Guidance to Federal Financial Assistance Recipients Regarding the Title VI Prohibition Against National Origin Discrimination Affecting Persons With Limited English Proficiency, 13980-13990 [2012-4377]

Agencies

• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 77, Number 46 (Thursday, March 8, 2012)]
[Proposed Rules]
[Pages 13980-13990]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4377]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 77, No. 46 / Thursday, March 8, 2012 / 
Proposed Rules

[[Page 13980]]



DEPARTMENT OF AGRICULTURE

7 CFR Part 15


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

AGENCY: Office of the Assistant Secretary for Civil Rights, USDA.

ACTION: Proposed final guidance.

-----------------------------------------------------------------------

SUMMARY: The United States Department of Agriculture (USDA) is 
publishing the proposed guidance on the Title VI prohibition against 
national origin discrimination as it affects limited English proficient 
persons. Consistent with Title VI of the Civil Rights Act of 1964, as 
amended, Title VI regulations, and Executive Order 13166, ``Improving 
Access to Services for Persons with Limited English Proficiency 
(LEP),'' the guidance clarifies the obligations of entities that 
receive Federal financial assistance from USDA. The guidance does not 
create new obligations, but rather, provides guidance for USDA 
recipients in meeting their existing obligations to provide meaningful 
access for LEP persons.

DATES: Comments must be received in writing on or before May 7, 2012.

ADDRESSES: Written comments via letter and facsimile are invited from 
interested persons and organizations. Comments should be sent to 
Kenneth Baisden, Chief, Policy Division, or Anna G. Stroman, Team 
Leader, Policy Division, 300 7th Street SW., Washington, DC 20250, Fax: 
(202) 690-2345. Comments may also be submitted by email at 
Kenneth.Baisden@ascr.usda.gov or Anna.Stroman@ascr.usda.gov.

FOR FURTHER INFORMATION CONTACT: This document is available for review 
on the USDA web site at www.usda.gov/da/cr.html. Arrangements to 
receive this guidance in an alternative format may be made by calling 
(202) 205-5953 or TTY at 1 (800) 877-8642 or (202) 720-2600. Upon 
request, USDA will supply appropriate aids, such as readers or print 
magnifiers, to persons with disabilities who need assistance to review 
the comments or other documents in the public record for this guidance.

SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d-2000d-6, and the USDA implementing regulations at 7 CFR 
part 15, Subpart A, ``Nondiscrimination in Federally-Assisted Programs 
of the Department of Agriculture Effectuation of Title VI of the Civil 
Rights Act of 1964,'' provide that no person shall be discriminated 
against on the basis of race, color, or national origin, be excluded 
from participation in, be denied the benefits of, or be otherwise 
subjected to discrimination under any program or activity of an 
applicant or recipient receiving Federal financial assistance from the 
Department of Agriculture or any Agency thereof. The purpose of this 
guidance is to clarify the responsibilities of recipients and sub-
recipients (recipients) who receive financial assistance from USDA and 
to assist them in fulfilling their responsibilities to LEP persons 
under Title VI of the Civil Rights Act of 1964, as amended, and the 
implementing regulations. This guidance does not impose any new 
requirements, but reiterates longstanding Title VI and regulatory 
principles and clarifies USDA's position that in order to avoid 
discrimination against LEP persons on the ground of national origin, 
recipients must take reasonable steps to ensure that LEP persons 
receive the language assistance necessary to afford them meaningful 
access to USDA programs and activities, free of charge.
    On March 14, 2002, the Office of Management and Budget (OMB) issued 
a Report to Congress entitled, ``Assessment of the Total Benefits and 
Costs of Implementing Executive Order No. 13166: Improving Access to 
Services for Persons with Limited English Proficiency.'' Among other 
things, the Report recommended the adoption of uniform guidance across 
all Federal agencies, with flexibility to permit tailoring to each 
agency's specific recipients. Consistent with this OMB recommendation, 
the Department of Justice (DOJ) published LEP Guidance for DOJ 
recipients, which was drafted and organized to function as a model for 
similar guidance by other Federal agencies. See 67 FR 41455 (June 18, 
2002). Consistent with this directive, USDA has developed this proposed 
guidance, which is designed to reflect the application of the DOJ 
Guidance standards to the programs and activities of USDA recipients.
    This guidance sets out the policies, procedures, and steps that 
USDA recipients can take to ensure that LEP persons have meaningful 
access to federally assisted programs and activities and provides 
examples of policies and practices that USDA may find violative of 
Title VI and Title VI regulations.
    It also sets out the general parameters for recipients in providing 
translations of written materials, provides examples that illustrate 
the importance of such translations, and describes the flexibility that 
recipients have in meeting this obligation. For recipients who desire 
greater specificity regarding written translations for LEP persons, the 
guidance contains population thresholds. Use of these population 
thresholds is not mandatory. The guidance explicitly states that the 
failure to meet these population thresholds will not result in a 
finding of noncompliance, but that USDA will review a number of other 
factors in determining compliance.
    The guidance also describes some of the methods recipients can use 
to meet their obligation to provide, under certain circumstances, 
competent oral interpretative services to LEP persons. It has been 
determined that this guidance does not constitute a regulation subject 
to the rulemaking requirements of the Administrative Procedure Act.

