Guidance to Federal Financial Assistance Recipients Regarding the Title VI Prohibition Against National Origin Discrimination Affecting Persons With Limited English Proficiency, 70771-70784 [2014-27960]
Download as PDF
70771
Rules and Regulations
Federal Register
Vol. 79, No. 229
Friday, November 28, 2014
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF AGRICULTURE
7 CFR Part 15
[OES–2014–0002]
RIN 051–AA70
Guidance to Federal Financial
Assistance Recipients Regarding the
Title VI Prohibition Against National
Origin Discrimination Affecting
Persons With Limited English
Proficiency
Office of the Assistant
Secretary for Civil Rights, USDA.
ACTION: Significant final guidance.
AGENCY:
The U.S. Department of
Agriculture (USDA) is publishing the
final 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: This final guidance is effective
November 28, 2014.
FOR FURTHER INFORMATION CONTACT: For
further information contact Anna G.
Stroman, Chief, Policy Division,
Telephone (202) 205–5953; Fax (202)
690–2345.
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
tkelley on DSK3SPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
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
subrecipients (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 final
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 may take to ensure that LEP
persons have meaningful access to
Federally assisted programs and
activities and provides examples of
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
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 may 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.
Comments on Proposed Guidance
On March 8, 2012, USDA published a
proposed final Guidance in the Federal
Register which resulted in 18 public
interest groups/firms responding with
over 160 comments and
recommendations. The comments and/
or the recommendations are addressed
as follows:
1. Recipient LEP Plan
We received five comments
recommending that the Guidance
should require recipients to develop an
LEP plan. USDA is cognizant of the
value of written LEP plans in
documenting a recipient’s compliance
with its obligation to ensure meaningful
access by LEP persons, and in providing
a framework for the provision of
reasonable and necessary language
assistance to LEP persons. USDA is also
aware of the related training,
operational, and planning benefits most
recipients would derive from the
generation and maintenance of an
updated written language assistance
plan for use by its employees. In the
large majority of cases, the benefits
flowing from a written language
assistance plan have caused or will
likely cause recipients to develop, with
E:\FR\FM\28NOR1.SGM
28NOR1
70772
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
varying degrees of detail, such written
plans. Even small recipients with
limited contact with LEP persons would
likely benefit from having a plan in
place to assure that, when the need
arises, staff have a written plan to turn
to even if it addresses only how to
access a telephonic or community-based
interpretation service when determining
what language services to provide and
how to provide them.
However, the fact that the vast
majority of USDA’s recipients already
have or will likely develop a written
LEP plan to reap its many benefits does
not necessarily mean that every
recipient, however small its staff,
limited its resources, or focused its
services, will realize the same benefits
and thus must follow an identical path.
Without clear evidence suggesting that
the absence of written plans for every
recipient is impeding accomplishment
of the goal of meaningful access, USDA
elects at this juncture to strongly
recommend but not require written
language assistance plans. USDA
stresses in this regard that neither the
absence of a requirement of written LEP
plans in all cases nor the election by an
individual recipient against drafting a
plan obviates the underlying obligation
on the part of each recipient to provide,
consistent with Title VI, the Title VI
regulations, and this Guidance,
reasonable, timely, and appropriate
language assistance to the LEP
populations each serves.
One commentator recommended that
the Guidance should require community
involvement in developing the
recipients’ written LEP plans. The
Guidance currently contains language to
encourage recipients to involve the
community in developing their written
LEP plans. No additional language is
being added to address this
recommendation.
tkelley on DSK3SPTVN1PROD with RULES
2. USDA LEP Plan for Conducted
Programs
We received 10 comments
recommending that USDA develop its
own LEP Plan for Federally conducted
programs to ensure that it is accessible
in USDA operations. USDA issued its
Departmental Regulation 4330–005,
Prohibition Against National Origin
Discrimination Affecting Persons with
Limited English Proficiency in Programs
and Activities Conducted by U.S.
Department of Agriculture effective June
4, 2013. This Departmental Regulation
functions as USDA’s LEP Plan and is
publicly available at http://
www.ocio.usda.gov/document/
departmental-regulation-4330–005.
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
3. Updating Automated Online Services
We received seven comments
recommending the expansion of online
language assistance services. Some of
the commenters specifically identified
programs providing essential services
like food and shelter to consumers, and
cited the Social Security Web site as an
example. In response to this comment,
USDA added a new subparagraph under
Section VI in the Guidance that
recommends USDA recipients who
provide online communications and
services to customers include in their
LEP plans their strategies for addressing
language access needs. (See Section VI,
No. 5 Ensuring Online Automation
Services).
4. Expansion of Language Beyond
Spanish
We received 10 comments
recommending that recipients translate
outreach material in non-English
languages in addition to Spanish. We
agree that recipients must take into
account the language or languages of
their LEP customers within their
programs and specific locations. Part V
(B) of the Guidance indicates that
considering the four-factor analysis can
be helpful for determining when to
provide language services, including
translating vital written materials into
additional languages. Moreover, the Safe
Harbor Provision in Part V (B) also
supports translation into non-Spanish
languages when the ‘‘LEP language
group 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.’’
Nevertheless, we have added additional
recommendations that recipients post
notices/links regarding the availability
of language assistance services in the
most commonly encountered languages
for their programs and/or areas (See
Section VI, Elements of Effective Plan
on Language Assistance for LEP
Persons, No. 4, Notice to LEP Persons).
5. ‘‘Reasonable’’ Steps
We received six comments stating that
the Guidance standard that requires
recipients to take ‘‘reasonable’’ steps in
providing LEP persons with a
meaningful opportunity to participate in
Federally funded educational programs
is vague. Rather than have recipients
consider how to apply this standard,
commenters recommended that the
standard should clarify that if an
individual is LEP, interpretation should
always be deemed reasonable.
The Guidance provides criteria for
recipients to consider when deciding to
provide language assistance services to
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
LEP individuals. Specifically, the
Guidance provides specific steps that
recipients may take to ensure that LEP
persons have meaningful access by
utilizing a balancing test as a starting
point (See Section IV, ‘‘How Does a
Recipient Determine the Extent of Its
Obligation to Provide LEP Services?’’).
The Guidance further defines the
balancing test as an individualized
assessment that balances the following
four factors:
a. The number or proportion of LEP
persons eligible to be served or likely to
be encountered within the area serviced
by the recipient;
b. The frequency with which LEP
persons come in contact with the
program or activity;
c. The nature and importance of the
program, activity, or service to people’s
lives; and
d. The resources available to the
recipient and costs.
The Guidance states that the fourfactor analysis is a ‘‘starting point’’ to
help a recipient determine when the
recipient is ‘‘required to take reasonable
steps to ensure meaningful access to
their programs and activities by LEP
persons.’’ Given the flexibility of this
standard and its context-specific nature,
it is inherently flexible to adjust for the
various populations, languages,
programs, and activities served.
Consequently, we recognize that there
are some instances when interpreters
constitute reasonable steps but we also
acknowledge that different scenarios
may yield different results, based on the
four-factor analysis.
6. Interpreter and Translation Services
We received five comments on the use
of interpreter and translation services.
Specifically, the comments received
indicated that the language in the
Guidance should be changed or
strengthened to clearly state that USDAfunded recipients must use qualified
interpreters and provide free interpreter
services to all LEP persons. The
commenters also noted that vital
documents must also be translated by
qualified translators. We believe that the
Guidance addresses the issue of
qualifications adequately under
‘‘Competence of Interpreters (See
Section A ‘‘Oral Language Services’’)
and that stronger language is not needed
nor added. However, to guarantee that
recipients ensure the competency of the
language service provider, Office of the
Assistant Secretary for Civil Rights
(OASCR) shall recommend that all
recipients include their strategy for
utilizing competent and impartial
interpreters and translators in the LEP
plans.
