Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 8828-8837 [2012-3523]

Agencies

• DEPARTMENT OF DEFENSE
• Office of the Secretary

[Federal Register Volume 77, Number 31 (Wednesday, February 15, 2012)]
[Notices]
[Pages 8828-8837]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3523]


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DEPARTMENT OF DEFENSE

Office of the Secretary


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

AGENCY: Department of Defense, DoD.

ACTION: Interim final guidance.

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SUMMARY: The Department of Defense (DoD) publishes for public comment 
Interim Final Guidance to Federal Financial Assistance Recipients 
Regarding Title VI Prohibition Against National Origin Discrimination 
Affecting Limited English Proficient Persons (DoD Recipient LEP 
Guidance). The DoD Recipient LEP Guidance is based on the prohibition 
against national origin discrimination in Title VI of the Civil Rights 
Act of 1964, as affects limited English proficient persons.

DATES: Comments must be received on or before March 16, 2012.

ADDRESSES: Please submit only one set of comments via one of the 
methods described.
     Fax: (703) 571-9338.
     Mail: DoD/ODMEO LEP Public Comments, 4000 Defense 
Pentagon, Room 5D641, Washington, DC 20301-4000.
     Email: james.love@osd.mil.

FOR FURTHER INFORMATION CONTACT: James E. Love, (703) 571-9331. 
Arrangements to receive the policy in an alternative format may be made 
by contacting the named individual.

SUPPLEMENTARY INFORMATION: Under Title VI of the Civil Rights Act of 
1964, 42 U.S.C. 2000d, et seq. (Title VI), and DoD regulations 
implementing Title VI, recipients of Federal financial assistance from 
the DoD (``recipients'') have a responsibility to ensure meaningful 
access by persons with limited English proficiency (LEP) to their 
programs and activities. See 32 CFR 195.4. 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 (DOJ), 
guidance for its recipients clarifying that obligation. The Executive 
Order also directs that all such guidance be consistent with the 
compliance standards and framework set forth by DOJ.
    On March 14, 2002, the Office of Management and Budget (OMB) issued 
a Report to Congress titled ``Assessment of the Total Benefits and 
Costs of Implementing Executive Order No. 13166: Improving Access to 
Services for Persons with Limited English Proficiency.'' Among other 
things, the Report recommended the adoption of uniform guidance across 
all Federal agencies, with flexibility to permit tailoring to each 
agency's specific recipients. Consistent with this OMB recommendation, 
the DOJ published LEP Guidance for DOJ recipients which was drafted and 
organized to also function as a model for similar guidance by other 
Federal grant agencies. See 67 FR 41455 (June 18, 2002). This interim 
final DoD Guidance is based upon the model of June 18, 2002, DOJ LEP 
Guidance for Recipients.
    The primary focus of this Guidance is on entities that receive 
Federal financial assistance from DoD, either directly or indirectly, 
through a grant, cooperative agreement, contract or subcontract, and 
operate programs or activities or portions of programs or activities in 
the United States and its territories.
    In connection with the issuance of this Guidance, each DoD 
component is encouraged to review their current programs and activities 
to determine whether they provide the type of external assistance to a 
recipient which is subject to Title VI. If Title VI is determined to be 
applicable to one or more program or activity, the administering 
component should consider developing a program-specific Appendix to 
this Guidance. The Appendix should explain how the component's 
recipients may ensure meaningful linguistic access consistent with the 
principles and compliance standards set out in DoD's LEP Guidance for 
Recipients below. The Appendix will be submitted to DOJ for review and 
approval prior to publication in the Federal Register.
    It has been determined that the Guidance does not constitute a 
regulation subject to the rulemaking requirements of the Administrative 
Procedures Act, 5 U.S.C. 533. It has also been determined that this 
Guidance is not subject to the requirements of Executive Order 12866.
    The text of the complete proposed Guidance document appears below.

    Dated: January 18, 2012.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.

