National Endowment for the Arts; Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 54574-54584 [05-18320]

Agencies

• National Foundation on the Arts and Humanities
• National Foundation on the Arts and the Humanities

[Federal Register Volume 70, Number 178 (Thursday, September 15, 2005)]
[Notices]
[Pages 54574-54584]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-18320]


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NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES


National Endowment for the Arts; Guidance to Federal Financial 
Assistance Recipients Regarding Title VI Prohibition Against National 
Origin Discrimination Affecting Limited English Proficient Persons

AGENCY: National Endowment for the Arts, NFAH.

ACTION: Notice of final guidance.

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SUMMARY: The National Endowment for the Arts (``the Endowment'') 
publishes for public comment proposed Policy Guidance on Title VI's 
prohibition against national origin discrimination as it affects 
limited English proficient persons. This policy guidance is intended to 
replace policy guidance published on the Endowment Web site, https://
www.arts.gov, in November of 2000. Notice of Proposed Guidance seeking 
comments was published on June 30, 2004. No comments were received.

DATES: The Final Guidance is effective October 17, 2005.

ADDRESSES: Interested persons should submit written comments to: 
Claudia Nadig, Office of General Counsel, National Endowment for the 
Arts,1100 Pennsylvania Avenue, NW., Washington, DC 20506. Telephone 
(202) 682-5418. E-mail nadigc@arts.endow.gov.

FOR FURTHER INFORMATION CONTACT: Claudia Nadig, Office of General 
Counsel, National Endowment for the Arts, 1100 Pennsylvania Avenue, 
NW., Washington, DC 20506. Telephone (202) 682-5418. E-mail 
nadigc@arts.endow.gov.

SUPPLEMENTARY INFORMATION: Under Endowment 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 limited English proficiency (LEP). See 45 
CFR 1110. Executive Order 13166, reprinted at 65 FR 50121 (August 16, 
2000), directs each federal agency that extends assistance subject to 
the requirements of Title VI to publish, after review and approval by 
the Department of Justice, guidance for its respective recipients 
clarifying that obligation. Executive Order 13166 further directs that 
all such guidance documents be consistent with the compliance standards 
and framework detailed in the Department of Justice (DOJ) Policy 
Guidance entitled ``Enforcement of Title VI of the Civil

[[Page 54575]]

Rights Act of 1964--National Origin Discrimination Against Persons with 
Limited English Proficiency.'' See 65 FR 50123 (August 16, 2000).
    Endowment Guidance regarding obligations under Title VI to take 
reasonable steps to ensure access to programs and activities by persons 
with limited English proficiency was originally published on the 
Endowment Web site in November of 2000. See https://www.arts.gov On 
March 14, 2002, the Office of Management and Budget (OMB) issued a 
Report to Congress entitled ``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, 
the Department of Justice (DOJ) published LEP Guidance for DOJ 
recipients which was drafted and organized to function as a model for 
similar guidance by other federal grant agencies. See 67 FR 41455 (June 
18, 2002). Consistent with this directive, the Endowment has developed 
this proposed Guidance which is designed to reflect the application of 
the DOJ Guidance standards to particular classes of Endowment 
recipients.
    It has been determined that the proposed guidance does not 
constitute a regulation subject to the rulemaking requirements of the 
Administrative Procedure Act, 5 U.S.C. 553.
    The text of the complete proposed guidance document appears below.

    Dated: August 22, 2005.
Claudia Nadig,
General Counsel, National Endowment for the Arts.

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 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\ The Endowment 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 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. 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 the Endowment 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 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 National Endowment for the Arts, in 
conjunction with the Department of Justice (DOJ), plans to continue to 
provide assistance and guidance in this important area. In addition, 
the Endowment plans to work with its recipients and LEP persons to 
identify and share model plans, examples of best practices, and cost-
saving approaches. Moreover, the Endowment intends to explore how 
language assistance measures, resources and cost-containment approaches 
developed with respect to their 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 
website, 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

[[Page 54576]]

federally assisted programs and activities. The Endowment 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.
    In pertinent part, the Endowment's 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.'' See 45 CFR 1110.3(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 language substantially similar to 
that of the Endowment quoted above, 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, 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, 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 
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?

    The Endowment's regulations at 45 CFR 1110.3(b)(2) require all 
recipients of federal financial assistance from the Endowment 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 
the Endowment typically include, but are not limited to, for example:
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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 
federally conducted programs and activities of federal agencies, 
including the Endowment.
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     State arts agencies,
     Nonprofit arts organizations, and
     Educational programs pertaining to the arts.

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\ For example, 
once the Endowment provides assistance to a state arts agency, all of 
the state-wide operations of the entire state arts agency--not just the 
particular projects receiving federal assistance--are covered.
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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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    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 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

[[Page 54577]]

particular type of service, benefit, or encounter.
    Examples of populations likely to include LEP persons who are 
encountered and/or served by the Endowment's recipients and should be 
considered when planning language services include, but are not limited 
to:
     Community members who may attend performances or exhibits
     Persons participating in programs or activities 
administered or supported by local arts organizations, museums, or 
cultural centers
     Students and their parents or guardians subject to or 
serviced by educational programs dealing with the arts

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. The Endowment's 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. 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 
prlficient 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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    Examples:
    A museum in a city with a large Hispanic population including a 
significant number of LEP members should consider translating exhibit 
labels and/or audio tours into Spanish (or offering regular bilingual 
tours).
    A visual arts organization in a community with a very small number 
of Vietnamese LEP residents but a significant Chinese LEP population 
should consider translating its brochures in Chinese, but need not 
necessarily translate those brochures into Vietnamese.