E:\FR\FM\28NOR1.SGM
28NOR1
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
Two commenters focused on the use
of children as interpreters. Both
commenters indicated that the use of
children should not be allowed. The
Guidance, in accordance with DOJ
requirements, cautions that ‘‘in many
circumstances, family members,
especially children, are not competent
to provide quality and accurate
interpretations, as issues of
confidentiality, privacy, or conflict of
interest may arise.’’ This language
makes clear that children may only be
used under the most exigent of
circumstances and only as a last-resort
alternative. To provide further clarity on
this issue, we have modified the
Guidance’s language to note that
reliance on children is discouraged
unless it is an emergency situation that
is not reasonably foreseeable. (See
Section V ‘‘Selecting Language
Assistance Services, Subsection, Use of
Family Members, Friends or Others as
Interpreters.’’)
tkelley on DSK3SPTVN1PROD with RULES
7. Considering Low Literacy
We received six comments
recommending that written
communication by the recipient (such
as online translations and program
applications) be written so as to be
understood by individuals with low
literacy (such as language directed to a
6th grade level). No change was made as
USDA’s current policy follows the
Federal plain written language
standards, which includes taking the
audience’s current level of knowledge
into account. (See section V, ‘‘Language
Assistance Services and Competence of
Translators’’) to ensure that individuals
with low literacy level can understand
written material.
8. Using Other Regulations To Set
Minimum Thresholds for Translations
and Interpretations
We received nine comments
recommending that the Department
consider using regulations or subregulatory guidance to set specific
minimum thresholds for translation and
interpretation in particular programs
such as the Supplemental Nutrition
Assistance Program; the Special
Supplemental Nutrition Program for
Women, Infants, and Children; and the
Child Nutrition Program. No changes
were made since the Guidance offers a
fact-dependent four-factor assessment to
determine the extent of a recipient’s
obligation to provide LEP services.
Moreover, with respect to translation,
the Guidance outlines Safe Harbor
Provisions, actions that are considered
strong evidence of compliance with the
recipient’s written-translation
obligation. (See section IV, ‘‘How Does
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
a Recipient Determine the Extent of Its
Obligation to Provide LEP Services’’ and
section V ‘‘Selecting Language
Assistance Services.’’) However, to
ensure that this issue is taken into
further consideration, OASCR will
encourage USDA agencies to consider
this recommendation in their work with
recipients, since the recipient’s LEP
plan would be the proper vehicle to set
specifics on the thresholds for
translation and interpretation stated in
the Guidance.
9. Require Data Collection
We received 10 comments from
various organizations on the need for
data collection, as well as the need to
track and monitor receipt of translation
requests. The commenters specifically
recommended that recipients be
required to collect language preference
data on their LEP beneficiaries and
report this data to USDA on at least an
annual basis.
In response to the comments received,
while language preference data is
collected in connection with some
assisted programs, making language
preference data collection an assisted
program requirement across-the-board
would involve a mandatory requirement
under a review process beyond the
Agency. However, we do note that
effective recipient LEP plans often
incorporate a system for tracking and
monitoring the number of LEP persons
served, language preferences,
translations provided, and other data
points. But not mandating data
collection for all programs does not
mean that such data cannot be required
as necessary. Federal regulations, such
as 28 CFR 42.406, make clear that data
collection requests made during the
course of compliance reviews can be
broad and provide ‘‘for the collection of
data and information from applicants
for and recipients of federal assistance
sufficient to permit effective
enforcement of title VI.’’
10. ‘‘Summarization’’ as Appropriate
Mode of Interpretation
We received one comment on the use
of ‘‘summarization’’ as an appropriate
mode of interpretation. The commenter
expressed concern for the competence
of interpreters and their ability to
summarize when performing
interpretations. The commenter
indicated that interpreters should
refrain from summarizing because it
allowed for the interpreter to decide or
evaluate on what is and what is not
relevant. After careful consideration of
the comment received, no change will
be made. However, we recognize that
summarization may not always be the
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
70773
ideal mode of interpretation when
complete and accurate renditions of the
communication are necessary. In
keeping with the DOJ LEP Guidance, we
place summarization within the context
of assessing the competency of an
interpreter. The DOJ Guidance states
that recipients should ensure that
interpreters ‘‘demonstrate[s] proficiency
in an ability to communicate
information accurately in both English
and in the other languages and identify
and employ the appropriate mode of
interpreting (e.g., consecutive,
simultaneous, summarization, or sight
translation).’’ In situations where
complete and accurate interpretation is
necessary, a competent interpreter will
assist the recipient in selecting the most
appropriate mode of interpreting that
will yield the most accurate
information.
11. Definition of LEP
We received three comments
recommending that we provide a clearer
definition of LEP in the Guidance
because the language contained in the
‘Background’ section of the Guidance
states ‘‘If these people have a limited
ability to read, write, speak, or
understand English, they ‘are’ limited
English proficient or ‘LEP.’ ’’ The
commenters believed that this language
appears to contradict the definition of
LEP in Section III, which states
‘‘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’ (Who Is a
Limited English Proficient Person?).’’ In
order to have consistent and valid
language throughout both sections, the
language in Section III, which defines
LEP, has been revised to delete ‘‘can be’’
and inserted with ‘are’ limited English
proficient, or ‘LEP’.
12. Require Meaningful Notice of Rights
to Language Services
We received three comments
recommending that USDA and subagencies strengthen the Guidance’s
language in regards to informing LEP
persons of their right to language
services. Commenters recommended
that using multilingual telephone voice
mail prompts or menus would be one
easy way of informing LEP persons of
their right to language services.
The Guidance addresses this issue by
recommending telephone voice mail
menus, among other approaches, when
providing notice to LEP persons about
the availability of language assistance
services (See Section VI, part 4
‘‘Providing Notice to LEP Persons’’).
Therefore, no change was made.
E:\FR\FM\28NOR1.SGM
28NOR1
70774
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
13. Include Existing LEP Regulations in
Legal Authority
We received one comment
recommending that the Guidance
include existing regulations that
establish mandatory legal requirements.
In response to this comment, no
change was made as the Guidance
includes reference to existing
regulations. USDA makes its programs
and subprograms aware of their
obligations and requirements to comply
with Title VI of the Civil Rights Act of
1964, 42 U.S.C. 2000d, Title VI
regulations, and program-specific
regulations as noted in the Guidance in
the Background on page 9 and in the
Legal Authority on pages 11–15e.
tkelley on DSK3SPTVN1PROD with RULES
14. Require Adequate Signs Regarding
Critical LEP Services
We received one comment, which
notes that the language in the guidance
is inconsistent regarding posting notices
in places that LEP individuals
commonly encounter. According to the
commenter, the current language should
be made consistent with 7 CFR 272.6(f)
and 7 CFR 272.4(b), which require
adequate signs in the offices with
respect to information critical to LEP
services.
No change was made to the Guidance
in reference to this comment. Both 7
CFR 272.6(f) and 7 CFR 272.4(b)
regulations refer to requirements set
forth for participating agencies in the
Food and Nutrition Service Agency’s
programs, such as the Supplemental
Nutrition Assistance Program (SNAP).
Specifically, 7 CFR 272.6, paragraph (f)
‘‘Public Notification’’ requires State
agencies to ensure that all offices
involved in administering the SNAP
program must publicly display the
nondiscrimination poster. 7 CFR 272.4,
paragraph (b) ‘‘Bilingual Requirements’’
requires State agencies to provide
bilingual program information,
certification materials, and staff or
interpreters to households that speak
the same non-English language and that
do not have an adult(s) fluent in English
as a second language. Both of these
issues are adequately addressed in the
Guidance. The Guidance specifically
recommends that recipients (which, in
this case, would be State agencies)
ensure that adequate signage is posted
in the offices and all information for the
public be translated. The Guidance
further defines the importance of these
issues as stated in the following
language contained in Section VI,
Elements of an Effective Language
Assistance Plan for LEP Persons:
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
Providing Notice to LEP Persons
16. Conduct Roundtable and Follow-up
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 that 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 and noting
the availability of language assistance
services on recipient Web sites. 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
(including Web sites) 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.1
We received one comment
recommending follow-up roundtable
discussions to solicit further
recommendations. USDA acknowledges
the importance of gathering feedback
and following up on recommendations
gathered from roundtable discussions.