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.'' The 2000 
census indicates that 28.1% of all Spanish-speakers, 28.2% of all 
speakers of Chinese languages, and 32.3% of all Vietnamese-speakers 
reported that they spoke English ``not well'' or ``not at all.''
    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\ DoD recognizes that many recipients had language assistance 
programs in place prior to the issuance of Executive Order 13166. 
This 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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    This policy Guidance clarifies existing legal requirements for LEP

[[Page 8829]]

persons by providing a description of the factors recipients should 
consider in fulfilling their responsibilities to LEP persons.\2\ These 
are the same criteria DoD has been and will continue to use in 
evaluating whether recipients are in compliance with Title VI and Title 
VI regulations.
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    \2\ This 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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    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 responsibility to provide 
meaningful access to LEP persons under existing law.
    As with most government initiatives, this policy Guidance requires 
balancing several principles. While this Guidance discusses that 
balance in some detail, it is important to note the basic principles 
behind that balance. First, we must ensure that federally assisted 
programs aimed at the American public do not leave some behind simply 
because they face challenges communicating in English. This is of 
particular importance because, in 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.
    In addition, many DoD recipients also receive Federal financial 
assistance from other Federal agencies, such as the Department of 
Education or the Department of Health and Human Services. While 
guidance from those Federal agencies is consistent with this Guidance, 
recipients receiving assistance from multiple agencies should review 
those agencies' guidance documents at https://www.lep.gov for a more 
focused explanation of how the standards apply in portions of programs 
or activities that are the focus of funding from those agencies.
    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 DoD plans to continue to provide 
assistance and guidance in this important area. In addition, the DoD 
plans to work with representatives of research and defense-related 
institutions, grant organizations, administrative agencies, other 
Federal entities, and LEP persons to identify and share model plans, 
examples of best practices, and cost-saving approaches. Moreover, DoD 
intends to explore how language assistance measures, resources and 
cost-containment approaches developed with respect to its own Federally 
conducted programs and activities can be effectively shared or 
otherwise made available to recipients, particularly small businesses, 
small local governments, and small non-profits. An interagency working 
group on LEP developed a Web site, 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 of Title 
VI, 42 U.S.C. 2000d-1, 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.''
    DoD 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 respect individuals of a particular race, color, or 
national origin.'' 32 CFR 195.4(b)(2).
    The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974), 
interpreted regulations promulgated by the former Department of Health, 
Education, and Welfare, including a regulation similar to that of DOD, 
45 CFR 80.3(b)(2), to hold that Title VI prohibits conduct that has a 
disproportionate effect on LEP persons because such conduct constitutes 
national-origin discrimination. In Lau, a San Francisco school district 
that had a significant number of non-English speaking students of 
Chinese origin was required to take reasonable steps to provide them 
with a meaningful opportunity to participate in federally funded 
educational programs.
    Executive Order 13166, ``Improving Access to Services for Persons 
with Limited English Proficiency,'' 65 FR 50121 (August 16, 2000) was 
issued on August 11, 2000. Under that Executive 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, the Civil Rights Division of DOJ issued a memorandum 
clarifying and reaffirming the DOJ LEP Guidance in light of 
Sandoval.[1] 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

[[Page 8830]]

activities--the Executive Order remains in force. Mindful of the 
limitations on bringing a private action to enforce Title VI 
regulations addressing disparate impact, DoD is committed to vigorously 
enforcing the requirements of Title VI and its implementing regulations 
on behalf of LEP beneficiaries and other LEP persons encountered by DoD 
assisted agencies and entities.
    This Guidance document is thus published at the direction of 
Executive Order 13166 and pursuant to Title VI and the Title VI 
regulations. It is consistent with the relevant DOJ Guidance. 67 FR 
41455 (June 18, 2002) (also available at www.lep.gov).

III. Who is covered?

    All entities that receive Federal financial assistance from the 
DoD, either directly or indirectly, through a grant, cooperative 
agreement, contract or subcontract, and operate programs or activities 
or portions thereof in the United States and its territories, are 
covered by this Guidance. Title VI applies to all Federal financial 
assistance, which includes but is not limited to awards and loans of 
Federal funds, awards or donations of Federal land or property, details 
of Federal or Federally funded personnel, or any agreement, arrangement 
or other contract that has as one of its purposes the provision of 
assistance.
    Examples of recipients of DoD assistance covered by this Guidance 
include, but are not limited to:
    -- State and local government agencies and any other entities that 
receive DoD-donated land or land that is sold at a below-market rate; 
and
    -- Organizations and institutions, such as nonprofit organizations 
or educational institutions, receiving grants to conduct scientific, 
medical, environmental or other research.

