December 
22, 2003, the Department published proposed guidance for public 
comment. No comments were received.

FOR FURTHER INFORMATION CONTACT: Pamela Proctor, Office of Equal 
Opportunity and Diversity, Department of the Treasury, 1750 
Pennsylvania Avenue, NW., Room 8127 Washington, DC 20220; (202) 622-
0324.

SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d, et seq. provides that no person shall be subjected to 
discrimination on the basis of race, color, or national origin under 
any program or activity that receives Federal financial assistance.
    Treasury's initial guidance regarding Title VI was published on 
March 7, 2001. See 66 FR 13829. The document was based on the policy 
guidance issued by the Department of Justice entitled ``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).
    On October 26, 2001 and January 11, 2002, the Assistant Attorney 
General for Civil Rights issued to Federal departments and agencies 
guidance memoranda that reaffirmed the Department of Justice's (DOJ) 
commitment to ensuring that federally assisted programs and activities 
fulfill their LEP responsibilities, and which clarified and answered 
certain questions raised regarding the August 16, 2000 guidance. In 
furtherance of those memoranda, the Department of the Treasury 
republished its guidance for the purpose of obtaining additional public 
comment on March 7, 2002. See 67 FR 10477.
    On March 14, 2002, following republication of Treasury's policy 
guidance, 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 by all Federal 
agencies, with flexibility to permit each agency to tailor its guidance 
to its specific customers. Consistent with this OMB recommendation, DOJ 
published LEP Guidance for DOJ recipients that was drafted and 
organized to also function as a model for similar guidance by other 
Federal agencies. See 67 FR 41455 (June 18, 2002). To the extent 
appropriate, Treasury's final guidance is consistent with the LEP 
guidance document published by DOJ.
    The text of the complete final guidance document appears below.

    Dated: December 21, 2004.
Jesus H. Delgado-Jenkins,
Acting Assistant Secretary for Management.

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

[[Page 6068]]

read, write, speak, or understand English, they are limited English 
proficient, or ``LEP.'' While detailed data from the 2000 census has 
not yet 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 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\ Treasury recognizes that many recipients may have 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 . The purpose of this policy 
guidance is to assist recipients in fulfilling their responsibilities 
to provide meaningful access to LEP persons under existing law. This 
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 same 
criteria Treasury will use in evaluating whether recipients are in 
compliance with Title VI.
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    \2\ The policy guidance is not a regulation but rather a guide. 
Title VI requires that recipients take reasonable 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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    Before discussing these criteria in greater detail, it is important 
to note two basic underlying principles. 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 many cases, LEP 
individuals 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 of the Treasury, in conjunction with the Department of 
Justice (DOJ), plans to continue to provide assistance and guidance in 
this important area. In addition, Treasury plans to work with its 
recipients and LEP persons to identify and share model plans, examples 
of best practices, and cost-saving approaches. Moreover, Treasury 
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 local governments, and small non-profits. An interagency working 
group on LEP has developed a Web site, https://www.lep.gov, to assist in 
disseminating this information to recipients, Federal agencies, and the 
communities being served.
    Many commentators have noted that some have interpreted the case of 
Alexander v. Sandoval, 532 U.S. 275 (2001), as impliedly striking down 
the regulations promulgated under Title VI that form the basis for the 
part of Executive Order 13166 that applies to federally assisted 
programs and activities. Treasury and the Department of Justice have 
taken the position that this is not the case, and will continue to do 
so. Accordingly, we will strive to ensure that federally assisted 
programs and activities work in a way that is effective for all 
eligible beneficiaries, including those with limited English 
proficiency.

II. Legal Authority

    Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d, provides that no person shall ``on the ground of race, color, or 
national origin, be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination under any program or 
activity receiving Federal financial assistance.'' Section 602 
authorizes and directs Federal agencies that are empowered to extend 
Federal financial assistance to any program or activity ``to effectuate 
the provisions of [section 601] * * * by issuing rules, regulations, or 
orders of general applicability.'' 42 U.S.C. 2000d-1.
    Agency regulations promulgated pursuant to Section 602 of Title VI 
universally 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.'' See, e.g., 28 CFR 
42.104(b) (2) (DOJ), 7 CFR 15.3(b) (2) (Department of Agriculture), 34 
CFR 100.3(b) (2) (Department of Education), 45 CFR 80.3(b) (2) 
(Department of Health and Human Services), and 45 CFR 1110.3(b) (2) 
(National Endowment for the Arts and Humanities). Treasury has not yet, 
but intends to, issue regulations implementing Title VI. These will be 
consistent with this long-standing Federal policy prohibiting the use 
of criteria or methods of administration which have the effect of 
discriminating on the basis of race, color, or national origin.
    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 language identical to that quoted 
above, to hold that Title VI prohibits conduct that has a