However, no further roundtable
discussions are warranted in advance of
issuing this final Guidance. Instead,
OASCR will encourage USDA agencies
to conduct roundtable discussions with
the community as a strategy to inform
LEP individuals of the resources
available to them, as a means to
determine the most critical outreach
material to translate, as well as a
mechanism to obtain feedback on an
LEP plan from the community. This is
in keeping with our Guidance’s
emphasis on relying on communitybased organizations to provide
important feedback to ensure LEP
individuals have meaningful access.
15. Outreach to LEP Persons
We received two comments
recommending that in addition to
developing procedures to serve LEP
individuals, it is equally important that
LEP community members be made
aware of the policies that are in place to
serve the LEP population through radio
programs, ethnic media, and other news
outlets.
USDA agrees with the importance of
finding effective methods of
disseminating this information and we
believe this has been adequately
addressed in the Guidance. The
Guidance notes that an effective
language access plan includes
information about notifying LEP
individuals about the availability of
language assistance services. This can
include ‘‘providing notices on nonEnglish language radio and television
stations about the available language
assistance services and benefits and
how to get them.’’ (See Section VI, Part
4.) Therefore, no change was made to
the Guidance and USDA agencies are
encouraged to work with recipients to
ensure that this issue is addressed in
recipient LEP plans.
1 The Social Security Administration has made
such signs available at http://www.ssa.gov/
multilanguage/langlist1.htm. These signs could, for
example, be modified for recipient use.
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
17. Appoint a Language Access
Coordinator
We received one comment
recommending that each recipient
appoint a person to handle LEP issues
as they arise, review the LEP plan
annually, work toward a more effective
implementation of the policy, organize
necessary trainings, etc. We believe that
an LEP Coordinator would be useful for
recipients in ensuring that all aspects of
the LEP Guidance are being carried out.
However, the appointment of this
position is based on the funding and
hiring responsibilities of the recipients
and not USDA. USDA is committed to
ensuring that all aspects of the Guidance
are carried out effectively and
efficiently, and will, therefore,
recommend to recipients the usefulness
of designating a Language Access
Coordinator; but we do not have the
authority to require that they designate
one. Therefore, no change was made.
Nonetheless, the importance of
designating a Language Access
Coordinator cannot be emphasized
enough, and such an appointment will
greatly increase the likelihood of
effective implementation and
maintenance of a language access plan.
18. Broaden Monitoring and
Enforcement Activities
We received three comments asking
that USDA broaden its monitoring and
enforcement activities to ensure that
funding recipients meet their Title VI
language access obligations. We agree
that USDA should closely monitor the
performance of recipients it funds and,
where appropriate, take enforcement
E:\FR\FM\28NOR1.SGM
28NOR1
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
action against those entities that fail to
meet their language assistance
obligations. This oversight
responsibility is addressed in the LEP
Guidance under Section VII, which
states that ‘‘the requirement to provide
meaningful access to LEP persons is
enforced and implemented by USDA
through its regulations at 7 CFR’’ In
addition, USDA will monitor the
effectiveness of recipients LEP programs
through its compliance reviews.
Therefore, no change was made.
tkelley on DSK3SPTVN1PROD with RULES
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 another Indo-European
language,2 and almost 7 million speak
an Asian or Pacific Island language at
home. If these people have 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.3
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
available 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 in
parallel with language assistance
services. ESL courses can serve as an
2 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, Gujarathi, Punjabi,
Urdu, Greek, Baltic and Iranian languages.
3 Other languages include Hungarian, Arabic,
Hebrew, languages of Africa, native North American
languages, including the American Indian and
Alaska native languages; and some indigenous
languages of Central and South America.
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
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.4
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 the USDA Title VI
regulations against national origin
discrimination, 7 CFR part 15. 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.5 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.
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
4 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.
5 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.
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
70775
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 those
individuals face challenges
communicating in English. This is of
particular importance because, in many
cases, LEP persons 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 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 costsaving 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, http://
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 do not believe this is an
accurate reading of the decision as the
Supreme Court, in Sandoval, addressed
whether a private right of action existed
to enforce a DOJ regulation promulgated
pursuant to Title VI, not the validity of
those regulations themselves. The
E:\FR\FM\28NOR1.SGM
28NOR1
70776
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
tkelley on DSK3SPTVN1PROD with RULES
regulation at issue, 28 CFR 42.104(b)(2),
prohibited recipients of federal funding
from utilizing criteria which had a
discriminatory effect. The plaintiffs,
who were non-English speakers,
challenged a State policy of
administering driver’s license
examinations exclusively in English on
the ground that the policy had a
discriminatory effect on non-English
speakers and, consequently, violated 28
CFR 42.104(b)(2). The Court concluded
that the regulation was not enforceable
through a private right of action and,
thus, held that the disparate-impact
regulation at issue, promulgated under
Title VI, did not give rise to private
rights of action. See Sandoval, 532 U.S.
at 293. The Court, however, did not
undermine the substance of other
regulatory requirements and we will
continue to follow the Court’s approach.
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. Section
2000d, states that 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
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
areas where a substantial number of
potentially eligible households speak a
language other than English.
USDA regulations prohibit
discrimination in all of its federally
assisted and conducted programs.
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
Recipients may not, on the grounds of
race, color, or national origin, deny an
individual any service, financial aid or
other benefit provided under the
program, deny an opportunity to
participate in the program through the
provisions of services, or subject or
restrict an individual to segregation or
separate treatment in any matter related
to their receipt of service, financial aid,
or other benefit under the program.
Please see 7 CFR 15.3(b)(1)–(2) for
additional information.
In addition, USDA regulations
implementing the Food Stamp Act of
1977 require that the State agency shall
provide bilingual program information
and certification materials, and staff or
interpreters. See 7 CFR 15.3(b)(6)(i)–(ii),
for additional information.
In Lau v. Nichols, 414 U.S. 563 (1974),
the Supreme Court concluded that Title
VI and its implementing regulations
required a federally funded school
district to ensure that LEP students were
provided with meaningful access to the
district’s educational programs. That
case involved a group of approximately
1,800 public school students of Chinese
origin who did not speak English, and
to whom the school system provided the
same services—an education solely in
English—that it provided to students
who spoke English. The Court held that
by failing to provide LEP Chinesespeaking students meaningful access to
educational programs, the school’s
practices violated Title VI’s prohibition
against national origin discrimination.
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 ‘‘utilize[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
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
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.6 The Assistant
Attorney General stated that because
Sandoval did not invalidate any Title VI
regulations that proscribe conduct that
has a disparate impact on covered
groups—the types of regulations that
form the legal basis for the part of
Executive Order 13166 that applies to
federally assisted programs and
activities—the Executive Order remains
in force.
This guidance 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.
6 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.
E:\FR\FM\28NOR1.SGM
28NOR1
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
tkelley on DSK3SPTVN1PROD with RULES
II. Who is covered?
USDA regulations require all
recipients of Federal financial assistance
from USDA to provide meaningful
access to LEP persons.7 Federal
financial assistance includes grants,
below-market loans, training, and use of
equipment, donations of surplus
property, and other assistance. Covered
entities include, but are not limited to:
— 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.
Subrecipients likewise are covered
when Federal funds are passed through
from a recipient to a subrecipient.
Coverage extends to a recipient’s
entire program or activity, i.e., to all
parts of a recipient’s operations.8 This is
true even if only one part of the
recipient receives the Federal financial
assistance.9 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.