Background

    Most people living in the United States read, write, speak, and 
understand English. There are many people, however, for whom English is 
not their primary language. For instance, based on the 2000 Census, 
over 26 million individuals speak Spanish, over 10 million speak Indo-
European languages,\1\ and almost 7 million speak an Asian or Pacific 
Island language at home. If these people have

[[Page 13981]]

a limited ability to read, write, speak, or understand English, they 
are limited English proficient, or ``LEP.'' According to the 2000 
Census data, 28.3 percent of all Spanish speakers, 27.2 percent of all 
Russian speakers, 28.2 percent of all Chinese speakers, and 32.4 
percent of all Vietnamese speakers reported that they spoke English 
``not well'' or ``not at all'' in response to the 2000 Census.\2\
---------------------------------------------------------------------------

    \1\ Other Indo-European languages include most languages of 
Europe and the Indic languages of India, such as German, Yiddish, 
Dutch, Swedish, Norwegian, French, Italian, Portuguese, Russian, 
Polish, Serbo-Croatian, Hindi, Guajarati, Punjabi, Urdu, Greek, 
Baltic and Iranian languages.
    \2\ Other languages include Hungarian, Arabic, Hebrew, languages 
of Africa, native North American languages, including the American 
Indian, Alaska native languages, and some indigenous languages of 
Central and South America.
---------------------------------------------------------------------------

    Language for LEP persons 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 are 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 people 
learn English. Recipients should not overlook the long-term positive 
impacts of incorporating or offering English as a Second Language (ESL) 
programs along with language assistance services. ESL courses can serve 
as an important adjunct to a proper LEP plan. The fact that ESL classes 
are made available, however, does not obviate the statutory and 
regulatory requirements 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.\3\
---------------------------------------------------------------------------

    \3\ USDA recognizes that many recipients had language assistance 
programs in place prior to the issuance of Executive Order 13166. 
This policy guidance provides a uniform framework for a recipient to 
integrate, formalize, and assess the continued vitality of these 
existing and possibly additional reasonable efforts based on the 
nature of its program or activity, the current needs of the LEP 
populations it encounters, and its prior experience in providing 
language services in the community it serves.
---------------------------------------------------------------------------

    In certain circumstances, failure to ensure that LEP persons can 
effectively participate in or benefit from federally assisted programs 
and activities may violate the prohibition under Title VI of the Civil 
Rights Act of 1964, 42 U.S.C. 2000d, and Title VI regulations against 
national origin discrimination. The purpose of this policy guidance is 
to assist recipients in fulfilling their responsibilities to provide 
meaningful access to LEP persons under existing law. This policy 
guidance clarifies existing legal requirements by providing a 
description of the factors recipients should consider in fulfilling 
their responsibilities to LEP persons.\4\ These are the same criteria 
USDA has been using and will continue to use in evaluating whether 
recipients are in compliance with Title VI and Title VI regulations.
---------------------------------------------------------------------------

    \4\ The policy guidance is not a regulation but rather a guide. 
Title VI and implementing regulations require that recipients take 
reasonable steps to ensure meaningful access by LEP persons. This 
guidance provides an analytical framework that recipients may use to 
determine how best to comply with statutory and regulatory 
obligations to provide meaningful access to the benefits, services, 
information, and other important portions of their programs and 
activities for persons who are limited English proficient.
---------------------------------------------------------------------------

    Under Executive Order 13166, DOJ is responsible for providing LEP 
Guidance to all Federal agencies and for ensuring consistency among the 
agency-specific guidance documents issued by Federal agencies. 
Consistency among the agency-specific guidance documents issued by 
Federal agencies 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 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. 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 nonprofits that 
receive Federal financial assistance.
    There are many productive steps the Federal Government, either 
collectively or as individual agencies, can take to help recipients 
reduce the costs of language services without sacrificing meaningful 
access for LEP persons. Without these steps, certain smaller potential 
recipients may well choose not to participate in federally assisted 
programs, threatening the critical functions that the programs strive 
to provide. To that end, USDA plans to continue to provide assistance 
and guidance in this important area. In addition, USDA plans to work 
with potential and actual recipients, other Federal agencies, and LEP 
persons to identify and share model plans, examples of best practices, 
and cost-saving approaches.
    Moreover, USDA 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, local governments, and small nonprofit organizations. An 
interagency working group on LEP has developed a Web site, https://www.lep.gov, to assist in disseminating this information to recipients, 
other Federal agencies, and the communities being served.
    Some have interpreted the case of Alexander v. Sandoval, 532 U.S. 
275 (2001), as impliedly striking down the regulations promulgated 
under Title VI that form the basis for the part of Executive Order 
13166 that applies to federally-assisted programs and activities. We 
have taken the position that this is not the case and will continue to 
do so. Accordingly, we will strive to ensure that federally-assisted 
programs and activities work in a way that is effective for all 
eligible beneficiaries, including those with limited English 
proficiency.

I. Legal Authority.

    Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d, states:

    No person in the United States shall on the ground of race, 
color, or national origin, be excluded from participation in, be 
denied the benefits of, or be subjected to discrimination under any 
program or activity receiving Federal financial assistance.