    Title VI prohibits discrimination in any program or activity that 
receives Federal financial assistance. In most cases, when a recipient 
receives Federal financial assistance for a particular program or 
activity, all operations of the recipient are covered by Title VI, not 
just the part of the program that uses the Federal assistance. Thus, 
all parts of the recipient's operations would be covered by Title VI, 
even if the Federal assistance were used only by one part.\3\ Sub-
recipients likewise are covered when Federal funds are passed through 
from one recipient to a sub-recipient.
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    \3\ 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 particular type of service, benefit, or 
encounter.
    Examples of populations likely to include LEP persons who are 
encountered and/or served by DoD recipients and should be considered 
when planning language services include, but are not limited to:
--Persons who are included in DoD-funded medical studies;
--Persons who participate in support groups that are funded by DoD;
--Persons who encounter or who are eligible to receive benefits or 
services from a state or local agency that is a recipient of DoD 
assistance;
--Persons who encounter or are eligible to participate in portions of 
programs or activities of an institution of higher learning that 
receives DoD assistance;
--Persons who are served by programs or activities run by recipients of 
DoD-donated land;
--Persons who attend community meetings or other public meetings 
organized by DoD recipients; \4\
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    \4\ For additional guidance on providing meaningful access to 
LEP individuals at public hearings or meetings, see Department of 
Housing and Urban Development Notice of Guidance to Federal 
Assistance Recipients Regarding Title VI Prohibition Against 
National Origin Discrimination Affecting Limited English Proficient 
Persons, 68 FR 70980 (Dec. 19, 2003) (available at https://www.lep.gov).
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--Other LEP persons who encounter or are eligible to receive benefits 
or services from DoD recipients; and
--Parents and family members of the above.

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 
activity or portion thereof; (2) the frequency with which LEP 
individuals come in contact with the program or activity or portion 
thereof; (3) the nature and importance of the program, activity, 
service, benefit, or information provided by the recipient 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 encounters. For instance, some portions of a 
recipient's program or activity 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. DOD 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 encountered by'' a recipient's 
program or activity are those who are served or encountered in the 
eligible service population. This population will be program-specific, 
and includes persons who are in the geographic area that has been 
approved by a Federal grant agency as the recipient's service area. 
However, where, for instance, a regional office of a nonprofit that 
provides support services for cancer survivors serves a large LEP 
population, the appropriate service area is most likely

[[Page 8831]]

the regional office of the nonprofit organization, and not the entire 
population served by the non-profit. 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. In addition, there may be 
circumstances in which recipients appropriately identify English 
language skills as an eligibility criterion, such as in the case of a 
university English language masters program. But other portions of the 
program, such as a university daycare or clinic open to the public, or 
various public community events, cultural exchanges, campus security, 
or other portions of a recipient's operations, may have a more 
significant LEP population that may be encountered or is eligible to 
participate. 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 
encounter the recipient's program or activity.
    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 in addition to prior experiences 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.\5\ 
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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    \5\ The focus of the analysis is on lack of English proficiency, 
not the ability to speak more than one language. Note that 
demographic data may indicate the most frequently spoken languages 
other than English and the percentage of people who speak that 
language who speak or understand English less than well. Some of the 
most commonly spoken languages other than English may be spoken by 
people who are also overwhelmingly proficient in English. Thus, they 
may not be the languages spoken most frequently by limited English 
proficient individuals. When using demographic data, it is important 
to focus in on the languages spoken by those who are not proficient 
in English.
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(2) The Frequency With Which LEP Individuals Come in Contact With the 
Program

