Office for Civil Rights and Civil Liberties; Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 34465-34475 [2010-14630]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 75, Number 116 (Thursday, June 17, 2010)]
[Notices]
[Pages 34465-34475]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-14630]


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DEPARTMENT OF HOMELAND SECURITY

[DHS Docket No. DHS-2009-0032]


Office for Civil Rights and Civil Liberties; Guidance to Federal 
Financial Assistance Recipients Regarding Title VI Prohibition Against 
National Origin Discrimination Affecting Limited English Proficient 
Persons

AGENCY: Office for Civil Rights and Civil Liberties, DHS.

ACTION: Notice; proposed policy guidance.

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SUMMARY: The Department of Homeland Security is publishing for public 
comment proposed guidance to recipients of Federal financial assistance 
regarding Title VI's prohibition against national origin discrimination 
affecting persons with limited English proficient persons. This 
proposed guidance is

[[Page 34466]]

issued pursuant to Executive Order 13166 and is consistent with 
government-wide guidance previously issued by the Department of 
Justice.

DATES: Written comments are invited from interested persons and 
organizations no later than July 11, 2010.

ADDRESSES: Comments should be sent to:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Officer for Civil Rights and Civil Liberties, U.S. 
Department of Homeland Security, 245 Murray Lane, SW., Building 410, 
Washington, DC 20528, Mail Stop 0190. To ensure proper handling, please 
reference DHS Docket No. DHS-2009-0032 on the correspondence. This 
mailing address may also be used for paper, disk, or CD-ROM 
submissions. DHS will accept comments in alternate formats such as 
Braille, audiotape, etc. by mail.
     E-Mail: crcl@dhs.gov. The subject line should include 
``LEP Docket DHS-2009-0032.''
     TTY: 202-401-0470, Toll Free TTY: 1-866-644-8361. TTY 
callers may also contact us through the Federal Relay Service TTY at 
(800) 877-8339. Other Federal Relay Service options are available at 
https://www.gsa.gov/fedrelay.
     Facsimile: (202) 401-4708 (not a toll-free number).
    Instructions for filing comments: All submissions received must 
include the agency name and DHS docket number DHS-2009-0032. All 
comments received (including any personal information provided) will be 
posted without change to https://www.regulations.gov.
    Reviewing comments: Public comments may be viewed online at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Rebekah Tosado, Senior Advisor to the 
Officer for Civil Rights and Civil Liberties, Office for Civil Rights 
and Civil Liberties, Department of Homeland Security, 245 Murray Lane, 
SW., Building 410, Washington, DC 20528, Mail Stop 0190. Toll free: 1-
866-644-8360 or TTY 1-866-644-8361. Local: 202-401-1474 or TTY: 202-
401-0470.

SUPPLEMENTARY INFORMATION: Executive Order 13166 directs each Federal 
agency that extends assistance subject to the requirements of Title VI 
of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq., to publish 
guidance for its respective recipients clarifying that obligation. 
Executive Order 13166, Improving Access to Services for Persons with 
Limited English Proficiency, 65 FR 50121 (August 16, 2000). Executive 
Order 13166 further directs that all such guidance documents be 
consistent with the compliance standards and framework detailed by the 
Department of Justice (DOJ). See Enforcement of Title VI of the Civil 
Rights Act of 1964--National Origin Discrimination Against Persons with 
Limited English Proficiency, 65 FR 50121 (August 16, 2000) (DOJ LEP 
Guidance).
    In this document, the Department of Homeland Security (DHS) is 
proposing to adopt guidance that adheres to the Government-wide 
compliance standards and framework detailed in the model DOJ LEP 
Guidance, as modified. Guidance to Federal Financial Assistance 
Recipients Regarding Title VI Prohibition Against National Origin 
Discrimination Affecting Limited English Proficient Persons, 67 FR 
41455 (June 18, 2002). The Departments of Commerce, Education, Health 
and Human Services, Energy, Housing and Urban Development, Labor, 
Interior, State Transportation, Treasury, and Veterans Affairs, and the 
Environmental Protection Agency, have issued similar guidance. DHS 
specifically solicits comments on the nature, scope, and 
appropriateness of the DHS-specific examples set out in this guidance 
explaining and/or highlighting how those Federal-wide guidelines are 
applicable to recipients of DHS financial assistance.
    This guidance does not constitute a regulation subject to the 
rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. 
553. This guidance is published in the Federal Register pursuant to the 
instructions in Executive Order 13166. DHS, however, is seeking public 
comment as a matter of discretion.
    This Guidance is applicable to all LEP persons seeking services and 
shall be interpreted to be consistent with Executive Order 13404, Task 
Force on New Americans (June 7, 2006).