    Section 602 authorizes and directs Federal agencies that are 
empowered to extend Federal financial assistance to any program or 
activity ``to effectuate the provisions of [section 601] by issuing 
rules, regulations, or orders of general applicability'' 42 U.S.C. 
2000d-1.
    In addition to Title VI, some USDA recipients must implement a 
statutory provision of the Food Stamp Act of 1977, 7 U.S.C. 2011 et 
seq., which requires them to use appropriate bilingual personnel and 
printed materials in the administration of the Supplemental Nutrition 
Assistance Program (SNAP), formerly the Food Stamp Program, in areas 
where a substantial number of potentially eligible households speak a 
language other than English. The Food Stamp Act also requires 
recipients to establish procedures governing the operation of SNAP 
offices that best serve households in each State, including households 
in

[[Page 13982]]

areas where a substantial number of potentially eligible households 
speak a language other than English.
    USDA regulations at 7 CFR 15.3b(1)-(2) provide in part:
    (1) A recipient under any program to which the regulations in this 
part apply may not, directly or through contractual or other 
arrangements on the ground of race, color, or national origin:
    (i.) Deny an individual any service, financial aid, or other 
benefit provided under the program;
    (ii.) Provide any service, financial aid, or other benefit, to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii.) Subject an individual to segregation or separate treatment 
in any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (iv.) Restrict 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;
    (v.) Treat an individual differently from others in determining 
whether he or she satisfies any admission, enrollment, quota, 
eligibility, membership, or other requirement or condition that 
individuals must meet in order to be provided any service, financial 
aid, or other benefit provided under the program;
    (vi.) Deny an individual an opportunity to participate in the 
program through the provisions of services or otherwise or afford him 
or her an opportunity to do so that is different from that afforded 
others under the program; or
    (vii.) Deny a person the opportunity to participate as a member of 
a planning or advisory body that is an integral part of the program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits or facilities that will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration that 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 to 
individuals of a particular race, color, or national origin.
    In addition, USDA regulations implementing the Food Stamp Act of 
1977, published at 7 CFR 15.3(6)(i)-(ii), provide in part:

    Based on the estimated total number of low-income households in 
a project area which speak the same non-English language (a single-
language minority), the State agency shall provide bilingual program 
information and certification materials, and staff or interpreters * 
* *.

    In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court 
interpreted regulations promulgated by the former Department of Health, 
Education, and Welfare, 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, which had a significant number of non-English speaking 
students of Chinese origin, was required to take reasonable steps to 
provide them with a meaningful opportunity to participate in federally 
funded educational programs.
    On August 11, 2000, Executive Order 13166, ``Improving Access to 
Services for Persons with Limited English Proficiency,'' was issued; 65 
FR 50121 (August 16, 2000). Under that Order, every Federal agency that 
provides financial assistance to non-Federal entities must publish 
guidance on how their recipients can provide meaningful access to LEP 
persons and thus comply with Title VI regulations forbidding funding 
recipients from ``restrict[ing] an individual in any way in the 
enjoyment of any advantage or privilege enjoyed by others receiving any 
service, financial aid, or other benefit under the program'' or from 
``utiliz[ing] criteria or methods of administration which have the 
effect of subjecting individuals to discrimination because of their 
race, color, or national origin, or have the effect of defeating or 
substantially impairing accomplishment of the objectives of the program 
as respects individuals of a particular race, color, or national 
origin.''
    On that same day, DOJ issued a general guidance document addressed 
to ``Executive Agency Civil Rights Officers'' setting forth general 
principles for agencies to apply in developing guidance documents for 
their recipients pursuant to the Executive Order, ``Enforcement of 
Title VI of the Civil Rights Act of 1964--National Origin 
Discrimination against Persons with Limited English Proficiency'' 65 FR 
50123 (August 16, 2000), (DOJ LEP Guidance).
    Subsequently, Federal agencies raised questions regarding the 
requirements of the Executive Order, especially in light of the Supreme 
Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On 
October 26, 2001, Ralph F. Boyd, Jr., Assistant Attorney General for 
the Civil Rights Division, issued a memorandum for ``Heads of 
Departments and Agencies, General Counsels and Civil Rights 
Directors.'' This memorandum clarified and reaffirmed the DOJ LEP 
Guidance in light of Sandoval.\5\ 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.
---------------------------------------------------------------------------

    \5\ The memorandum noted that some commentators have interpreted 
Sandoval as impliedly striking down the disparate impact regulations 
promulgated under Title VI that form the basis for the part of 
Executive Order 13166 that applies to federally assisted programs 
and activities. See, e.g., Sandoval, 532 U.S. at 286, 286 n.6 
(``[We] assume for purposes of this decision that section 602 
confers the authority to promulgate disparate-impact regulations; * 
* * We cannot help observing, however, how strange it is to say that 
disparate-impact regulations are inspired by, at the service of, and 
inseparably intertwined with Sec.  601, when Sec.  601 permits the 
very behavior that the regulations forbid.'') The memorandum, 
however, made clear that DOJ disagreed with the commentators' 
interpretation. Sandoval holds principally that there is no private 
right of action to enforce Title VI disparate impact regulations. It 
did not address the validity of those regulations or Executive Order 
13166 or otherwise limit the authority and responsibility of Federal 
agencies to enforce their own implementing regulations.
---------------------------------------------------------------------------