[[Page 6069]]

disproportionate effect on LEP persons because such conduct constitutes 
national-origin discrimination. In Lau, a San Francisco school district 
that had a significant number of non-English speaking students of 
Chinese origin was required to take reasonable steps to provide them 
with a meaningful opportunity to participate in federally funded 
educational programs.
    On August 11, 2000, Executive Order 13166 was issued. ``Improving 
Access to Services for Persons with Limited English Proficiency,'' 65 
FR 50121 (August 16, 2000). Under that order, every Federal agency that 
provides financial assistance to non-Federal entities must publish 
guidance on how 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 Executive Order. ``Enforcement of Title VI 
of the Civil Rights Act of 1964 National Origin Discrimination Against 
Persons With Limited English Proficiency,'' 65 FR 50123 (August 16, 
2000) (``DOJ LEP Guidance'').
    Subsequently, Federal agencies raised questions regarding the 
requirements of the Executive Order, especially in light of the Supreme 
Court's decision in Alexander v. Sandoval. 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 Executive Order 13166 that applies to federally 
assisted programs and activities--the Executive Order remains in force. 
This Guidance is thus published pursuant to Executive Order 13166.
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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?

    Recipients of Federal financial assistance from Treasury are 
required to provide meaningful access to LEP persons.\4\ Federal 
financial assistance includes grants, training, use of equipment, 
donations of surplus property, and other assistance. Recipients of 
assistance from Treasury typically include, but are not limited to, for 
example:
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    \4\ Pursuant to Executive Order 13166, the meaningful access 
requirement of Title VI and the four-factor analysis set forth in 
the DOJ LEP Guidance are to additionally apply to the federally 
conducted programs and activities of federal agencies, including 
Treasury.
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     Nonprofit organizations engaged in taxpayer education,
     Financial institutions serving distressed communities.
    Subrecipients likewise are covered when Federal funds are passed 
through from one recipient to a subrecipient. This is true even if only 
one part of the recipient receives the Federal assistance.\5\ Coverage 
extends to a recipient's entire program or activity; i.e., to all parts 
of a recipient's operations.
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    \5\ However, if a Federal agency were to decide to terminate 
Federal funds based on noncompliance with Title VI, only funds 
directed to the particular program or activity that is out of 
compliance would be terminated. 41 U.S.C. 2000d-1.
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    Some recipients may 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 limited English proficiency.

IV. Who Is a Limited English Proficient Individual?

    Individuals who do not speak English as their primary language and 
who have a limited ability to read, write, speak, or understand English 
can be limited English proficient, or ``LEP,'' 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 Treasury's recipients and should be 
considered when planning language services include, but are not limited 
to:
     Persons participating in taxpayer education programs 
conducted by assisted non-profit organizations, and,
     Members of distressed communities seeking fiscal services 
from assisted financial institutions.

V. How Does a Recipient Determine the Extent of Its Obligation To 
Provide LEP Services?

    Recipients are required to take reasonable steps to ensure 
meaningful access to their programs and activities by LEP persons. 
While designed to be a flexible and fact-dependent standard, the 
starting point is an individualized assessment that balances the 
following four factors: (1) The number or proportion of LEP persons 
eligible to be served or likely to be encountered by 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 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. Treasury's

[[Page 6070]]

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 precinct in the case of a law 
enforcement entity or a school in the case of an educational system 
serves a large LEP population, the appropriate service area is most 
likely the precinct or school, and not the entire population served by 
the recipient. 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. When considering the number or proportion of LEP 
individuals in a service area, recipients providing educational 
services to minor LEP students should also include the students' LEP 
parent(s) or primary caretakers among those likely to be encountered.
    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 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. For example, 
the obligations of a federally assisted school or hospital to LEP 
constituents are generally far greater than those of a federally 
assisted zoo or theater. A recipient needs to determine whether denial 
or delay of access to services or information could have serious or 
even life-threatening implications for the LEP individual. Decisions by 
a Federal, state, or local entity to make an activity compulsory, such 
as a particular educational program, can serve as strong evidence of 
the program's importance. While all situations must of course be 
analyzed on a case-by-case basis, the following general observations 
may be helpful to Treasury's recipients considering the implications of 
applying this factor of the four-factor test to their respective 
programs:
Examples
     An assisted financial institution in a city with a large 
Hispanic population including a significant number of LEP members 
should consider translating account and loan applications into Spanish 
(or implementing a procedure through which Spanish-speaking LEP persons 
could be served by Spanish-speaking officers).
    With respect to the importance of a program, activity, or service 
provided by one of the Agency's recipients, the obligation to provide 
translation services will most likely be greatest in educational/
training situations or in connection with the provision of law 
enforcement services. As an aid in applying this guidance to their own 
programs or activities, entities that receive Federal financial 
assistance from either the Department of Education or Department of 
Justice and Treasury may rely on the more particularized LEP Guidance 
of the Department of Education (in the case of a school-based 
educational program) or the Department of Justice (in the case of a law 
enforcement entity) to ensure compliance with the obligation to provide 
meaningful access in those respective contexts.