I. Introduction

    Most individuals living in the United States read, write, speak, 
and understand English. Many individuals, however, do not read, write, 
speak, or understand English as their primary language. Based on the 
2000 census, over 28 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. The 
2000 census indicates that 28.1 percent of all Spanish-speakers, 28.2 
percent of all Chinese-speakers, and 32.3 percent of all Vietnamese-
speakers reported that they spoke English ``not well'' or ``not at 
all.'' More recent data from the 2008 American Community Survey 
estimates that 24.4 million individuals in America, or 8.6 percent of 
the population 5 years and older, speak English less than ``very 
well.''
    For LEP individuals, language can be a barrier to accessing 
important benefits or services, understanding and exercising important 
rights, providing timely and critical information to first responders 
in times of emergency, complying with applicable responsibilities, or 
understanding other information provided by Federally funded programs 
and activities. 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\ DHS recognizes that many recipients had language assistance 
programs in place prior to the issuance of Executive Order 13166. 
This policy guidance provides a uniform framework for a recipient to 
integrate, formalize, and assess the continued vitality of these 
existing and possibly additional reasonable efforts based on the 
nature of its program or activity, the current needs of the LEP 
population 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 DHS Title VI regulations 
against national origin discrimination, 6 CFR part 21. 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

[[Page 34467]]

providing a description of the factors recipients should consider in 
fulfilling their responsibilities to LEP persons.\2\ These are the same 
criteria DHS uses in evaluating whether recipients are in compliance 
with Title VI and Title VI regulations.
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    \2\ The policy guidance is not a regulation but rather a guide. 
Title VI and its implementing regulations require that recipients 
take responsible steps to ensure meaningful access by LEP persons. 
This guidance provides an analytical framework that recipients may 
use to determine how best to comply with statutory and regulatory 
obligations to provide meaningful access to the benefits, services, 
information, and other important portions of their programs and 
activities for individuals who are limited English proficient.
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    Consistency among agencies of the Federal Government is 
particularly important. Inconsistency or contradictory guidance could 
confuse recipients of Federal funds and needlessly increase costs 
without rendering the meaningful access for LEP persons that this 
guidance is designed to address. As with most government initiatives, 
this requires balancing several principles. While this guidance 
discusses that balance in some detail, it is important to note the 
basic principles. 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 individuals 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, DHS plans to continue to work with the 
Department of Justice (DOJ) and recipients to explore how language 
assistance measures, resources, and activities can effectively be 
shared or otherwise made available to recipients. 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.

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.
    DHS regulations promulgated pursuant to section 602 forbid 
recipients from ``utiliz[ing] criteria or methods of administration 
which have the effect of subjecting persons 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 with respect to individuals of a particular race, color, 
or national origin.'' 6 CFR 21.5(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, 45 CFR 80.3(b)(2), which is similar to the DHS 
Title VI interim regulation, 6 CFR part 21, to hold that Title VI 
prohibits conduct that has a disproportionate effect on LEP persons 
because such conduct constitutes national-origin discrimination. In 
Lau, a San Francisco school district that had a significant number of 
non-English speaking students of Chinese origin was required to take 
reasonable steps to provide them with a meaningful opportunity to 
participate in Federally funded educational programs.
    On August 11, 2000, the President signed Executive Order 13166, 
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.''
    At the same time, DOJ provided further guidance 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, the Supreme Court decided that Title VI does not 
create a private right of action to enforce regulations promulgated 
under Section 602. Alexander v. Sandoval, 532 U.S. 275, 293 (2001). 
Federal agencies raised questions regarding the requirements of the 
Executive Order, in light of the Supreme Court's decision in Alexander 
v. Sandoval. On October 26, 2001, DOJ's Assistant Attorney General for 
the Civil Rights Division advised agency General Counsels and civil 
rights directors, clarifying and reaffirming 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.
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    \3\ The memorandum noted that some commenters 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 Sec.  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 or, 
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 
commenters' interpretation. Sandoval holds principally that there is 
no private right of action to enforce Title VI disparate-impact 
regulations. The court explicitly stated in Sandoval that it did not 
address the validity of those regulations or Executive Order 13166 
or otherwise limits the authority and responsibility of Federal 
grant agencies to enforce their own implementing regulations. 532 
U.S. at 279.
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    This guidance document is published pursuant to Executive Order 
13166 and reflects Assistant Attorney General's