    This guidance clarifies the responsibilities of recipients and will 
assist them in fulfilling their responsibilities to LEP persons under 
Title VI of the Civil Rights Act of 1964, as amended, and Title VI 
regulations. It is consistent with Executive Order 13166 and DOJ LEP 
guidance. To avoid discrimination against LEP persons on the ground of 
national origin, USDA recipients should take reasonable steps to ensure 
that such persons receive the language assistance necessary to afford 
them meaningful access to recipient programs or activities, free of 
charge.

II. Who is covered?

    USDA regulations require all recipients of Federal financial 
assistance from USDA to provide meaningful access to LEP persons.\6\ 
Federal financial assistance includes grants, below-market loans, 
training, and use of equipment, donations of surplus

[[Page 13983]]

property, and other assistance. Covered entities include, but are not 
limited to:
---------------------------------------------------------------------------

    \6\ 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 USDA 
federally conducted programs and activities.
---------------------------------------------------------------------------

     State and County agencies, offices, and their 
subdivisions;
     Private vendors, agents, contractors, associations, and 
corporations;
     Colleges, universities, and elementary and secondary 
schools;
     County, district, and regional committees/councils;
     Nursing homes, summer camps, food banks, and housing 
authorities;
     Research and promotion boards; and
     Other entities receiving, directly or indirectly, Federal 
financial assistance provided by USDA.
    Sub-recipients likewise are covered when Federal funds are passed 
through from a 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.\7\ This is true even if only 
one part of the recipient receives the Federal financial assistance.\8\ 
For example, USDA provides assistance to a University's outreach 
department to provide business development services to local farmers 
and ranchers. In such a case, all operations of the University--not 
just those of the University's outreach department--are covered.
---------------------------------------------------------------------------

    \7\ What constitutes a program or activity covered by Title VI 
was clarified by Congress in 1988, when the Civil Rights Restoration 
Act of 1987 (CRRA) was enacted. The CRRA provides that, 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 or activity 
that uses the federal assistance.
    \8\ 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).
---------------------------------------------------------------------------

    Some recipients operate in jurisdictions in which English has been 
declared the official language. These recipients continue to be subject 
to Federal nondiscrimination requirements, including those applicable 
to the provision of federally assisted services and benefits to persons 
with limited English proficiency.\9\
---------------------------------------------------------------------------

    \9\ Recipients should also be mindful of their responsibilities 
under the Americans with Disabilities Act of 1990 and Sec.  504 of 
the Rehabilitation Act of 1973 in meeting their obligation to ensure 
access to LEP individuals with disabilities.
---------------------------------------------------------------------------

III. Who is a limited english proficient person?

    Persons 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,'' and entitled to language 
assistance with respect to a particular type of benefit, service, or 
encounter. Examples of populations likely to include LEP persons who 
are encountered and/or served by USDA recipients and should be 
considered when planning language services include, but are not limited 
to, for example:
     Persons seeking access to or needing assistance to obtain 
SNAP benefits or other food assistance from a recipient;
     Persons seeking information, seeking to enforce rights, or 
seeking benefits or services from recipient State and County agencies, 
offices, and their subdivision;
     Persons encountering recipient private vendors, agents, 
contractors, associations, and corporations;
     Students, community members, and others encountering 
recipient extension programs, colleges, universities, and elementary 
and secondary schools;
     Persons seeking to participate in public meetings or 
otherwise participate in the activities of county, district, and 
regional committees/councils;
     Persons seeking access to, or services, or information 
from, nursing homes, summer camps, food banks, and housing authorities;
     Persons subject to the work of research and promotion 
boards;
     Persons encountering other entities or persons who 
receive, directly or indirectly, Federal financial assistance provided 
by USDA; and
     Parents and family members of the above.

IV. How does a recipient determine the extent of its obligation to 
provide LEP services?

    In order to ensure compliance with Title VI and Title VI 
regulations, recipients are required to take reasonable steps to ensure 
that LEP persons have meaningful access to their programs and 
activities. While designed to be a flexible and fact-dependent 
standard, the starting point is an individualized assessment that 
balances the following four factors:
    I. The number or proportion of LEP persons eligible to be served or 
likely to be encountered within the area serviced by the recipient;
    II. The frequency with which LEP persons come in contact with the 
program or activity;
    III. The nature and importance of the program, activity, or service 
to people's lives; and
    IV. The resources available to the 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 avoiding undue burdens on small business, small local 
governments, or small nonprofits.
    After applying the above four-factor analysis, a recipient may 
conclude that different language assistance measures are sufficient for 
the different types of programs or activities in which it engages. For 
instance, some of a recipient's activities will be more important than 
others and/or have greater impact on or contact with LEP persons, and 
thus might require more in the way of language assistance. However, the 
flexibility that recipients have to address the needs of the LEP 
populations they serve does not diminish and should not be used to 
minimize their obligation to address those needs. USDA recipients 
should apply the following four factors to the various kinds of 
contacts with the public to assess language needs and decide which 
reasonable steps should be taken to ensure meaningful access for LEP 
persons.