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.10
III. Who is a limited English proficient
person?
7 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.
8 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.
9 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.
10 Recipients should also be mindful of their
responsibilities under the Americans with
IV. How does a recipient determine the
extent of its obligation to provide LEP
services?
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
Persons who do not speak English as
their primary language and who have a
limited ability to read, write, speak, or
understand English are 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 food stamps 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.
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:
Disabilities Act of 1990 and Section 504 of the
Rehabilitation Act of 1973 in meeting their
obligation to ensure access to LEP individuals with
disabilities.
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
70777
(1) The number or proportion of LEP
persons eligible to be served or likely to
be encountered within the area serviced
by the recipient;
(2) The frequency with which LEP
persons come in contact with the
program or activity;
(3) The nature and importance of the
program, activity, or service to people’s
lives; and
(4) 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
relevant to the public than others and/
or have greater impact on or contact
with LEP persons, and thus may 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 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 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 activity 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
E:\FR\FM\28NOR1.SGM
28NOR1
70778
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
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.
tkelley on DSK3SPTVN1PROD with RULES
Example A: A complaint filed with USDA
alleges that a local food stamp certification
office 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 limitedprofit 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.11 Community
11 The focus of the analysis is on the lack of
English proficiency, not the ability to speak more
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
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.
(2) The Frequency With Which LEP
Persons Come Into Contact With the
Program or Activity.
Recipients should assess, as
accurately as possible, the frequency
with which they have or should have
contact with an LEP person 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 contact
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 person accesses a program or
service on a daily basis, recipient has
greater duties than if the same person’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 person seeks
services under the program in question.
This plan needs 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 or Activity or Service by the
Program.
The more important the information,
service, or benefit provided in a
program or activity, or the greater the
possible consequences of the contact to
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 persons. When using demographic data,
it is important to focus in on the languages spoken
by those who are not proficient in English.
PO 00000
Frm 00008
Fmt 4700
Sfmt 4700
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
may 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. In the same vein, to
avoid serious, negative consequences to
an LEP person, a recipient must also
determine the appropriate media or
format that will reach the target LEP
population and does not result in a
delay in providing information on a
program, service, or benefit. 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.
(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 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, 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
E:\FR\FM\28NOR1.SGM
28NOR1
tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
formalized use of qualified community
volunteers, for example, may help
reduce costs.12 Recipients should
carefully explore the most cost-effective
means of delivering competent and
accurate language services before
limiting services due to resource
concerns. Large entities and those
entities serving a significant number or
proportion of LEP persons should
ensure that their resource limitations are
well-substantiated before using this
factor as a reason to limit language
assistance. Such recipients may find it
useful to be able to articulate, through
documentation or in some other
reasonable manner, their process for
determining that language services
would be limited based on resources or
costs. This is not to suggest that smaller
entities are immune from the
requirement to provide meaningful
access. Any recipient of federal
financial assistance must be sure that
any claim of resource limitations is well
substantiated.
The 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
person 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 social service recipient
having a service area with a significant
Hispanic LEP population may 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
may be circumstances where the
importance and nature of the activity
and number or proportion and
frequency of contact with LEP persons
may be low and the costs and resources
12 Small recipients with limited resources may
find that entering into a bulk telephonic
interpretation service contract will prove cost
effective.
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
needed to provide language services
may be high—such as in the case of a
voluntary general public tour of a
recreational facility in which prearranged language services for the
particular service may not be necessary.
All recipients must provide meaningful
access to all their programs. However,
the four-factor analysis recognizes that
there may be gradations of import
concerning certain activities that will
lessen the burden on a recipient in
certain unique situations. 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. 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,
PO 00000
Frm 00009
Fmt 4700
Sfmt 4700
70779
simultaneous, summarization, or sight
translation);
— Have knowledge in both languages of
any specialized terms or concepts
peculiar to the recipient’s program or
activity and of any particularized
vocabulary and phraseology used by
the LEP person who is being
assisted; 13
— 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 may 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
may result in the denial or reduction of
services or benefits, the use of certified
interpreters is strongly encouraged.14
Where such proceedings are lengthy, the
interpreter will likely need breaks and
team interpreting may be appropriate to
ensure accuracy and to prevent errors
caused by mental fatigue of interpreters.
While quality and accuracy of
language services is critical, the quality
and accuracy of language services is
nonetheless part of the appropriate mix
of LEP services required. The quality
and accuracy of language services in 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 may not
need to meet the same exacting
standards.
Finally, when interpretation is
needed, it should be provided in a
timely manner. 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
13 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 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
that can be used again, when appropriate.
14 For those languages in which no formal
accreditation or certification exists, recipients
should consider a formal process for establishing
the credentials of the interpreter.
E:\FR\FM\28NOR1.SGM
28NOR1
tkelley on DSK3SPTVN1PROD with RULES
70780
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
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
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, service, or
benefit 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 staff are
also used to interpret between English
speakers and LEP persons, or to orally
interpret written documents from
English into another language, they
should be competent in the skill of
interpreting. Being bilingual does not
necessarily mean that a person has the
ability to interpret. In addition, there
may be times when the role of the
bilingual employee may conflict with
the role of an interpreter (for instance,
a bilingual 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 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.
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
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 or
activity that may be important parts of
the conversation. Nuances in language
and non-verbal communication can
often assist an interpreter and cannot be
recognized over the phone. Video
teleconferencing may sometimes help to
resolve this issue where necessary. In
addition, where documents are being
discussed, it is important to give
telephonic interpreters adequate
opportunity to review the documents
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, services, or benefits of the
program or activity and can
communicate directly with LEP persons
in their language. Just as with all
PO 00000
Frm 00010
Fmt 4700
Sfmt 4700
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 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.
E:\FR\FM\28NOR1.SGM
28NOR1
tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
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.
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 rare 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, using
children/minors as interpreters may
create additional issues of competency,
confidentiality, or conflict of interest.
Reliance on children is especially
discouraged unless there is an extreme
emergency and no preferable qualified
interpreters are available.
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
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
a competent interpreter at no cost (to the
LEP person).
B. Written Language Services
(Translation)
Translation is the replacement of a
written text from one language (source
language) into an equivalent written text
in another language (target language).
What Documents Should Be
Translated? After applying the fourfactor 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
are not necessarily 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
PO 00000
Frm 00011
Fmt 4700
Sfmt 4700
70781
‘‘vital’’ to the meaningful access of the
LEP populations they serve. Note,
however, that even when a document is
not vital, the recipient still must provide
meaningful access, which may require
sight translation or other language
assistance services.
Classifying a document as vital or
non-vital is sometimes difficult,
especially in the case of outreach
materials like brochures or other
information on rights and services.
Awareness of rights or services is an
important part of ‘‘meaningful access.’’
Lack of awareness that a particular
program, right, or service exists may
effectively deny LEP 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, and
religious or 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 frequentlyencountered 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 more information
about 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
E:\FR\FM\28NOR1.SGM
28NOR1
70782
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
tkelley on DSK3SPTVN1PROD with RULES
written materials into all of those
languages is unrealistic. Although
recent technological advances have
made it easier for recipients to store and
share translated documents, such an
undertaking would incur substantial
costs and require substantial resources.
Nevertheless, well-substantiated claims
of lack of resources to translate all vital
documents into dozens of languages do
not necessarily relieve the recipient of
the obligation to translate those
documents into at least several of the
more frequently encountered languages
and to set benchmarks for continued
translations into the remaining
languages over time. As a result, the
extent of the recipient’s obligation to
provide written translations of
documents should be determined by the
recipient on a case-by-case basis,
looking at the totality of the
circumstances in light of the four-factor
analysis. Because translation is a onetime 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) below 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 writtentranslation 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
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
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.
The four factor analysis must always be
used in evaluating the need for, and
extent of use of, oral interpreters.
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.15
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
15 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.