[[Page 34468]]

October 26, 2001, clarifying memorandum.

III. Covered Recipients

    DHS regulations 6 CFR 21.5(b)(2) and 44 CFR 7.5(b) require all 
recipients of Federal financial assistance from DHS 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 DHS assistance include, 
but are not limited to:
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    \4\ Pursuant to Executive Order 13166, the meaningful access 
requirement of the Title VI regulations and the four-factor analysis 
set forth in the DOJ LEP Guidance are to additionally apply to the 
programs and activities of Federal agencies, including DHS.
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    a. State and local fire departments;
    b. State and local police departments;
    c. State and local emergency management agencies;
    d. State and local governments, together with certain qualified 
private non-profit organizations, when they receive assistance pursuant 
to a Presidential declaration of disaster or emergency;
    e. Certain non-profit agencies that receive funding under the 
Emergency Food and Shelter Program;
    f. Urban areas and mass transit authorities that enhance local 
emergency, prevention and response agencies' ability to prepare for and 
respond to threats of terrorism or other emergencies;
    g. Community Emergency Response Teams (CERT), which conduct 
training and other activities to enhance individual, community, family, 
and workplace preparedness;
    h. Jails and detention facilities that house detainees of 
Immigration and Customs Enforcement;
    i. Coast Guard assisted boating safety programs;
    j. Entities that receive specialized training through the Federal 
Law Enforcement Training Center (FLETC);
    k. Intercity buses.
    The Catalogue of Federal Domestic Assistance (CFDA) contains 
current information on DHS Federal financial assistance and can be 
found at https://www.cfda.gov/. Sub-recipients likewise are covered when 
Federal funds are passed through from one recipient to a sub-recipient.
    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, 
if DHS provides assistance to a particular division of a State 
emergency management agency to improve planning capabilities in that 
division, all of the operations of the entire State emergency 
management agency--not just the particular division--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, DHS recipients 
continue to be subject to Federal non-discrimination requirements 
including those applicable to access to and provision of Federally 
assisted programs and activities to persons with limited English 
proficiency.

IV. Limited English Proficient Individual

    Individuals who do not speak English as their primary language and 
those who have a limited ability to read, write, speak, or understand 
English can be limited English proficient, or ``LEP,'' and 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 DHS recipients and should be considered 
when planning language services include but are not limited to:
    a. Persons who require the aid of a local or State police or fire 
department, or other emergency services;
    b. Persons who seek assistance at airports that receive TSA funds;
    c. Persons who are applying for assistance under a FEMA or State 
disaster relief program;
    d. Persons who seek to enroll in a safe boating course that is 
offered by a State receiving funds;
    e. Persons who use mass transit services such as buses or subways 
that receive DHS financial assistance;
    f. Persons subject to or serviced by law enforcement activities, 
including for example, suspects, violators, witnesses, victims, those 
subject to immigration-related investigations by recipient law 
enforcement agencies, agencies, and community members seeking to 
participate in crime prevention and awareness activities; or
    g. Parents and family members of LEP individuals.