I. The Number or Proportion of LEP Persons Eligible To Be Served or 
Likely To Be Encountered Within the Area Serviced by the Recipient

    One factor in determining which 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 LEP persons within 
the eligible service population, the more likely language services are 
needed.
    Ordinarily, persons ``eligible to be served or likely to be 
directly affected by'' a recipient's program or activities are those 
who are served or encountered in the eligible service population. The 
eligible service population is program/activity-specific and includes 
persons who are in the recipient's geographic service area as 
established by USDA, State or local authorities, or the recipient, as 
appropriate, provided that those designations do not themselves 
discriminatorily exclude certain populations. For instance, if a 
statewide conservation district serves a large LEP population within a 
particular county, the appropriate service area will be the county, and 
not the entire population eligible to participate in the program or 
activity within the State. Below are additional examples of how USDA 
would determine the relevant service areas when assessing who is 
eligible to be served or likely to be directly affected.

    Example A: A complaint filed with USDA alleges that a local SNAP 
certification office

[[Page 13984]]

discriminates against Hispanic and Chinese LEP applicants by failing 
to provide such persons with language assistance in connection with 
its programs and activities, including written translations. The 
certification office identifies its service area as the geographic 
area identified in its plan of operations. USDA determines that a 
substantial number of the recipient's food stamp applicants and 
beneficiaries are drawn from the area identified in the plan of 
operations and that no area with concentrations of racial, ethnic, 
or other minorities is discriminatorily excluded from the plan. USDA 
is likely to accept the area identified in the plan of operations as 
the relevant service area.
    Example B: A privately owned limited-profit housing corporation 
enters into an agreement with USDA to provide low-income rural 
rental housing that will serve beneficiaries in three counties. The 
agreement is reviewed and approved by USDA. In determining the 
persons eligible to be served or likely to be affected, the relevant 
service area would generally be that designated in the agreement. 
However, if one of the counties has a significant population of LEP 
persons and the others do not, consideration of that particular 
county as a service population for purposes of determining the 
proportion of LEP persons in the population served by that portion 
of the recipient's program or activity would be appropriate.

    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 or 
participate in a portion of a 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 should be consulted to refine or validate a recipient's 
prior experience, including the latest Census data for the area served, 
data from school and from community organizations, and data from State 
and local governments.\10\ 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.
---------------------------------------------------------------------------

    \10\ The focus of the analysis is on the lack of English 
proficiency, not the ability to speak more than one language. Note 
that demographic data might 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 might be 
spoken by people who are also overwhelmingly proficient in English. 
Thus, they might not be the languages spoken most frequently by 
limited English proficient persons. When using demographic data, it 
is important to focus in on the languages spoken by those who are 
not proficient in English.
---------------------------------------------------------------------------

II. The Frequency With Which LEP Persons Come in Contact With the 
Program or Activity

    Recipients should assess, as accurately as possible, the frequency 
with which they have or should have contact with LEP persons 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 LEP persons on a one-time basis 
will be very different from 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 contact 
with Spanish-speaking people who are LEP might require certain 
assistance in Spanish. Less frequent contact with different language 
groups might suggest a different and less intensified solution. If an 
LEP person accesses a program or service on a daily basis, a recipient 
has greater duties than if the same person's program or activity 
contact is unpredictable or infrequent. However, 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 person seeks 
services under the program in question. This plan need not be 
intricate; it can 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.

III. The Nature and Importance of the Program, Activity or Service

    The more important the information, service, or benefit provided in 
a program or activity, or the greater the possible consequences of the 
contact to LEP persons, the more likely language services are needed. 
For instance, in determining importance, the obligation to communicate 
information on the availability of emergency food assistance in a 
designated disaster area might differ significantly from the obligation 
to communicate information on the opportunity to attend a one-time free 
luncheon at a community recreation center. A recipient needs to 
determine whether denial or delay of access to services, benefits or 
information could have serious or even life-threatening implications 
for an LEP person. For example, the failure to translate consent forms 
and applications for important benefits or services could have serious 
or life-threatening implications for LEP persons in need of food, 
shelter, emergency services, and many other important benefits. Also, a 
recipient needs to determine if the media used to publicize a benefit 
or service, or a delay in providing information on a program, service, 
or benefit might have serious, negative implications for LEP persons. 
Further, decisions by a Federal, State, or local entity, or by the 
recipient, to make an activity compulsory, such as educational programs 
and notifications of the right to a hearing or appeal can serve as 
strong evidence of the program's importance.