(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

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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 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\
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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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    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.
    Treasury is well aware of the fact that some of its grant 
recipients may experience difficulties with resource allocation. 
Treasury emphasizes that reasonable translation and interpretation 
costs are appropriately included in grant and award budget requests.
    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. 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 may be 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, if 
applicable, understand and follow confidentiality and impartiality 
rules to the same extent as the recipient employee for whom they are 
interpreting and/or to the extent their position requires.
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    \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 terms, 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 any other role such as counselor or advisor.

    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. Where such proceedings are 
lengthy, the interpreter will likely need breaks and team interpreting 
may be appropriate to ensure accuracy and to prevent errors caused by 
mental fatigue of interpreters.
    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 information about completion of tax forms, for 
example, must be quite high while the quality and accuracy of language 
services in translation of a brochure about the history of money 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

[[Page 6072]]

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. 
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 and sub-recipients can, for example, 
fill public contact positions with staff who are bilingual and 
competent to communicate directly with LEP persons in their language 
and at the appropriate level of competency. 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 (for instance, a bilingual 
member of a formal review panel adjudicating allegations of program or 
fiscal noncompliance would probably not be able to perform effectively 
the role of interpreter and adjudicator at the same time, even if the 
bilingual employee were a qualified 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. While of limited value for live 
performances or museum exhibits, telephone interpreter service lines 
often offer speedy interpreting assistance in many different languages 
in other public-contact situations. 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 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, if any. 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 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.
    While issues of competency, confidentiality, and conflict of 
interest in the use of family members or friends often make their use 
inappropriate, the

[[Page 6073]]

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. If the importance 
and nature of the activity is relatively low and unlikely to implicate 
issues of confidentiality, conflict of interest, or the need for 
accuracy, and the resources needed and costs of providing language 
services are high, 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, 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:

--Notices advising LEP persons of free language assistance
--Written tests that do not assess English language competency, but 
test competency for a particular license, job, or skill for which 
knowing English is not required
--Applications to participate in a recipient's program or activity or 
to receive recipient benefits, grants, 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. 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 up-front 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

[[Page 6074]]

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.
    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 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.
    Treasury provides assistance to a range of programs and activities 
serving different geographic areas with varying populations. Moreover, 
as noted above, the obligation to consider translations applies only to 
a recipient's vital documents having a significant impact on access 
rather than all types of documents used or generated by a recipient in 
the course of its activities. For these reasons, a strict reliance on 
the numbers or percentages set out in the safe harbor standards may not 
be appropriate for all of Treasury's recipients and for all their 
respective programs or activities. While the safe harbor standards 
outlined above offer a common guide, the decision as to what documents 
should be translated should ultimately be governed by the underlying 
obligation under Title VI to provide meaningful access by LEP persons 
by ensuring that the lack of appropriate translations of vital 
documents does not adversely impact upon an otherwise eligible LEP 
persons ability to access its programs or activities.
    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 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 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 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 significant 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. 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 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

[[Page 6075]]

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 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 https://www.usdoj.gov/crt/cor/13166.htm. When 
records are normally kept of past interactions with members of the 
public, the language of the LEP person can be included as part of the 
record. In addition to helping employees identify the language of LEP 
persons they encounter, this process will help in future applications 
of the first two factors of the four-factor analysis. In addition, 
posting notices in commonly encountered languages notifying LEP persons 
of language assistance will encourage them to self-identify.

(2) Language Assistance Measures

    An effective LEP plan would likely include information about the 
ways in which language assistance will be provided. For instance, 
recipients may want to include information on at least the following:

-- Types of language services available.
-- How staff can obtain those services.
-- How to respond to LEP callers.
-- How to respond to written communications from LEP persons.
-- How to respond to LEP individuals who have in-person contact with 
recipient staff.
-- How to ensure competency of interpreters and translation services.

(3) Training Staff

    Staff 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:

-- Staff know about LEP policies and procedures.
-- 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 an organization 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: 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. 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 https://www.ssa.gov/multilanguage/langlist1.htm. These 
signs could, for example, be modified for recipient use.
---------------------------------------------------------------------------

-- Stating in outreach documents that language services are available 
from the agency. Announcements could be in, for instance, brochures, 
booklets, and in outreach and recruitment information. These statements 
should be translated into the most common languages and could be 
``tagged'' onto the front of common documents.
-- Working with community-based organizations and other stakeholders to 
inform LEP individuals of the recipients' services, including the 
availability of language assistance services.
-- Using 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.
-- Including notices in local newspapers in languages other than 
English.
-- Providing notices on non-English-language radio and television 
stations about the available language assistance services and how to 
get them.
-- Presentations and/or notices at schools and religious organizations.

(5) Monit