V. Recipient Determination of 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 non-profits.
    After applying the above four-factor analysis, a recipient may 
conclude that different language assistance measures are sufficient for 
the different types of programs or activities in which it engages. For 
instance, some of a recipient's activities will be more important than 
others and/or have greater impact on or contact with LEP persons, and 
thus may require more in the way of language assistance. The 
flexibility that recipients have in addressing the needs of the LEP 
populations they serve does not diminish, and should not be used to 
minimize, the obligation that those needs be addressed. DHS recipients 
should apply the 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

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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 fire station serves a large LEP 
population, the appropriate service area is most likely the area served 
by that station, and not the entire population served by the agency. 
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 should consider LEP parent(s) 
when their English-proficient or LEP minor children and dependents 
access or encounter the recipients' services.
    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 if language services were 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 a 
commercially available telephonic interpretation service to obtain 
immediate interpreter services. In applying this standard, recipients 
should take care to consider whether appropriate outreach to LEP 
persons could increase the frequency of contact with LEP language 
groups.

3. The Nature and Importance of the Program, Activity, or Service 
Provided by the Program

    The more important the activity, information, service, or program, 
or the greater the possible consequences of the contact to the LEP 
individuals, the more likely language services are needed. The 
obligations to communicate with individual disaster applicants or to 
provide fire safety information to residents of a predominantly LEP 
neighborhood differ, for example, from those to provide recreational 
programming on the part of a municipal parks department receiving 
disaster aid. 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 
the requirement to complete an application to receive certain State 
disaster assistance benefits, can serve as strong evidence of the 
program's importance.

4. The Resources Available to the Recipient and Costs

    A recipient's level of resources and the costs that would be 
imposed on it may have an impact on the nature of the steps it should 
take. Smaller recipients with more limited budgets are not expected to 
provide the same level of language services as larger recipients with 
larger budgets. In addition, ``reasonable steps'' may cease to be 
reasonable where the costs imposed substantially exceed the benefits.
    Resource and cost issues, however, can often be reduced by 
technological advances; the sharing of language assistance materials 
and services among and between recipients, advocacy groups, and Federal 
grant agencies; and reasonable business practices. Where appropriate, 
training bilingual staff to 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 may, for example, help reduce costs.\7\ Recipients 
should carefully explore the most cost-effective means of delivering 
competent and accurate language services before limiting services due 
to resource concerns. Large entities and those entities serving a 
significant number or proportion of LEP persons should ensure that 
their resource limitations are well-substantiated before using this 
factor as a reason to limit language assistance. Such recipients may 
find it useful to be able to articulate, through documentation or in 
some other reasonable manner, their process for determining that 
language services would be limited based on resources or costs.
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    \7\ Small recipients with limited resources may find that 
entering into a bulk telephonic interpretation service contract will 
prove cost effective.
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    This four-factor analysis necessarily implicates the ``mix'' of LEP 
services required. Recipients have two main ways to provide language 
services: Oral and written.
    Oral interpretation either in person or via telephone 
interpretation service (hereinafter ``interpretation''): Oral 
interpretation can range from on-site interpreters for critical 
services

[[Page 34470]]

provided to a high volume of LEP persons to access through commercially 
available telephonic interpretation services.
    Written translation (hereinafter ``translation''): Written 
translation, likewise, can range from translation of an entire document 
to translation of a short description of the document.
    In some cases, language services should be made available on an 
expedited basis while in others the LEP individual may be referred to 
another office of the recipient for language assistance.
    The correct mix should be based on what is both necessary and 
reasonable in light of the four-factor analysis. For instance, a fire 
department in a largely Hispanic community may need immediate oral 
interpreters available and should give serious consideration to hiring 
some bilingual staff. (Of course, many fire departments have already 
made such arrangements). In contrast, there may be circumstances where 
the importance and nature of the activity and number or proportion and 
frequency of contact with LEP persons may be low and the costs and 
resources needed to provide language services may be high, such as in 
the case of a voluntary general public tour of a firehouse, in which 
pre-arranged language services for the particular service may not be 
necessary. Regardless of the type of language service provided, quality 
and accuracy of those services can be critical in order to avoid 
serious consequences to the LEP person and to the recipient. Recipients 
have substantial flexibility in determining the appropriate mix.

VI. Selecting Language Assistance Services

    Recipients have two main ways to provide language services, namely, 
oral and written language services. Quality and accuracy of the 
language service is critical in order to avoid serious consequences to 
the LEP person and to the recipient.