    Recipients should assess, as accurately as possible, the frequency 
with which they have or should have contact with an LEP individual from 
different language groups seeking assistance. The more frequent the 
contact with a particular language group, the more likely that enhanced 
language services in that language are needed. The steps that are 
reasonable for a recipient that serves an LEP person on a one-time 
basis will be very different than those expected from a recipient that 
serves LEP persons daily. It is also advisable to consider the 
frequency of different types of language contacts. For example, 
frequent contacts with Spanish-speaking people who are LEP may require 
certain assistance in Spanish. Less frequent contact with different 
language groups may suggest a different and less intensified solution. 
If an LEP individual accesses a program or service on a daily basis, a 
recipient has greater duties than if the same individual's program or 
activity contact is unpredictable or infrequent. But even recipients 
that serve LEP persons on an unpredictable or infrequent basis should 
use this balancing analysis to determine what to do if an LEP 
individual seeks services under the program in question. This plan need 
not be intricate. It may be as simple as being prepared to use one of 
the commercially-available telephonic interpretation services to obtain 
immediate interpreter services. In applying this standard, recipients 
should take care to consider whether appropriate outreach to LEP 
persons could increase the frequency of contact with LEP language 
groups.

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

    The more important the activity, information, service, or program, 
or the greater the possible consequences of the contact to the LEP 
individuals, the more likely language services are needed. A recipient 
needs to determine whether denial or delay of access to services or 
information could have serious, economic, safety, education or even 
life-threatening implications for the LEP individual. For instance, the 
obligations of a federally assisted entity providing medical advice or 
services differ from those of a federally assisted program providing 
purely recreational activities (however, if a language barrier could 
result in denial or delay of access to important benefits, services, or 
information, or have a serious implication for a LEP person who 
participates in the recreational activity, the legal obligation to 
provide language services in that circumstance would be higher). 
Decisions by a Federal, state, or local entity to make an activity 
compulsory or required in order to maintain or receive an important 
benefit or service or preserve a right, such as access to medical care, 
appeals procedures, or compliance with rules and responsibilities, 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, for example, may help reduce costs.\6\
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    \6\ Small recipients with limited resources may find that 
entering into a telephonic interpretation service contract will 
prove cost effective.
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    Recipients should carefully explore the most cost-effective means 
of delivering competent and accurate language services before limiting 
services due to resource concerns. Large entities and those entities 
serving a significant number or proportion of LEP persons should ensure 
that their resource limitations are well-substantiated before using 
this factor as a reason to limit language assistance. Such recipients 
may find it useful to be

[[Page 8832]]

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.
    This four-factor analysis necessarily implicates the ``mix'' of LEP 
services required. Recipients have two main ways to provide language 
services: Oral interpretation either in person or via telephone 
interpretation service (hereinafter ``interpretation'') and written 
translation (hereinafter ``translation''). Oral interpretation can 
range from on-site interpreters for critical services provided to a 
high volume of LEP persons to access through commercially-available 
telephonic interpretation services. Written translation, likewise, can 
range from translation of an entire document to translation of a short 
description of the document. In some cases, language services should be 
made available on an expedited basis while in others the LEP individual 
may be referred to another office of the recipient for language 
assistance.
    The correct mix should be based on what is both necessary and 
reasonable in light of the four-factor analysis. For instance, a job 
training center that was created three years ago after DoD donated land 
from a former military base serves a large Hispanic population. The job 
training center may need immediate oral interpreters to be available 
and should give serious consideration to hiring some bilingual staff if 
they have not done so already. By contrast, the center may be able to 
rely on a telephonic interpretation service to assist those LEP 
individuals who speak a language that is not commonly encountered by 
the center. 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

    Academic institutions, nonprofit organizations, and other 
recipients of DoD funds have a long history of interacting with people 
with varying language backgrounds and capabilities. In fact, many DoD 
recipients choose not only to provide interpretation and translation 
services, but also to provide English-language training for LEP 
individuals. This approach is consistent with the purpose of Executive 
Order 13166. DoD's goal is to continue to encourage these efforts and 
to encourage the sharing of such promising practices among recipients, 
as well as to ensure meaningful linguistic access for LEP individuals.
    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:

--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;\7\ 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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    \7\ 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 or translator should be so aware and be able to provide 
the most appropriate interpretation. The interpreter should make the 
recipient aware of the issue and the interpreter and recipient can 
then work to develop a consistent and appropriate set of 
descriptions of these terms in that language that can be used again, 
when appropriate.
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--Understand and adhere to their role as interpreters without deviating 
into a role as counselor, legal advisor, or other roles, particularly 
in a formal context such as a hearing.