PO 00000
Frm 00012
Fmt 4700
Sfmt 4700
that the appropriate meaning has been
conveyed. This is called ‘‘back
translation.’’
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.16
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.
While quality and accuracy of
translation services is critical, the
quality and accuracy of translation
services is nonetheless part of assessing
the appropriate mix of LEP services
required. 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
it serves. Recipients have considerable
16 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.
E:\FR\FM\28NOR1.SGM
28NOR1
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
tkelley on DSK3SPTVN1PROD with RULES
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 costeffective 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.
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 six 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 require 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
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
downloaded at www.justice.gov/crt/
about/cor/Pubs/ISpeakCards.pdf. 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 inperson 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.
70783
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 and adequate posting on
Web sites. 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 (including
Web sites) 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; 17
—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-Englishlanguage radio and television stations
about the available language
assistance services and benefits and
how to get them;
—Presentations and/or notices at
schools and religious organizations;
and
—Posting notices/links for language
assistance on recipient agency Web
sites. These should be translated into
the most commonly encountered
(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
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
17 The Social Security Administration has made
such signs available at http://www.ssa.gov/
multilanguage/langlist1.htm. These signs could, for
example, be modified for recipient use.
E:\FR\FM\28NOR1.SGM
28NOR1
70784
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 / Rules and Regulations
languages and tagged on the agency
home pages.
(5) Ensuring Online Automation
Services
USDA recipients who provide online
communications and services to
customers, including but not limited to
online applications, forms and
brochures, must include in their LEP
plan their strategy for ensuring that LEP
individuals have meaningful access to
online automation services.
(6) 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
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.
tkelley on DSK3SPTVN1PROD with RULES
In addition to these six elements,
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
VerDate Sep<11>2014
19:32 Nov 26, 2014
Jkt 235001
part 15, Departmental Regulation 4330–
2, ‘‘Nondiscrimination in Programs and
Activities Receiving Federal Financial
Assistance From USDA,’’ and
Departmental Manual 4330–2,
‘‘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 either 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
PO 00000
Frm 00014
Fmt 4700
Sfmt 9990
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 may
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 may
identify language access obligations/
requirements. Recipients may meet
these obligations, so long as they do not
conflict with or set a lower standard
than is required under Title VI and Title
VI regulations. Moreover, recipients
must also comply as a matter of state
law with higher requirements if those
requirements exist under state laws.
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 nondiscrimination requirements, including
those applicable to the provision of
Federally assisted benefits and services
to persons with limited English
proficiency.
Dated: November 17, 2014.
Thomas J. Vilsack,
Secretary.
[FR Doc. 2014–27960 Filed 11–26–14; 8:45 am]
BILLING CODE 3410–9R–P
E:\FR\FM\28NOR1.SGM
28NOR1
Agencies
[Federal Register Volume 79, Number 229 (Friday, November 28, 2014)]
[Rules and Regulations]
[Pages 70771-70784]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-27960]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 /
Rules and Regulations
[[Page 70771]]
DEPARTMENT OF AGRICULTURE
7 CFR Part 15
[OES-2014-0002]
RIN 051-AA70
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: Significant final guidance.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Agriculture (USDA) is publishing the
final 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: This final guidance is effective November 28, 2014.
FOR FURTHER INFORMATION CONTACT: For further information contact Anna
G. Stroman, Chief, Policy Division, Telephone (202) 205-5953; Fax (202)
690-2345.
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
subrecipients (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 final
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 may 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 may 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.
Comments on Proposed Guidance
On March 8, 2012, USDA published a proposed final Guidance in the
Federal Register which resulted in 18 public interest groups/firms
responding with over 160 comments and recommendations. The comments
and/or the recommendations are addressed as follows:
1. Recipient LEP Plan
We received five comments recommending that the Guidance should
require recipients to develop an LEP plan. USDA is cognizant of the
value of written LEP plans in documenting a recipient's compliance with
its obligation to ensure meaningful access by LEP persons, and in
providing a framework for the provision of reasonable and necessary
language assistance to LEP persons. USDA is also aware of the related
training, operational, and planning benefits most recipients would
derive from the generation and maintenance of an updated written
language assistance plan for use by its employees. In the large
majority of cases, the benefits flowing from a written language
assistance plan have caused or will likely cause recipients to develop,
with
[[Page 70772]]
varying degrees of detail, such written plans. Even small recipients
with limited contact with LEP persons would likely benefit from having
a plan in place to assure that, when the need arises, staff have a
written plan to turn to even if it addresses only how to access a
telephonic or community-based interpretation service when determining
what language services to provide and how to provide them.
However, the fact that the vast majority of USDA's recipients
already have or will likely develop a written LEP plan to reap its many
benefits does not necessarily mean that every recipient, however small
its staff, limited its resources, or focused its services, will realize
the same benefits and thus must follow an identical path. Without clear
evidence suggesting that the absence of written plans for every
recipient is impeding accomplishment of the goal of meaningful access,
USDA elects at this juncture to strongly recommend but not require
written language assistance plans. USDA stresses in this regard that
neither the absence of a requirement of written LEP plans in all cases
nor the election by an individual recipient against drafting a plan
obviates the underlying obligation on the part of each recipient to
provide, consistent with Title VI, the Title VI regulations, and this
Guidance, reasonable, timely, and appropriate language assistance to
the LEP populations each serves.
One commentator recommended that the Guidance should require
community involvement in developing the recipients' written LEP plans.
The Guidance currently contains language to encourage recipients to
involve the community in developing their written LEP plans. No
additional language is being added to address this recommendation.
2. USDA LEP Plan for Conducted Programs
We received 10 comments recommending that USDA develop its own LEP
Plan for Federally conducted programs to ensure that it is accessible
in USDA operations. USDA issued its Departmental Regulation 4330-005,
Prohibition Against National Origin Discrimination Affecting Persons
with Limited English Proficiency in Programs and Activities Conducted
by U.S. Department of Agriculture effective June 4, 2013. This
Departmental Regulation functions as USDA's LEP Plan and is publicly
available at http://www.ocio.usda.gov/document/ departmental-
regulation-4330-005.
3. Updating Automated Online Services
We received seven comments recommending the expansion of online
language assistance services. Some of the commenters specifically
identified programs providing essential services like food and shelter
to consumers, and cited the Social Security Web site as an example. In
response to this comment, USDA added a new subparagraph under Section
VI in the Guidance that recommends USDA recipients who provide online
communications and services to customers include in their LEP plans
their strategies for addressing language access needs. (See Section VI,
No. 5 Ensuring Online Automation Services).
4. Expansion of Language Beyond Spanish
We received 10 comments recommending that recipients translate
outreach material in non-English languages in addition to Spanish. We
agree that recipients must take into account the language or languages
of their LEP customers within their programs and specific locations.
Part V (B) of the Guidance indicates that considering the four-factor
analysis can be helpful for determining when to provide language
services, including translating vital written materials into additional
languages. Moreover, the Safe Harbor Provision in Part V (B) also
supports translation into non-Spanish languages when the ``LEP language
group 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.'' Nevertheless, we have added additional recommendations
that recipients post notices/links regarding the availability of
language assistance services in the most commonly encountered languages
for their programs and/or areas (See Section VI, Elements of Effective
Plan on Language Assistance for LEP Persons, No. 4, Notice to LEP
Persons).
5. ``Reasonable'' Steps
We received six comments stating that the Guidance standard that
requires recipients to take ``reasonable'' steps in providing LEP
persons with a meaningful opportunity to participate in Federally
funded educational programs is vague. Rather than have recipients
consider how to apply this standard, commenters recommended that the
standard should clarify that if an individual is LEP, interpretation
should always be deemed reasonable.
The Guidance provides criteria for recipients to consider when
deciding to provide language assistance services to LEP individuals.