A. Oral Language Services (Interpretation)

    Interpretation is the act of listening to something in one language 
(source language) and orally translating it into another language 
(target language). Where interpretation is needed and is reasonable, 
recipients should consider some or all of the following options for 
providing competent interpreters in a timely manner.
    Competence of Interpreters. When providing oral assistance, 
recipients should ensure competency of the language service provider, 
no matter which of the strategies outlined below are used. Competency 
requires more than self-identification as bilingual. Some bilingual 
staff and community volunteers, for instance, may be able to 
communicate effectively in a different language when communicating 
information directly in that language, but not be competent to 
interpret in and out of English. Likewise, they may not be able to do 
written translations.
    Competency to interpret, however, does not necessarily mean formal 
certification as an interpreter, although certification is helpful. 
When using interpreters, recipients should ensure that they:
     Demonstrate proficiency in, and ability to communicate 
information accurately in both English and in the other language, and 
identify and employ the appropriate mode of interpreting (e.g., 
consecutive, simultaneous, summarization, or sight translation);
     Have knowledge in both languages of any specialized terms 
or concepts peculiar to the entity's program or activity and of any 
particularized vocabulary and phraseology used by the LEP person; \8\ 
and understand and follow confidentiality and impartiality rules to the 
same extent the recipient employee for whom they are interpreting and/
or to the extent their position requires;
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    \8\ Many languages have ``regionalisms,'' or differences in 
usage. For instance, a word that may be understood to mean something 
in Spanish for someone from Cuba may not be so understood by someone 
from Mexico. In addition, because there may be languages which do 
not have an appropriate direct interpretation of some disaster-
specific, nautical or legal terms, for example, the interpreter 
should be so aware and be able to provide the most appropriate 
interpretation. The interpreter should likely make the recipient 
aware of the issue and the interpreter and recipient can then work 
to develop a consistent and appropriate set of descriptions of these 
terms in that language that can be used again, when appropriate.
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     Understand and adhere to their role as interpreters 
without deviating into a role as a counselor, legal advisor, or other 
roles (particularly during the assistance application process, in 
administrative hearings, or public safety contexts).
    Some recipients, such as certain private nonprofit organizations or 
administrative courts, may have additional self-imposed requirements 
for interpreters. Where individual rights depend on precise, complete, 
and accurate interpretation or translations, such as in the context of 
application for disaster or food and shelter assistance or 
administrative hearings, the use of certified interpreters is strongly 
encouraged.\9\ Where the process is 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.
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    \9\ For those languages in which no formal accreditation or 
certification currently exists, recipients should consider a formal 
process for establishing the credentials of the interpreter.
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    While the 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 at a State-operated emergency assistance center, 
for example, must be extraordinarily high, while the quality and 
accuracy of language services in recreational programs sponsored by a 
DHS recipient need not meet the same exacting standards.
    Finally, when interpretation is needed and is reasonable, it should 
be provided in a timely manner. To be meaningfully effective, language 
assistance should be timely. While there is no single definition for 
``timely'' applicable to all types of interactions at all times by all 
types of recipients, one clear guide is that the language assistance 
should be provided at a time and place that avoids the effective denial 
of the service, benefit, or right at issue or the imposition of an 
undue burden on or delay in important rights, benefits, or services to 
the LEP person. For example, when the timeliness of services is 
important, such as with certain activities of DHS recipients providing 
evacuation coordination, food and shelter, medical care, and fire and 
rescue services, and when important legal rights are at issue, a 
recipient would likely not be providing meaningful access if it had one 
bilingual staffer available one day a week to provide the services. 
Such conduct would likely result in delays for LEP persons that would 
be significantly greater than those for English proficient persons. 
Conversely, where access to or exercise of a service, benefit, or right 
is not effectively precluded by a reasonable delay, language assistance 
can likely be delayed for a reasonable period.
     Hiring Bilingual Staff. When particular languages are 
encountered often, hiring bilingual staff offers one of the best, and 
often most economical, options. Recipients can, for example, fill 
public contact and other positions involving potential contact with LEP 
individuals, such as 911 operators, law enforcement officers, fire 
safety educators, or application takers, with staff who are bilingual 
and competent to communicate directly with LEP persons in their 
language. If bilingual staff are