    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 provided during the medical screening of a LEP 
individual must be extraordinarily high, while the quality and accuracy 
of language services provided at a university's social program 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 DOD recipients providing 
health, economic, educational, and safety services on DOD-donated land, 
a recipient would likely not be providing meaningful access if it had 
one bilingual staffer available one day a week to provide the service. 
Such conduct would likely result in delays for LEP persons that would 
be significantly greater than those for English proficient persons. 
Conversely, where access to or exercise of a service, benefit, or right 
is not effectively precluded by a reasonable delay, language assistance 
can likely be delayed for a reasonable period.
    Hiring Bilingual Staff. When particular languages are encountered 
often, hiring bilingual staff offers one of the best and often most 
economical, options. Recipients can, for example, fill public contact 
positions, such as receptionists, guards, or social workers, with staff 
who are bilingual and competent to communicate directly with LEP 
persons in their language. If

[[Page 8833]]

bilingual staff are also used to interpret between English speakers and 
LEP persons, or to orally interpret written documents from English into 
another language, they should be competent in the skill of 
interpreting. Being bilingual does not necessarily mean that a person 
has the ability to interpret. In addition, there may be times when the 
role of the bilingual employee may conflict with the role of an 
interpreter. Effective management strategies, including any appropriate 
adjustments in assignments and protocols for using bilingual staff, can 
ensure that bilingual staff are fully and appropriately utilized. When 
bilingual staff cannot meet all of the language service obligations of 
the recipient, the recipient should turn to other options.
    Hiring Staff Interpreters. Hiring interpreters may be most helpful 
where there is a frequent need for interpreting services in one or more 
languages. Depending on the facts, sometimes it may be necessary and 
reasonable to provide on-site interpreters to provide accurate and 
meaningful communication with an LEP person.
    Contracting for Interpreters. Contract interpreters may be a cost-
effective option when there is no regular need for a particular 
language skill. In addition to commercial and other private providers, 
many community-based organizations and mutual assistance associations 
provide interpretation services for particular languages. Contracting 
with and providing training regarding the recipient's programs and 
processes to these organizations can be a cost-effective option for 
providing language services to LEP persons from those language groups.
    Using Telephone Interpreter Lines. Telephone interpreter service 
lines often offer speedy interpreting assistance in many different 
languages. They may be particularly appropriate where the mode of 
communicating with an English proficient person would also be over the 
phone. Although telephonic interpretation services are useful in many 
situations, it is important to ensure that, when using such services, 
the interpreters used are competent to interpret any technical or legal 
terms specific to a particular program that may be important parts of 
the conversation. Nuances in language and non-verbal communication can 
often assist an interpreter and cannot be recognized over the phone. 
Video teleconferencing may sometimes help to resolve this issue where 
appropriate or necessary. In addition, where documents are being 
discussed, it is important to give telephonic interpreters adequate 
opportunity to review the document prior to the discussion and any 
logistical problems should be addressed.
    Using Community Volunteers. In addition to consideration of 
bilingual staff, staff interpreters, or contract interpreters (either 
in-person or by telephone) as options to ensure meaningful access by 
LEP persons, use of recipient-coordinated community volunteers, working 
with, for instance, community-based organizations may provide a cost-
effective supplemental language assistance strategy under appropriate 
circumstances. They may be particularly useful in providing language 
access for a recipient's less critical programs and activities. To the 
extent the recipient relies on community volunteers, it is often best 
to use volunteers who are trained in the information or services of the 
program and can communicate directly with LEP persons in their 
language. Just as with all interpreters, community volunteers used to 
interpret between English speakers and LEP persons, or to orally 
translate documents, should be competent in the skill of interpreting 
and knowledgeable about applicable confidentiality and impartiality 
rules. Recipients should consider formal arrangements with community-
based organizations that provide volunteers to address these concerns 
and to help ensure that services are available more regularly.
    Use of Family and Friends and Informal 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, or other person) 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. 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. 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 
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), friends, or other informal interpreters 
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. For DoD 
recipient programs and activities, this is particularly true in 
situations in which health, safety, economic livelihood, or access to 
important benefits and services are at stake, or when mistakes in 
interpretation or translation could have other serious consequences to 
the LEP person.
    While issues of competency, confidentiality, and conflict of 
interest in the use of family members, friends, or other informal 
interpreters often make their use inappropriate, the use of these 
individuals as interpreters may be an appropriate option where proper 
application of the four factors would lead to a conclusion that 
recipient-provided services are not necessary. An example of this is a 
voluntary educational tour of a DoD facility offered to the public. 
There, the importance and nature of the activity may be relatively low 
and unlikely to implicate issues of confidentiality, conflict of 
interest, or the need for accuracy. In addition, the resources needed 
and costs of providing language services may be high, and the number or 
proportion and frequency of LEP encounters may be quite low. In such a 
setting, an LEP person's use of family, friends, or others to interpret 
may be appropriate. However, children should not be used as 
interpreters.
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).