(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.
     A dance company that regularly performs in a Korean 
cultural center is more likely to encounter Korean LEP persons, and 
thus have a greater need for appropriate language services, than a 
visiting dance troupe scheduled to perform at the Korean cultural 
center on a single occasion. However, if the cultural center itself is 
a recipient of assistance from the Endowment or another federal agency, 
it may have its own obligation, apart from that of the performing 
troupes it sponsors or hosts, to provide appropriate language services 
regardless of the number of performances by individual dance companies.
     A local arts agency that operates a job referral directory 
of local artists in a community that includes a significant Hmong 
population, a language group known to include a large percentage of LEP 
persons. The recipient should consider translating the application form 
into Hmong or, because Hmong is traditionally an oral rather than 
written language, offering an interpreter to assist Hmong-speaking LEP 
individuals in filling out the application.
    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

[[Page 54578]]

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 the Endowment's recipients considering the 
implications of applying this factor of the four-factor test to their 
respective programs:
    With respect to the nature of a program, it should be emphasized 
that the message of visual art, dance, and orchestral music is 
generally conveyed independent of the written or spoken word and thus 
can be accessible regardless of language. Moreover, in certain cases, 
the source language in which a play, song, opera, or poem is written 
may be essential to its nature. Thus, while librettos, subtitles, and 
synopses may be appropriate in English or another language, translation 
of the entire performance may not be consistent with the nature or 
fundamental purpose of the work as an art form. However, to the extent 
that a recipient determines that additional written or oral explanatory 
information is helpful to understand performances or exhibits, it 
should ensure that this information is, when warranted under the four-
factor analysis, also made available in appropriate languages other 
than English.
    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 or 
training situations. Entities that receive federal financial assistance 
from both the Department of Education and the Endowment may rely on the 
Department of Education's more particularized LEP Guidance to ensure 
compliance with the obligation to provide meaningful access in an 
educational context.
    Examples:
     A local arts agency administering an ``artist in 
residence'' program that places one or more sub-recipients in local 
elementary and secondary schools with a relatively small Haitian LEP 
student population should consider the provision of appropriate Haitian 
language services (including the possible selection of an artist who 
speaks Haitian Creole) in light of the frequent, possibly daily, 
interactions with this otherwise small student and parent LEP 
population.
     A state arts agency rural arts apprenticeship program 
should consider matching students with limited English skills to 
bilingual mentors.
     A filmmaker making a film or television program for 
national distribution may dub or subtitle the film in other languages, 
but is not required to do so.
     A theater company need not offer a play in translation 
even if it serves a large LEP population, but may wish to present a 
synopsis in other languages.
     A Chinese opera company in a heavily Hispanic area need 
not offer surtitles in Spanish (or English) but may consider 
translating a synopsis of the libretto.
     A literary center might offer a program of poetry readings 
in Japanese, and offer written versions in English.

(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. For example, a multi-million dollar orchestra receiving 
a $75,000 grant from the Endowment would obviously have a much greater 
ability to address the language needs of a LEP audience than a small 
chamber ensemble for whom that same grant amount represents its 
principal budget. 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\ 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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    The Endowment is well aware of the fact that many of its grant 
recipients may experience difficulties with resource allocation. The 
Endowment 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

[[Page 54579]]

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 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, if applicable, 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 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.\9\ 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. The Endowment recognizes, however, that 
such situations are infrequent in the types of programs and activities 
it typically funds.
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    \9\ For those languages in which no formal accreditation or 
certification currently exists, courts and law enforcement agencies 
should consider a formal process for establishing the credentials of 
the interpreter.
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    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 compulsory educational classes, for example, must 
be quite high while the quality and accuracy of language services in 
translation of a dance company's program notes 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. 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, such as box office personnel or program 
directors, with staff who are bilingual and competent to communicate 
directly with LEP persons in their language and at the appropriate 
level of competency. Similarly, a state arts agency serving an area 
with a significant LEP population could seek to match students with 
limited English skills with language-appropriate bilingual mentors. 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.

[[Page 54580]]

    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 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 might be a gift shop or cafeteria 
associated with an small art museum or an unstaffed historical site, 
either of which might attract many tourists from a multitude of 
language groups. 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 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, 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

[[Page 54581]]

     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 
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 Standards. 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.
    The Endowment acknowledges that it provides assistance to a wide 
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 the Endowment's recipients and for all their respective 
programs or activities. While the safe harbor standards outlined above 
offer a

[[Page 54582]]

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.\10\ 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.''
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    \10\ 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.
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    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.\11\ 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.
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    \11\ 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.
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    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 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