[[Page 34471]]

also used to interpret between English speakers and LEP persons, or to 
orally interpret written documents from English into another language, 
they should be competent in the skill of interpreting. Being bilingual 
does not necessarily mean that a person has the ability to interpret. 
In addition, there may be times when the role of the bilingual employee 
may conflict with the role of an interpreter. Effective management 
strategies, including any appropriate adjustments in assignments and 
protocols for using bilingual staff, can ensure that bilingual staff 
are fully and appropriately utilized. When bilingual staff cannot meet 
all of the language service obligations of the recipient, the recipient 
should turn to other options.
     Hiring Staff Interpreters. Hiring interpreters may be most 
helpful where there is a frequent need for interpreting services in one 
or more languages. Depending on the facts, sometimes it may be 
necessary and reasonable to provide such on-site interpreters in order 
to assure 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 interpreters 
in a particular language. In addition to commercial and other private 
providers, many community-based organizations and mutual assistance 
associations provide interpretation services for particular languages. 
Contracting with and providing training regarding the recipient's 
programs and processes to these organizations can be a cost-effective 
option for providing language services to LEP persons from those 
language groups.
     Using Telephone Interpreter Lines. Telephone interpreter 
service lines often offer speedy interpreting assistance in many 
different languages. They may be particularly appropriate where the 
mode of communicating with an English proficient person would also be 
over the phone. Although telephonic interpretation services are useful 
in many situations, it is important to ensure that, when using such 
services, the interpreters used are competent to interpret any 
technical or legal terms specific to a particular program that may be 
important parts of the conversation. Nuances in language and non-verbal 
communication can often assist an interpreter and cannot be recognized 
over the phone. Video teleconferencing may sometimes help to resolve 
this issue where necessary. In addition, where documents are being 
discussed, it is important to give telephonic interpreters adequate 
opportunity to review the document prior to the discussion and any 
logistical problems should be addressed.
     Using Community Volunteers. In addition to consideration 
of bilingual staff, staff interpreters, or contract interpreters 
(either in person or by telephone) as options to ensure meaningful 
access by LEP persons, use of recipient-coordinated community 
volunteers, working with, for instance, community-based organizations, 
may provide a cost-effective supplemental language assistance strategy 
under appropriate circumstances. They may be particularly useful in 
providing language access for a recipient's less crucial programs and 
activities. To the extent the recipient relies on community volunteers, 
it is often best to use volunteers who are trained in the information 
or services of the program and can communicate directly with LEP 
persons in their language. Just as with all interpreters, community 
volunteers used to interpret between English speakers and LEP persons, 
or to orally translate documents, should be competent in the skill of 
interpreting and knowledgeable about applicable confidentiality and 
impartiality rules. Recipients should consider formal arrangements with 
community-based organizations that provide volunteers to address these 
concerns and to help ensure that services are available more regularly.
     Use of Family Members, Friends, or Other Applicants, 
Detainees, or Inmates 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, friend, 
acquaintance, or other applicant), 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, friend, 
fellow inmate or detainee, or other applicant 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 mission-related interests in accurate 
interpretation. In many circumstances, family members (especially 
children), friends, inmates, detainees, or other applicants, 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 medical, law enforcement, 
family or financial information to a family member, friend, 
acquaintance, or member of the local community.\10\ In addition, such 
informal interpreters may have a personal connection to the LEP person 
or an undisclosed conflict of interest, such as the desire to obtain 
greater assistance than the LEP person from a locally administered 
mitigation program. For these reasons, when oral language services are 
necessary, recipients should generally offer competent interpreter 
services free of cost to the LEP person. For some DHS recipients, such 
as those providing disaster assistance, performing law enforcement 
functions, this is particularly true in processing applications; 
conducting administrative hearings, managing situations in which 
health, safety, or access to important benefits and services are at 
stake; or when credibility and accuracy are important to protect an 
individual's rights and access to important services.
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    \10\ For example, special circumstances of confinement may raise 
additional serious concerns regarding the voluntary nature, 
conflicts of interest, and privacy issues surrounding the use of 
inmates and detainees as interpreters, particularly where an 
important right, benefit, service, disciplinary concern, or access 
to personal or law enforcement information is at stake. In some 
situations, inmates could potentially misuse information they 
obtained in interpreting for other inmates. In addition to ensuring 
competency and accuracy of the interpretation, recipients should 
take these special circumstances into account when determining 
whether an inmate or detainee makes a knowing and voluntary choice 
to use another inmate or detainee as an interpreter.
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    An example of such a case is when fire service officers investigate 
an alleged case of arson. In such a case, use of family members or 
neighbors to interpret for the alleged victim, perpetrator, or 
witnesses may raise serious issues of competency, confidentiality, and 
conflict of interest and is thus inappropriate. While issues of 
competency, confidentiality, and conflict of interest in the use of 
family members (especially children), friends, inmates, detainees, or 
other applicants often make their use inappropriate, the