Specifically, the Guidance provides specific steps that recipients may
take to ensure that LEP persons have meaningful access by utilizing a
balancing test as a starting point (See Section IV, ``How Does a
Recipient Determine the Extent of Its Obligation to Provide LEP
Services?''). The Guidance further defines the balancing test as an
individualized assessment that balances the following four factors:
a. The number or proportion of LEP persons eligible to be served or
likely to be encountered within the area serviced by the recipient;
b. The frequency with which LEP persons come in contact with the
program or activity;
c. The nature and importance of the program, activity, or service
to people's lives; and
d. The resources available to the recipient and costs.
The Guidance states that the four-factor analysis is a ``starting
point'' to help a recipient determine when the recipient is ``required
to take reasonable steps to ensure meaningful access to their programs
and activities by LEP persons.'' Given the flexibility of this standard
and its context-specific nature, it is inherently flexible to adjust
for the various populations, languages, programs, and activities
served. Consequently, we recognize that there are some instances when
interpreters constitute reasonable steps but we also acknowledge that
different scenarios may yield different results, based on the four-
factor analysis.
6. Interpreter and Translation Services
We received five comments on the use of interpreter and translation
services. Specifically, the comments received indicated that the
language in the Guidance should be changed or strengthened to clearly
state that USDA-funded recipients must use qualified interpreters and
provide free interpreter services to all LEP persons. The commenters
also noted that vital documents must also be translated by qualified
translators. We believe that the Guidance addresses the issue of
qualifications adequately under ``Competence of Interpreters (See
Section A ``Oral Language Services'') and that stronger language is not
needed nor added. However, to guarantee that recipients ensure the
competency of the language service provider, Office of the Assistant
Secretary for Civil Rights (OASCR) shall recommend that all recipients
include their strategy for utilizing competent and impartial
interpreters and translators in the LEP plans.
[[Page 70773]]
Two commenters focused on the use of children as interpreters. Both
commenters indicated that the use of children should not be allowed.
The Guidance, in accordance with DOJ requirements, cautions that ``in
many circumstances, family members, especially children, are not
competent to provide quality and accurate interpretations, as issues of
confidentiality, privacy, or conflict of interest may arise.'' This
language makes clear that children may only be used under the most
exigent of circumstances and only as a last-resort alternative. To
provide further clarity on this issue, we have modified the Guidance's
language to note that reliance on children is discouraged unless it is
an emergency situation that is not reasonably foreseeable. (See Section
V ``Selecting Language Assistance Services, Subsection, Use of Family
Members, Friends or Others as Interpreters.'')
7. Considering Low Literacy
We received six comments recommending that written communication by
the recipient (such as online translations and program applications) be
written so as to be understood by individuals with low literacy (such
as language directed to a 6th grade level). No change was made as
USDA's current policy follows the Federal plain written language
standards, which includes taking the audience's current level of
knowledge into account. (See section V, ``Language Assistance Services
and Competence of Translators'') to ensure that individuals with low
literacy level can understand written material.
8. Using Other Regulations To Set Minimum Thresholds for Translations
and Interpretations
We received nine comments recommending that the Department consider
using regulations or sub-regulatory guidance to set specific minimum
thresholds for translation and interpretation in particular programs
such as the Supplemental Nutrition Assistance Program; the Special
Supplemental Nutrition Program for Women, Infants, and Children; and
the Child Nutrition Program. No changes were made since the Guidance
offers a fact-dependent four-factor assessment to determine the extent
of a recipient's obligation to provide LEP services. Moreover, with
respect to translation, the Guidance outlines Safe Harbor Provisions,
actions that are considered strong evidence of compliance with the
recipient's written-translation obligation. (See section IV, ``How Does
a Recipient Determine the Extent of Its Obligation to Provide LEP
Services'' and section V ``Selecting Language Assistance Services.'')
However, to ensure that this issue is taken into further consideration,
OASCR will encourage USDA agencies to consider this recommendation in
their work with recipients, since the recipient's LEP plan would be the
proper vehicle to set specifics on the thresholds for translation and
interpretation stated in the Guidance.
9. Require Data Collection
We received 10 comments from various organizations on the need for
data collection, as well as the need to track and monitor receipt of
translation requests. The commenters specifically recommended that
recipients be required to collect language preference data on their LEP
beneficiaries and report this data to USDA on at least an annual basis.
In response to the comments received, while language preference
data is collected in connection with some assisted programs, making
language preference data collection an assisted program requirement
across-the-board would involve a mandatory requirement under a review
process beyond the Agency. However, we do note that effective recipient
LEP plans often incorporate a system for tracking and monitoring the
number of LEP persons served, language preferences, translations
provided, and other data points. But not mandating data collection for
all programs does not mean that such data cannot be required as
necessary. Federal regulations, such as 28 CFR 42.406, make clear that
data collection requests made during the course of compliance reviews
can be broad and provide ``for the collection of data and information
from applicants for and recipients of federal assistance sufficient to
permit effective enforcement of title VI.''
10. ``Summarization'' as Appropriate Mode of Interpretation
We received one comment on the use of ``summarization'' as an
appropriate mode of interpretation. The commenter expressed concern for
the competence of interpreters and their ability to summarize when
performing interpretations. The commenter indicated that interpreters
should refrain from summarizing because it allowed for the interpreter
to decide or evaluate on what is and what is not relevant. After
careful consideration of the comment received, no change will be made.
However, we recognize that summarization may not always be the ideal
mode of interpretation when complete and accurate renditions of the
communication are necessary. In keeping with the DOJ LEP Guidance, we
place summarization within the context of assessing the competency of
an interpreter. The DOJ Guidance states that recipients should ensure
that interpreters ``demonstrate[s] proficiency in an ability to
communicate information accurately in both English and in the other
languages and identify and employ the appropriate mode of interpreting
(e.g., consecutive, simultaneous, summarization, or sight
translation).'' In situations where complete and accurate
interpretation is necessary, a competent interpreter will assist the
recipient in selecting the most appropriate mode of interpreting that
will yield the most accurate information.
11. Definition of LEP
We received three comments recommending that we provide a clearer
definition of LEP in the Guidance because the language contained in the
`Background' section of the Guidance states ``If these people have a
limited ability to read, write, speak, or understand English, they
`are' limited English proficient or `LEP.' '' The commenters believed
that this language appears to contradict the definition of LEP in
Section III, which states ``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'
(Who Is a Limited English Proficient Person?).'' In order to have
consistent and valid language throughout both sections, the language in
Section III, which defines LEP, has been revised to delete ``can be''
and inserted with `are' limited English proficient, or `LEP'.
12. Require Meaningful Notice of Rights to Language Services
We received three comments recommending that USDA and sub-agencies
strengthen the Guidance's language in regards to informing LEP persons
of their right to language services. Commenters recommended that using
multilingual telephone voice mail prompts or menus would be one easy
way of informing LEP persons of their right to language services.
The Guidance addresses this issue by recommending telephone voice
mail menus, among other approaches, when providing notice to LEP
persons about the availability of language assistance services (See
Section VI, part 4 ``Providing Notice to LEP Persons''). Therefore, no
change was made.
[[Page 70774]]
13. Include Existing LEP Regulations in Legal Authority
We received one comment recommending that the Guidance include
existing regulations that establish mandatory legal requirements.
In response to this comment, no change was made as the Guidance
includes reference to existing regulations. USDA makes its programs and
subprograms aware of their obligations and requirements to comply with
Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, Title VI
regulations, and program-specific regulations as noted in the Guidance
in the Background on page 9 and in the Legal Authority on pages 11-15e.
14. Require Adequate Signs Regarding Critical LEP Services
We received one comment, which notes that the language in the
guidance is inconsistent regarding posting notices in places that LEP
individuals commonly encounter. According to the commenter, the current
language should be made consistent with 7 CFR 272.6(f) and 7 CFR
272.4(b), which require adequate signs in the offices with respect to
information critical to LEP services.
No change was made to the Guidance in reference to this comment.