[[Page 8834]]

    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:
----Consent, application, and 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 advising LEP persons of free language assistance;
----Written tests that do not assess English language competency, but 
test competency for a particular license, job, or skill for which 
knowing English is not required;
----Applications to participate in a recipient's program or activity or 
to receive recipient benefits 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, a flyer announcing a soccer program run by 
a city agency at a former military base that was donated to that agency 
would not generally be considered vital, whereas written information 
about the application process for new affordable housing provided by 
the agency at that same base should likely 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.
    Categorizing 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, and 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 and/or the language of the recipient is not known. 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, for 
although recent technological advances have made it easier for 
recipients to store and share translated documents, such an undertaking 
could incur substantial costs and require substantial resources. 
Nevertheless, well-substantiated claims of lack of resources to 
translate all vital documents into dozens of languages do not 
necessarily relieve the recipient of the obligation to translate those 
documents into at least several of the more frequently-encountered 
languages and to set benchmarks for continued translations into the 
remaining languages over time. As a result, the extent of the 
recipient's obligation to provide written translations of documents 
should be determined by the recipient on a case-by-case basis, looking 
at the totality of the circumstances in light of the four-factor 
analysis. Because translation is a one-time expense, consideration 
should be given to whether the upfront cost of translating a document 
(as opposed to oral interpretation) should be amortized over the likely 
lifespan of the document when applying this four-factor analysis.
    Safe Harbor. Many recipients would like to ensure with greater 
certainty that they comply with their obligations to provide written 
translations in languages other than English. Paragraphs (a) and (b) 
below 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.
    When determining whether to provide translated documents or oral 
language services, recipients should consider the literacy rates of the 
LEP communities they serve. For example, certain languages (e.g., 
Hmong) until recently have been oral and not written, thus a high 
percentage of such LEP speakers may be unable to read translated 
documents or written instructions. Data analysis, utilizing information 
from a range of community groups and other sources, may provide a 
recipient with insight into whether translation of vital documents 
meets the goal of providing meaningful access, or whether it makes

[[Page 8835]]

more sense to focus those resources on oral, and, where appropriate, 
graphics- or visually-based information exchange.
    Safe Harbor. The following actions will be considered strong 
evidence of compliance with the recipient's written-translation 
obligations:
    (a) The DoD recipient provides written translations of vital 
documents for each eligible LEP language group that constitutes five 
percent or 1,000, whichever is less, of the population of persons 
eligible to be served or likely to be affected or encountered. 
Translation of other documents, if needed, can be provided orally; or
    (b) If there are fewer than 50 persons in a language group that 
reaches the five percent trigger in (a), the recipient does not 
translate vital written materials but provides written notice in the 
primary language of the LEP language group of the right to receive 
competent oral interpretation of those written materials, free of cost.
    These safe harbor provisions apply to the translation of written 
documents only. They do not affect the requirement to provide 
meaningful access to LEP individuals through competent oral 
interpreters where oral language services are needed and are 
reasonable. For example, even when there is only one LEP individual who 
is participating in a medical study, vital information should be 
provided orally in a language that person understands, even if it is 
not translated in writing.
    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.\8\ 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.''
---------------------------------------------------------------------------