IV. 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 those 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 agencies; and 
reasonable business practices. Where appropriate, the following might 
help reduce costs: 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, or centralizing interpreter and translator services to 
achieve economies of scale; the formalized use of qualified community 
volunteers can also help reduce costs.\11\

[[Page 13985]]

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 
might 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.
---------------------------------------------------------------------------

    \11\ Small recipients with limited resources might find that 
entering into a bulk telephonic interpretation service contract will 
prove cost effective.
---------------------------------------------------------------------------

    The four-factor analysis necessarily implicates the ``mix'' of 
appropriate LEP services. Recipients have two main ways to provide 
language services: (1) Oral interpretation either in person or via 
telephone interpretation service (hereinafter ``interpretation'') and 
(2) written translation (hereinafter ``translation''). Oral 
interpretation can range from on-site interpreters for critical 
services provided to commercially available telephonic interpretation 
services that are accessed by a high volume of LEP persons. 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 person may be referred to another recipient office 
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, social 
service recipients having a service area with a significant Hispanic 
LEP population might need immediate oral interpreters available and 
should give serious consideration to hiring some bilingual staff. (Of 
course, many social services have already made such arrangements.) In 
contrast, there might 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 might be high--such as in the case of a voluntary 
general public tour of a recreational facility--in which pre-arranged 
language services for the particular service might 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 LEP persons and to recipients. Recipients have 
substantial flexibility in determining the appropriate mix.

V. Selecting Language Assistance Services

    Recipients have two main ways to provide language assistance to LEP 
persons--oral interpretation and written translations. Quality and 
accuracy of the language service is critical in order to avoid serious 
consequences to LEP persons and to recipients.

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. Assessment 
of competency involves more than self-identification as bilingual. Some 
bilingual staff and community volunteers, for instance, might 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 might 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 particular to the recipient's program or activity and of 
any particularized vocabulary and phraseology used by the LEP person 
who is being assisted; \12\
---------------------------------------------------------------------------

    \12\ Many languages have ``regionalisms,'' or differences in 
usage. For instance, a word that night be understood to mean 
something in Spanish for someone from Cuba might not be so 
understood by someone from Mexico. In addition, because there may be 
languages that do not have an appropriate direct interpretation of 
some programmatic terms, the interpreter should be so aware and be 
able to provide the most appropriate interpretation. The interpreter 
should likely make the recipient aware of the issue, and the 
interpreter and recipient can then work to develop a consistent and 
appropriate set of descriptions of these terms in that language so 
that these terms can be used again, when appropriate.
---------------------------------------------------------------------------

     Understand and follow confidentiality and impartiality 
rules to the same extent as the recipient for whom he or she is 
interpreting; and
     Understand and adhere to their role as interpreters, 
without deviating into a role as counselor, advisor, or other 
inappropriate roles.
    Some recipients might have additional self-imposed requirements for 
interpreters. Where individual rights depend on precise, complete, and 
accurate interpretation or translations, particularly where ambiguous, 
incomplete, or inaccurate information can result in the denial or 
reduction of services or benefits, the use of certified interpreters is 
strongly encouraged.\13\ Where such proceedings are lengthy, the 
interpreter will likely need breaks, and team interpreting might be 
appropriate to ensure accuracy and to prevent errors caused by mental 
fatigue of interpreters.
---------------------------------------------------------------------------

    \13\ For those languages in which no formal accreditation or 
certification exist, recipients should consider a formal process for 
establishing the credentials of the interpreter.
---------------------------------------------------------------------------

    While quality and accuracy of language services is critical, the 
quality and accuracy of language services is nonetheless part of the 
appropriate mix of appropriate LEP services. The quality and accuracy 
of language services in a hearing regarding the reduction of benefits, 
for example, must be extraordinarily high, while the quality and 
accuracy of language services in a voluntary recreational program might 
not need to meet the same exacting standards.
    Finally, when interpretation is needed and is reasonable, it should 
be provided in a timely manner. To be effective, language assistance 
should be timely. While there is no single definition for ``timely'' 
that is 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 or benefit at issue or the imposition of an undue burden 
on or delay in the provision of important information rights, benefits, 
or services to the LEP person. For example, when the timelines of 
information, benefits, or services is important, such as with certain 
activities related to various types of emergency assistance by way of 
nutrition or housing services, or emergency loans, grants, etc., a 
recipient would likely not be providing meaningful access if it had one 
bilingual staffer available one day a week to

[[Page 13986]]

provide language assistance. 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 information, 
services, or benefits 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, secretaries, program specialists, 
and/or program aides, with staff who are bilingual and competent to 
communicate directly with LEP persons in their language. If bilingual 
staffs 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 might conflict with the role of an 
interpreter (for instance, a bilingual program specialist would 
probably not be able to perform effectively the role of an interpreter 
in a benefits hearing and also carry out his or her duties to 
administer requirements of the program or activity at the same time, 
even if the program specialist were a qualified interpreter). Effective 
management strategies, including any appropriate adjustments in 
assignments and protocols for using bilingual staff, can ensure that 
bilingual staffs 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 can 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 can 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 interpreters 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 can 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 or activity that might 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 documents prior to the discussion and any 
logistical problems that 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 can provide a cost-
effective supplemental language assistance strategy under appropriate 
circumstances. These types of volunteers can 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, 
services, or benefits of the program or activity and who 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 be knowledgeable 
about applicable confidentiality and impartiality rules. Recipients 
should consider formal arrangements with community-based organizations 
that provide volunteers to address these concerns and help ensure that 
services are readily available.
    Use of Family Members, Friends, or Others 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, or other person of their choosing) 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, or other person 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 
members, friends, 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 regulatory interest in accurate 
interpretation.
    In many circumstances, family members (especially children), 
friends, or others identified by LEP persons, are not competent to 
provide quality and accurate interpretations. Issues of 
confidentiality, privacy, or conflict of interest may also arise. LEP 
persons may feel uncomfortable revealing or describing sensitive, 
confidential, or potentially embarrassing family, medical, or financial 
information to a family member, friend, or member of the local 
community. In addition, such informal interpreters may have a personal 
connection to the LEP person or an undisclosed conflict of interest. 
For these reasons, when oral language services are necessary, 
recipients should generally offer competent interpreter services free 
of cost to the LEP person. For USDA recipient programs and activities, 
this is particularly true in an administrative hearing or in situations 
in which health, safety, or access to sustenance or important benefits 
and services are at stake, or when credibility and accuracy are 
important to protect an LEP person's rights or access to important 
benefits and services. An example of such a case is when an LEP 
recipient applies for food stamps or a low-interest farm loan. The 
recipient should not rely on friends or family members of the LEP 
recipient or other informal interpreters.