[[Page 34472]]

use of these individuals as interpreters may be an appropriate option 
where proper application of the four factors would lead to a conclusion 
that recipient-provided services are not necessary. An example of this 
is a voluntary educational tour of a firehouse offered to the general 
public. There, the importance and nature of the activity may be 
relatively low and unlikely to implicate issues of confidentiality, 
conflict of interest, or the need for accuracy. In addition, the 
resources needed and costs of providing language services may be high. 
In such a setting, an LEP person's use of family, friends, or others 
may be appropriate.
    If the LEP person voluntarily chooses to provide his or her own 
interpreter, a recipient should consider whether a record of that 
choice and of the recipient's offer of assistance is appropriate. Where 
precise, complete, and accurate interpretations or translations of 
information and/or testimony are critical for law enforcement, 
adjudicatory or legal reasons, or where the competency of the LEP 
person's interpreter is not established, a recipient might decide to 
provide its own, independent interpreter, even if an LEP person wants 
to use his or her own interpreter as well. Extra caution should be 
exercised when the LEP person chooses to use a minor as the 
interpreter. While the LEP person's decision should be respected, there 
may be additional issues of competency, confidentiality, or conflict of 
interest when the choice involves using children as interpreters. The 
recipient should take care to ensure that the LEP person's choice is 
voluntary, that the LEP person is aware of the possible problems if the 
preferred interpreter is a minor child, and that the LEP person knows 
that the recipient at no cost would provide a competent interpreter.