    \8\ For those languages in which no formal accreditation 
currently exists, a particular level of membership in a professional 
translation association can provide some indicator of 
professionalism.
---------------------------------------------------------------------------

    Translators should understand the expected reading level of the 
audience and, where appropriate, have fundamental knowledge about the 
target language group's vocabulary and phraseology. Sometimes direct 
translation of materials results in a translation that is written at a 
much more difficult level than the English language version or has no 
relevant equivalent meaning. Community organizations may be able to 
help consider whether a document is written at an appropriate level for 
the audience. Also, there may be languages which do not have an 
appropriate direct translation of some terms. The translator should 
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. 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.
    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 call for 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 DoD recipients regarding certain health, economic, education, and 
safety services). 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 DoD 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 cards''), which invite LEP 
persons to identify their language needs to staff. Such cards, for 
instance, might say ``I speak Spanish'' in both Spanish and English, 
``I speak Vietnamese'' in both English and Vietnamese, etc. To reduce 
costs of compliance, the Federal government has made a set of these 
cards available on the Internet. The Census Bureau ``I speak card'' can 
be found and

[[Page 8836]]

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

(2) Language Assistance Measures

    An effective LEP plan would likely include information about the 
ways in which language assistance will be provided. For instance, 
recipients may want to include information on at least the following:
--Types of language services available.
--How staff can obtain those services.
--How to respond to LEP callers.
--How to respond to written communications from LEP persons.
--How to respond to LEP individuals who have in-person contact with 
recipient staff.
--How to ensure competency of interpreters and translation services.

(3) Training Staff

    Staff should know their obligations to provide meaningful access to 
information and services for LEP persons. An effective LEP plan would 
likely include training to ensure that:
--Staff know about LEP policies and procedures.
--Staff having contact with the public (or those in a recipient's 
custody) are trained to work effectively with in-person and telephone 
interpreters.

    Recipients may want to include this training as part of the 
orientation for new employees. It is important to ensure that all 
employees in public contact positions (or having contact with those in 
a recipient's custody) are properly trained. Recipients have 
flexibility in deciding the manner in which the training is provided. 
The more frequent the contact with LEP persons, the greater the need 
will be for in-depth training. Staff with little or no contact with LEP 
persons may only have to be aware of an LEP plan. However, management 
staff, even if they do not interact regularly with LEP persons, should 
be fully aware of and understand the plan so they can reinforce its 
importance and ensure its implementation by staff.

(4) Providing Notice to LEP Persons

    Once an agency has decided, based on the four factors, that it will 
provide language services, it is important for the recipient to let LEP 
persons know that those services are available and that they are free 
of charge. Recipients should provide this notice in a language LEP 
persons will understand. Examples of notification that recipients 
should consider include:
    Posting signs in intake areas and other entry points. When language 
assistance is needed to ensure meaningful access to information and 
services, it is important to provide notice in appropriate languages in 
intake areas or initial points of contact so that LEP persons can learn 
how to access those language services. This is particularly true in 
areas with high volumes of LEP persons seeking access to certain 
health, educational, safety, or economic services or activities run by 
DOD recipients. For instance, signs in intake offices could state that 
free language assistance is available. The signs should be translated 
into the most common languages encountered. They should explain how to 
get the language help.\9\
---------------------------------------------------------------------------

    \9\ The Social Security Administration has made such signs 
available at https://www.ssa.gov/multilanguage/langlist1.htm. These 
signs could, for example, be modified for recipient use.

--Stating in outreach documents that language services are available 
from the agency. Announcements could be in, for instance, brochures, 
booklets, and in outreach and recruitment information. These statements 
should be translated into the most common languages and could be 
---------------------------------------------------------------------------
``tagged'' onto the front of common documents.

--Working with community-based organizations and other stakeholders to 
inform LEP individuals of the recipients' services, including the 
availability of language assistance services.
--Using a telephone voice mail menu. The menu could be in the most 
common languages encountered. It should provide information about 
available language assistance services and how to get them.
--Including notices in local newspapers in languages other than 
English.
--Providing notices on non-English-language radio and television 
stations about the available language assistance services and how to 
get them.
--Presentations and/or notices at schools and religious organizations.