[[Page 13987]]

    While issues of competency, confidentiality, and conflict of 
interest in the use of family members (especially children), friends, 
or other informal interpreters often make their use inappropriate, 
their use 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 tour of a recipient's farmland 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. 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 are critical for, adjudicatory, or legal reasons, or where 
the competency of the LEP person's interpreter is not established, a 
recipient might decide to provide its own, independent interpreter, 
even if an LEP person wants to use his or her own interpreter as well. 
Extra caution should be exercised when the LEP person chooses to use a 
minor as the interpreter. While the LEP person's decision should be 
respected, there may be additional issues of competency, 
confidentiality, or conflict of interest when the choice involves using 
children as interpreters.
    The recipient should ensure that the LEP person's choice is 
voluntary, 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 could provide a competent interpreter at no cost (to 
the LEP person).
    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, but are not limited to:

--Applications to participate in a recipient's program or activity or 
to receive recipient benefits or services;
--Consent forms, complaint forms, intake forms, letters containing 
important information related to participation (such as cover letters 
outlining conditions of participation in a loan program or committee 
election);
--Written notices pertaining to eligibility requirements, rights, 
losses, denials, decreases in benefits or services, foreclosures, or 
terminations of services or benefits and/or the right to appeal such 
actions;
--Notices advising LEP persons of the availability of free language 
assistance;
--Written tests that do not assess English language proficiency, but 
test competency for a particular license, job, or skill for which 
knowing English is not required;
--Outreach materials; and
--Any documents that require a response from applicants, beneficiaries, 
and other participants.

    Whether or not a document (or the information it solicits) is 
``vital'' may depend upon the importance of the program or activity, 
information, encounter, service, or benefit 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 voluntary credit management courses should not generally be 
considered vital (so long as they are not a prerequisite to obtaining 
or maintaining better credit), whereas, applications for rural rental 
housing would 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 exist may 
effectively deny LEP persons 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 persons 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

[[Page 13988]]

analysis. Because translation is a one-time expense, consideration 
should be given to whether the up-front costs of translating a document 
(as opposed to oral interpretation) should be amortized over the likely 
life span 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'' which 
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 a recipient's program or 
activity, the translation of the written materials is not necessary. 
Other ways of providing meaningful access, such as effective oral 
interpretation of certain vital documents, might be acceptable under 
such circumstances.

    Safe Harbor Provisions. The following actions will be considered 
strong evidence of compliance with the recipient's written-translation 
obligations:
    a. The USDA recipient provides written translations of vital 
documents for each eligible LEP language group that constitutes 5 
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 5 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 persons through competent oral interpreters 
where oral language services are needed and are reasonable. For 
example, recipients should, where appropriate, ensure that program 
rules have been explained to LEP program participants prior to taking 
adverse action against them.
    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, though certification or accreditation may not always be 
possible or necessary.\14\ 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.''
---------------------------------------------------------------------------

    \14\ 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.
---------------------------------------------------------------------------

    Recipients should ensure that translators understand the expected 
reading level of their audiences 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.\15\ 
Community organizations may be able to help consider whether a document 
is written at a good level for the audience. Likewise, consistency in 
the words and phrases used to translate terms of art, or technical 
concepts helps avoid confusion by LEP persons and may reduce costs. 
Providing translators with examples of previous accurate translations 
of similar material by the recipient, other recipients, or Federal 
agencies may be helpful.
---------------------------------------------------------------------------

    \15\ For instance, there may be languages that do not have an 
appropriate direct translation of some program-specific terms of art 
or technical concepts and the translator should be able to provide 
an appropriate translation. The translator also should likely make 
the recipient aware of this. Recipients can work with translators to 
develop a consistent and appropriate set of descriptions of these 
terms. 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 technical concepts. Creating or using 
already-created glossaries of commonly used terms may be useful for 
LEP persons and translators and cost-effective for the recipient. 
Providing translators with examples of previous translations of 
similar material by the recipient, other recipients, or Federal 
agencies may be helpful.
---------------------------------------------------------------------------

    While quality and accuracy of translation services is critical, the 
quality and accuracy of translation services is nonetheless part of the 
appropriate mix of LEP services. For instance, documents that are 
simple and have no legal or other negative consequence for LEP persons 
may be translated by individuals who are less skilled than those who 
translate documents with legal or other important consequences. The 
permanent nature of written translations, however, imposes additional 
responsibility on the recipient to ensure that the quality and accuracy 
permit meaningful access by LEP persons.