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:
     Complaint forms.
     Intake forms with the potential for important 
consequences.
     Written notices of rights, denial, loss, or decreases in 
benefits or services, and other hearings.
     Notices of disciplinary action.
     Notices advising LEP persons of free language assistance.
     Procedural guidebooks.
     Applications to participate in a recipient's program or 
activity or to receive recipient benefits or services.
    Whether or not a document (or the information it solicits) is 
``vital'' may depend upon the importance of the program, information, 
encounter, or service involved, and the consequence to the LEP person 
if the information in question is not provided accurately or in a 
timely manner. For instance, applications for recreational programs 
should not generally be considered vital, whereas applications for 
disaster assistance could be considered vital. Where appropriate, 
recipients are encouraged to create a plan for consistently 
determining, over time and across its various activities, what 
documents are ``vital'' to the meaningful access of the LEP populations 
they serve.
    Classifying a document as vital or non-vital is sometimes 
difficult, especially in the case of outreach materials like brochures 
or other information on rights and services. Awareness of rights or 
services is an important part of ``meaningful'' access. Lack of 
awareness that a particular program, right, or service exists may 
effectively deny LEP individuals meaningful access. Thus, where a 
recipient is engaged in community outreach activities in furtherance of 
its activities, it should regularly assess the needs of the populations 
frequently encountered or affected by the program or activity to 
determine whether certain critical outreach materials should be 
translated. Community organizations may be helpful in determining what 
outreach materials may be most helpful to translate. In addition, the 
recipient should consider whether translations of outreach material may 
be made more effective when done in tandem with other outreach methods, 
including utilizing the ethnic media, schools, religious, and community 
organizations to spread a message.
    Sometimes a document includes both vital and non-vital information. 
This may be the case when the document is very large. It may also be 
the case when the title and a phone number for obtaining more 
information on the contents of the document in frequently encountered 
languages other than English is critical, but the document is sent out 
to the general public and cannot reasonably be translated into many 
languages. Thus, vital information may include, for instance, the 
provision of information in appropriate languages other than English 
regarding where a LEP person might obtain an interpretation or 
translation of the document.
    Into What Languages Should Documents Be Translated? The languages 
spoken by the LEP individuals with whom the recipient has contact 
determine the languages into which vital documents should be 
translated. A distinction should be made however, between languages 
that are frequently encountered by a recipient and less commonly 
encountered languages. Many recipients serve communities in large 
cities or across the country. They regularly serve LEP persons who 
speak dozens and sometimes over 100 different languages. To translate 
all written materials into all of those languages is unrealistic. 
Although recent technological advances have made it easier for 
recipients to store and share translated documents, such an undertaking 
would incur substantial costs and require substantial resources. 
Nevertheless, well-substantiated claims of lack of resources to 
translate all vital documents into dozens of languages do not 
necessarily relieve the recipient of the obligation to translate those 
documents into at least several of the more frequently-encountered 
languages and to set benchmarks for continued translations into the 
remaining languages over time. As a result, the extent of the 
recipient's obligation to provide written translations of documents 
should be determined by the recipient on a case-by-case basis, looking 
at the totality of the circumstances in light of the four-factor 
analysis. Because translation is a one-time expense, consideration 
should be given to whether the upfront costs 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.

[[Page 34473]]

    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.
    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.
    Pursuant to the safe harbor provisions, the following actions will 
be considered strong evidence of compliance with the recipient's 
written-translation obligations:
    a. The DHS 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 the above, the recipient does not 
translate vital written materials but provides written notice in the 
primary language of the LEP language group of the right to receive 
competent oral interpretation of those written materials, free of cost.
    These safe harbor provisions apply to the translation of written 
documents only. They do not affect the requirement to provide 
meaningful access to LEP individuals through competent oral 
interpreters where oral language services are needed and are 
reasonable. For example, homeless shelters, correctional facilities and 
detention centers should, where appropriate, ensure that rules have 
been explained to LEP persons in the language(s) they understand prior 
to taking action against them that would deprive them of certain 
rights.
    Competence of Translators. As with oral interpreters, translators 
of written documents should be competent. Many of the same 
considerations apply. However, the skill of translating is very 
different from the skill of interpreting, and a person who is a 
competent interpreter may or may not be competent to translate.
    Particularly where legal or other vital documents are being 
translated, competence can often be achieved by use of certified 
translators. Certification or accreditation may not always be possible 
or necessary.\11\ Having a second, independent translator ``check'' the 
work of the primary translator can often ensure competence. 
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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    \11\ 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 material results in a translation that is written at a 
much more difficult level than the English language version or has no 
relevant equivalent meaning.\12\ Community organizations may be able to 
help consider whether a document is written at a good level for the 
audience. Likewise, consistency in the words and phrases used to 
translate terms of art, legal, or other technical concepts helps avoid 
confusion by LEP individuals and may reduce costs. Creating or using 
already-created glossaries of commonly used terms may be useful for LEP 
persons and translators and cost effective for the recipient. Providing 
translators with examples of previous accurate translations of similar 
material by the recipient, other recipients, or Federal agencies may be 
helpful.
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    \12\ For instance, there may be languages which do not have an 
appropriate direct translation of some legal or program-specific 
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 legal or other consequence for LEP persons who 
rely on them may use translators that are less skilled than important 
documents with legal or other information upon which reliance has 
important consequences (including, e.g., information or documents of 
DHS recipients regarding certain law enforcement, health, and safety 
services and certain legal rights). The permanent nature of written 
translations, however, imposes additional responsibility on the 
recipient to ensure that the quality and accuracy permit meaningful 
access by LEP persons.

VII. Elements of An 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 DHS 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

[[Page 34474]]

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 help