Both 7 CFR 272.6(f) and 7 CFR 272.4(b) regulations refer to
requirements set forth for participating agencies in the Food and
Nutrition Service Agency's programs, such as the Supplemental Nutrition
Assistance Program (SNAP). Specifically, 7 CFR 272.6, paragraph (f)
``Public Notification'' requires State agencies to ensure that all
offices involved in administering the SNAP program must publicly
display the nondiscrimination poster. 7 CFR 272.4, paragraph (b)
``Bilingual Requirements'' requires State agencies to provide bilingual
program information, certification materials, and staff or interpreters
to households that speak the same non-English language and that do not
have an adult(s) fluent in English as a second language. Both of these
issues are adequately addressed in the Guidance. The Guidance
specifically recommends that recipients (which, in this case, would be
State agencies) ensure that adequate signage is posted in the offices
and all information for the public be translated. The Guidance further
defines the importance of these issues as stated in the following
language contained in Section VI, Elements of an Effective Language
Assistance Plan for LEP Persons:
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 that 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
and noting the availability of language assistance services on
recipient Web sites. 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 (including Web sites) 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.\1\
---------------------------------------------------------------------------
\1\ The Social Security Administration has made such signs
available at http://www.ssa.gov/multilanguage/langlist1.htm. These
signs could, for example, be modified for recipient use.
---------------------------------------------------------------------------
15. Outreach to LEP Persons
We received two comments recommending that in addition to
developing procedures to serve LEP individuals, it is equally important
that LEP community members be made aware of the policies that are in
place to serve the LEP population through radio programs, ethnic media,
and other news outlets.
USDA agrees with the importance of finding effective methods of
disseminating this information and we believe this has been adequately
addressed in the Guidance. The Guidance notes that an effective
language access plan includes information about notifying LEP
individuals about the availability of language assistance services.
This can include ``providing notices on non-English language radio and
television stations about the available language assistance services
and benefits and how to get them.'' (See Section VI, Part 4.)
Therefore, no change was made to the Guidance and USDA agencies are
encouraged to work with recipients to ensure that this issue is
addressed in recipient LEP plans.
16. Conduct Roundtable and Follow-up
We received one comment recommending follow-up roundtable
discussions to solicit further recommendations. USDA acknowledges the
importance of gathering feedback and following up on recommendations
gathered from roundtable discussions. However, no further roundtable
discussions are warranted in advance of issuing this final Guidance.
Instead, OASCR will encourage USDA agencies to conduct roundtable
discussions with the community as a strategy to inform LEP individuals
of the resources available to them, as a means to determine the most
critical outreach material to translate, as well as a mechanism to
obtain feedback on an LEP plan from the community. This is in keeping
with our Guidance's emphasis on relying on community-based
organizations to provide important feedback to ensure LEP individuals
have meaningful access.
17. Appoint a Language Access Coordinator
We received one comment recommending that each recipient appoint a
person to handle LEP issues as they arise, review the LEP plan
annually, work toward a more effective implementation of the policy,
organize necessary trainings, etc. We believe that an LEP Coordinator
would be useful for recipients in ensuring that all aspects of the LEP
Guidance are being carried out. However, the appointment of this
position is based on the funding and hiring responsibilities of the
recipients and not USDA. USDA is committed to ensuring that all aspects
of the Guidance are carried out effectively and efficiently, and will,
therefore, recommend to recipients the usefulness of designating a
Language Access Coordinator; but we do not have the authority to
require that they designate one. Therefore, no change was made.
Nonetheless, the importance of designating a Language Access
Coordinator cannot be emphasized enough, and such an appointment will
greatly increase the likelihood of effective implementation and
maintenance of a language access plan.
18. Broaden Monitoring and Enforcement Activities
We received three comments asking that USDA broaden its monitoring
and enforcement activities to ensure that funding recipients meet their
Title VI language access obligations. We agree that USDA should closely
monitor the performance of recipients it funds and, where appropriate,
take enforcement
[[Page 70775]]
action against those entities that fail to meet their language
assistance obligations. This oversight responsibility is addressed in
the LEP Guidance under Section VII, which states that ``the requirement
to provide meaningful access to LEP persons is enforced and implemented
by USDA through its regulations at 7 CFR'' In addition, USDA will
monitor the effectiveness of recipients LEP programs through its
compliance reviews. Therefore, no change was made.
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
another Indo-European language,\2\ and almost 7 million speak an Asian
or Pacific Island language at home. If these people have 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.\3\
---------------------------------------------------------------------------
\2\ 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, Gujarathi, Punjabi, Urdu, Greek,
Baltic and Iranian languages.
\3\ Other languages include Hungarian, Arabic, Hebrew, languages
of Africa, native North American languages, including the American
Indian and 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 available 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 in parallel 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.\4\
---------------------------------------------------------------------------
\4\ 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 the USDA Title VI regulations
against national origin discrimination, 7 CFR part 15. 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.\5\
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.
---------------------------------------------------------------------------
\5\ 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 those individuals face
challenges communicating in English. This is of particular importance
because, in many cases, LEP persons 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
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, http://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 do
not believe this is an accurate reading of the decision as the Supreme
Court, in Sandoval, addressed whether a private right of action existed
to enforce a DOJ regulation promulgated pursuant to Title VI, not the
validity of those regulations themselves. The
[[Page 70776]]
regulation at issue, 28 CFR 42.104(b)(2), prohibited recipients of
federal funding from utilizing criteria which had a discriminatory
effect. The plaintiffs, who were non-English speakers, challenged a
State policy of administering driver's license examinations exclusively
in English on the ground that the policy had a discriminatory effect on
non-English speakers and, consequently, violated 28 CFR 42.104(b)(2).
The Court concluded that the regulation was not enforceable through a
private right of action and, thus, held that the disparate-impact
regulation at issue, promulgated under Title VI, did not give rise to
private rights of action. See Sandoval, 532 U.S. at 293. The Court,
however, did not undermine the substance of other regulatory
requirements and we will continue to follow the Court's approach.
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.
Section 2000d, states that 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 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 areas where a substantial number of potentially
eligible households speak a language other than English.
USDA regulations prohibit discrimination in all of its federally
assisted and conducted programs. Recipients may not, on the grounds of
race, color, or national origin, deny an individual any service,
financial aid or other benefit provided under the program, deny an
opportunity to participate in the program through the provisions of
services, or subject or restrict an individual to segregation or
separate treatment in any matter related to their receipt of service,
financial aid, or other benefit under the program. Please see 7 CFR
15.3(b)(1)-(2) for additional information.
In addition, USDA regulations implementing the Food Stamp Act of
1977 require that the State agency shall provide bilingual program
information and certification materials, and staff or interpreters. See
7 CFR 15.3(b)(6)(i)-(ii), for additional information.
In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court concluded
that Title VI and its implementing regulations required a federally
funded school district to ensure that LEP students were provided with
meaningful access to the district's educational programs. That case
involved a group of approximately 1,800 public school students of
Chinese origin who did not speak English, and to whom the school system
provided the same services--an education solely in English--that it
provided to students who spoke English. The Court held that by failing
to provide LEP Chinese-speaking students meaningful access to
educational programs, the school's practices violated Title VI's
prohibition against national origin discrimination.
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
``utilize[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.\6\ 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.
---------------------------------------------------------------------------
\6\ 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.
[[Page 70777]]
II. Who is covered?
USDA regulations require all recipients of Federal financial
assistance from USDA to provide meaningful access to LEP persons.\7\
Federal financial assistance includes grants, below-market loans,
training, and use of equipment, donations of surplus property, and
other assistance. Covered entities include, but are not limited to:
---------------------------------------------------------------------------
\7\ 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.
Subrecipients likewise are covered when Federal funds are passed
through from a recipient to a subrecipient.