VI. 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 USDA recipients, 
such as recipients serving very few LEP persons and recipients with 
very limited resources, may choose not to develop a written LEP plan.

[[Page 13989]]

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 Persons Who Need Language Assistance

    The first two factors in the four-factor analysis are an assessment 
of the number of proportion of LEP persons eligible to be served or 
encountered and the frequency of encounters. This requires recipients 
to identify LEP persons with whom they have contact.
    One way to determine the language of communication is to use 
language identification cards (or ``I speak cards''), which invite LEP 
persons to identify their language needs to staff. Such cards, for 
instance, might say ``I speak Spanish'' in both Spanish and English, 
``I speak Vietnamese'' in both English and Vietnamese, etc. To reduce 
costs of compliance, the Federal Government has made a set of these 
cards available on the Internet. The Census Bureau ``I speak card'' can 
be found and downloaded at https://www.usdoj.gov/crt/cor/13166.htm. When 
records are normally kept of past interactions with members of the 
public, the language of the LEP person can be included as part of the 
record. In addition to helping employees identify the language of LEP 
persons they encounter, this process will help in future applications 
of the first two factors of the four-factor analysis. In addition, 
posting notices in commonly encountered languages notifying LEP persons 
of language assistance will encourage them to self-identify.

(2) Language Assistance Measures

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

--Types of language services available;
--How staff can obtain those services;
--How to respond to LEP callers;
--How to respond to written communications from LEP persons;
--How to respond to LEP persons who have in-person contact with 
recipient staff; and
--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; and
--Staff having contact with the public is trained to work effectively 
with in-person and telephone interpreters.

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

(4) Providing Notice to LEP Persons

    Once a recipient has decided, based on the four factors that it 
will provide language services, it is important to let LEP persons know 
that those services are available and they are free of charge. 
Recipients should provide this notice in a language that 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 important 
programs, activities, services, or benefits provided by USDA 
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 and should explain how to get the 
language help; \16\
---------------------------------------------------------------------------

    \16\ 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 recipient. 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 ``tagged'' onto 
the front of common documents;
--Working with community-based organizations and other stakeholders to 
inform LEP persons 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 benefits 
and how to get them; and
--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, 
activities, services, and benefits need to be made accessible for LEP 
persons, 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

[[Page 13990]]

additional resources, and the costs imposed;
--Whether existing assistance is meeting the needs of LEP persons;
--Whether staff know and understand the LEP plan and how to implement 
it; and
--Whether identified sources for assistance are still available and 
viable.

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

VII. 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 USDA through its 
regulations at 7 CFR part 15, Departmental Regulation 4330-2, 
``Nondiscrimination in Programs and Activities Receiving Federal 
Financial Assistance From USDA,'' and Departmental Manual 4330-1, 
``Procedures for Processing Discrimination Complaints and Conducting 
Civil Rights Compliance Reviews in USDA Assisted Programs and 
Activities.'' These documents contain USDA requirements and procedures 
for discrimination complaints processing, complaint investigations, 
compliance reviews, efforts to secure voluntary compliance, and 
technical assistance.
    USDA 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, USDA will inform the recipient in writing of this 
determination, including the basis for the determination. USDA uses 
voluntary mediation to resolve most complaints. However, if a case is 
fully investigated and results in a finding of noncompliance, USDA 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 necessary. If the matter cannot 
be resolved informally, USDA must secure compliance through the 
termination of Federal assistance after the USDA recipient has been 
given an opportunity for an administrative hearing and/or by referring 
the matter to DOJ to seek injunctive relief or pursue other enforcement 
proceedings. USDA engages in voluntary compliance efforts and provides 
technical assistance to recipients at all stages of an investigation. 
During these efforts, USDA 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, USDA'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 persons, USDA acknowledges that the 
implementation of a comprehensive system to serve LEP persons 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, USDA 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 might reasonably require a series of implementing 
actions over a period of time. However, in developing any phased 
implementation schedule, USDA recipients should ensure that the 
provision of appropriate assistance for significant LEP populations or 
with respect to programs or activities having a significant impact on 
important benefits, and services, are addressed first. Recipients are 
encouraged to document their efforts to provide LEP persons with 
meaningful access to federally assisted programs and activities.

VIII. Effect on State and Local Laws

    Some State and local laws might identify language access 
obligations/requirements. Recipients might meet these obligations, as 
long as they do not conflict with or set a lower standard than is 
required under Title VI and Title VI regulations. Finally, as noted 
above, some recipients operate in a jurisdiction 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 
benefits and services to persons with limited English proficiency.

    Dated: January 30, 2012.
Thomas J. Vilsack,
Secretary.
[FR Doc. 2012-4377 Filed 3-7-12; 8:45 am]
BILLING CODE 3410-9R-P