(5) Monitoring and Updating the LEP Plan

    Recipients should, where appropriate, have a process for 
determining, on an ongoing basis, whether new documents, programs, 
services, and activities need to be made accessible for LEP 
individuals, and they may want to provide notice of any changes in 
services to the LEP public and to employees. In addition, recipients 
should consider whether changes in demographics, types of services, or 
other needs require annual reevaluation of their LEP plan. Less 
frequent reevaluation may be more appropriate where demographics, 
services, and needs are more static. One good way to evaluate the LEP 
plan is to seek feedback from the community.
    In their reviews, recipients may want to consider assessing changes 
in:

--Current LEP populations in service area or population affected or 
encountered.
--Frequency of encounters with LEP language groups.
--Nature and importance of activities to LEP persons.
--Availability of resources, including technological advances and 
sources of additional resources, and the costs imposed.
--Whether existing assistance is meeting the needs of LEP persons.
--Whether staff knows and understands the LEP plan and how to implement 
it.
--Whether identified sources for assistance are still available and 
viable.

    In addition to these five elements, effective plans set clear 
goals, management accountability, and opportunities for community input 
and planning throughout the process.

VIII. Voluntary Compliance Effort

    The goal for Title VI and Title VI regulatory enforcement is to 
achieve voluntary compliance. The requirement to provide meaningful 
access to LEP persons is enforced and implemented by DoD through the 
procedures identified in the Title VI regulations. These procedures 
include complaint investigations, compliance reviews, efforts to secure 
voluntary compliance, and technical assistance.
    The Title VI regulations provide that DoD will investigate whenever 
it receives a complaint, report, or other information that alleges or 
indicates possible noncompliance with Title VI or its regulations. If 
the investigation results in a finding of compliance, DoD will inform 
the recipient in writing of this determination, including the basis

[[Page 8837]]

for the determination. The DoD uses voluntary mediation to resolve most 
complaints. However, if a case is fully investigated and results in a 
finding of noncompliance, DoD must inform the recipient of the 
noncompliance through a Letter of Findings that sets out the areas of 
noncompliance and the steps that must be taken to correct the 
noncompliance. It must attempt to secure voluntary compliance through 
informal means. If the matter cannot be resolved informally, DoD must 
secure compliance through the termination of Federal assistance after 
the DoD recipient has been given an opportunity for an administrative 
hearing and/or by referring the matter to a DOJ litigation section to 
seek injunctive relief or pursue other enforcement proceedings. The DoD 
engages in voluntary compliance efforts and provides technical 
assistance to recipients at all stages of an investigation. During 
these efforts, DoD proposes reasonable timetables for achieving 
compliance and consults with and assists recipients in exploring cost-
effective ways of coming into compliance. In determining a recipient's 
compliance with the Title VI regulations, the DoD's primary concern is 
to ensure that the recipient's policies and procedures provide 
meaningful access for LEP persons to the recipient's programs and 
activities.
    While all recipients must work toward building systems that will 
ensure access for LEP individuals, DoD acknowledges that the 
implementation of a comprehensive system to serve LEP individuals is a 
process and that a system will evolve over time as it is implemented 
and periodically reevaluated. As recipients take reasonable steps to 
provide meaningful access to federally assisted programs and activities 
for LEP persons, DoD will look favorably on intermediate steps 
recipients take that are consistent with this Guidance, and that, as 
part of a broader implementation plan or schedule, move their service 
delivery system toward providing full access to LEP persons. This does 
not excuse noncompliance but instead recognizes that full compliance in 
all areas of a recipient's activities and for all potential language 
minority groups may reasonably require a series of implementing actions 
over a period of time. However, in developing any phased implementation 
schedule, DoD recipients should ensure that the provision of 
appropriate assistance for significant LEP populations or with respect 
to activities having a significant impact on the health, safety, legal 
rights, education, economic status, or livelihood of beneficiaries is 
addressed first. Recipients are encouraged to document their efforts to 
provide LEP persons with meaningful access to federally assisted 
programs and activities.

[FR Doc. 2012-3523 Filed 2-14-12; 8:45 am]
BILLING CODE 5001-06-P