Coverage extends to a recipient's entire program or activity, i.e.,
to all parts of a recipient's operations.\8\ This is true even if only
one part of the recipient receives the Federal financial assistance.\9\
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.
---------------------------------------------------------------------------
\8\ 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.
\9\ 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.\10\
---------------------------------------------------------------------------
\10\ Recipients should also be mindful of their responsibilities
under the Americans with Disabilities Act of 1990 and Section 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 are
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 food
stamps 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:
(1) The number or proportion of LEP persons eligible to be served
or likely to be encountered within the area serviced by the recipient;
(2) The frequency with which LEP persons come in contact with the
program or activity;
(3) The nature and importance of the program, activity, or service
to people's lives; and
(4) 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 relevant to the
public than others and/or have greater impact on or contact with LEP
persons, and thus may 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 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 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 activity 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
[[Page 70778]]
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 food
stamp certification office 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.\11\ 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.
---------------------------------------------------------------------------
\11\ 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 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 persons. When using demographic data, it
is important to focus in on the languages spoken by those who are
not proficient in English.
(2) The Frequency With Which LEP Persons Come Into Contact With the
Program or Activity.
Recipients should assess, as accurately as possible, the frequency
with which they have or should have contact with an LEP person 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 contact 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 person accesses a program or service on a daily basis,
recipient has greater duties than if the same person'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 person
seeks services under the program in question. This plan needs 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 or Activity or Service
by the Program.
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 may 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. In the
same vein, to avoid serious, negative consequences to an LEP person, a
recipient must also determine the appropriate media or format that will
reach the target LEP population and does not result in a delay in
providing information on a program, service, or benefit. 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.
(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 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, 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
[[Page 70779]]
formalized use of qualified community volunteers, for example, may help
reduce costs.\12\ Recipients should carefully explore the most cost-
effective means of delivering competent and accurate language services
before limiting services due to resource concerns. Large entities and
those entities serving a significant number or proportion of LEP
persons should ensure that their resource limitations are well-
substantiated before using this factor as a reason to limit language
assistance. Such recipients may find it useful to be able to
articulate, through documentation or in some other reasonable manner,
their process for determining that language services would be limited
based on resources or costs. This is not to suggest that smaller
entities are immune from the requirement to provide meaningful access.
Any recipient of federal financial assistance must be sure that any
claim of resource limitations is well substantiated.
---------------------------------------------------------------------------
\12\ Small recipients with limited resources may find that
entering into a bulk telephonic interpretation service contract will
prove cost effective.
---------------------------------------------------------------------------
The 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 person 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 social
service recipient having a service area with a significant Hispanic LEP
population may 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 may be circumstances where the importance and nature of the
activity and number or proportion and frequency of contact with LEP
persons may be low and the costs and resources needed to provide
language services may be high--such as in the case of a voluntary
general public tour of a recreational facility in which pre-arranged
language services for the particular service may not be necessary. All
recipients must provide meaningful access to all their programs.
However, the four-factor analysis recognizes that there may be
gradations of import concerning certain activities that will lessen the
burden on a recipient in certain unique situations. 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. 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 recipient's program or activity and of any
particularized vocabulary and phraseology used by the LEP person who is
being assisted; \13\
---------------------------------------------------------------------------
\13\ 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 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 that 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 may 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 may result in the denial or
reduction of services or benefits, the use of certified interpreters is
strongly encouraged.\14\ Where such proceedings are lengthy, the
interpreter will likely need breaks and team interpreting may be
appropriate to ensure accuracy and to prevent errors caused by mental
fatigue of interpreters.
---------------------------------------------------------------------------
\14\ For those languages in which no formal accreditation or
certification exists, 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 LEP services required. 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 may not need
to meet the same exacting standards.
Finally, when interpretation is needed, it should be provided in a
timely manner. 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
[[Page 70780]]
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 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, service, or benefit
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
staff are also used to interpret between English speakers and LEP
persons, or to orally interpret written documents from English into
another language, they should be competent in the skill of
interpreting. Being bilingual does not necessarily mean that a person
has the ability to interpret. In addition, there may be times when the
role of the bilingual employee may conflict with the role of an
interpreter (for instance, a bilingual 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 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 or activity that may be
important parts of the conversation. Nuances in language and non-verbal
communication can often assist an interpreter and cannot be recognized
over the phone. Video teleconferencing may sometimes help to resolve
this issue where necessary. In addition, where documents are being
discussed, it is important to give telephonic interpreters adequate
opportunity to review the documents 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, services, or
benefits of the program or activity 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 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.
[[Page 70781]]
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.
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 rare 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, using children/minors as interpreters may create additional
issues of competency, confidentiality, or conflict of interest.
Reliance on children is especially discouraged unless there is an
extreme emergency and no preferable qualified interpreters are
available.
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).
B. Written Language Services (Translation)
Translation is the replacement of a written text from one language
(source language) into an equivalent written text in another language
(target language).
What Documents Should Be Translated? After applying the four-factor
analysis, a recipient may determine that an effective LEP plan for its
particular program or activity includes the translation of vital
written materials into the language of each frequently encountered LEP
group eligible to be served and/or likely to be affected by the
recipient's program.
Such written materials could include, 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 are not necessarily 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. Note, however, that even when
a document is not vital, the recipient still must provide meaningful
access, which may require sight translation or other language
assistance services.
Classifying a document as vital or non-vital is sometimes
difficult, especially in the case of outreach materials like brochures
or other information on rights and services. Awareness of rights or
services is an important part of ``meaningful access.'' Lack of
awareness that a particular program, right, or service exists may
effectively deny LEP 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, and religious or
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 more
information about 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
[[Page 70782]]
written materials into all of those languages is unrealistic. Although
recent technological advances have made it easier for recipients to
store and share translated documents, such an undertaking would incur
substantial costs and require substantial resources. Nevertheless,
well-substantiated claims of lack of resources to translate all vital
documents into dozens of languages do not necessarily relieve the
recipient of the obligation to translate those documents into at least
several of the more frequently encountered languages and to set
benchmarks for continued translations into the remaining languages over
time. As a result, the extent of the recipient's obligation to provide
written translations of documents should be determined by the recipient
on a case-by-case basis, looking at the totality of the circumstances
in light of the four-factor analysis. Because translation is a one-time
expense, consideration should be given to whether the up-front 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)
below 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. The four
factor analysis must always be used in evaluating the need for, and
extent of use of, oral interpreters.
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.\15\ 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.''
---------------------------------------------------------------------------
\15\ 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.\16\
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.
---------------------------------------------------------------------------
\16\ 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
assessing the appropriate mix of LEP services required. 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 it serves. Recipients have considerable
[[Page 70783]]
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.
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 six 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 require 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 www.justice.gov/crt/about/cor/Pubs/ISpeakCards.pdf. 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 and adequate
posting on Web sites. 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 (including Web sites) 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; \17\
---------------------------------------------------------------------------
\17\ The Social Security Administration has made such signs
available at http://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;
--Presentations and/or notices at schools and religious organizations;
and
--Posting notices/links for language assistance on recipient agency Web
sites. These should be translated into the most commonly encountered
[[Page 70784]]
languages and tagged on the agency home pages.
(5) Ensuring Online Automation Services
USDA recipients who provide online communications and services to
customers, including but not limited to online applications, forms and
brochures, must include in their LEP plan their strategy for ensuring
that LEP individuals have meaningful access to online automation
services.
(6) 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 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 these six elements, 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 4330-2,
``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 either 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 may 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 may identify language access obligations/
requirements. Recipients may meet these obligations, so long as they do
not conflict with or set a lower standard than is required under Title
VI and Title VI regulations. Moreover, recipients must also comply as a
matter of state law with higher requirements if those requirements
exist under state laws. 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: November 17, 2014.
Thomas J. Vilsack,
Secretary.
[FR Doc. 2014-27960 Filed 11-26-14; 8:45 am]
BILLING CODE 3410-9R-P