[Federal Register Volume 67, Number 34 (Wednesday, February 20, 2002)]
[Notices]
[Pages 7692-7698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4013]


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GENERAL SERVICES ADMINISTRATION


Office of Civil Rights; Title VI of the Civil Rights Act of 1964; 
Limited English Proficiency Policy Guidance for Recipients of Federal 
Financial Assistance

AGENCY: General Services Administration.

ACTION: Notice of policy guidance with request for comment.

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SUMMARY: The General Services Administration (GSA) is republishing for 
additional public comment, policy guidance on Title VI's prohibition 
against national origin discrimination as it affects limited English 
proficient persons.

DATES: Effective date: This guidance was effective January 17, 2001. 
Comment due date: Comments must be submitted on or before March 22, 
2002. GSA will review all comments and will determine what 
modifications to the policy guidance, if any, are necessary.

ADDRESSES: Interested persons should submit written comments to the 
Office of Civil Rights (AK), Room 5127, General Services 
Administration, 1800 F Street, NW., Washington, DC 20405. Comments may 
also be submitted by e-mail at [email protected], or facsimile at 
202-219-3369.

FOR FURTHER INFORMATION CONTACT: James M. Taylor or K. Evelyn Britton, 
Office of Civil Rights, Room 5127, General Services Administration, 
1800 F Street, NW., Washington, DC 20405, telephone 202-501-0767 or 1-
800-662-6376; TDD 1-888-267-7660. Arrangements to receive the policy 
guidance in an alternative format may be made by contacting the named 
individuals.

SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d, et seq. and its implementing regulations provide that no 
person shall be subjected to discrimination on the basis of race, 
color, or national origin under any program or activity that receives 
Federal financial assistance. The purpose of this policy guidance is to 
clarify the responsibilities of recipients of Federal financial 
assistance from GSA (``recipients''), and assist them in fulfilling 
their responsibilities to limited English proficient (LEP) persons, 
pursuant to Title VI of the Civil Rights Act of 1964 and implementing 
regulations. This document was originally published on January 17, 
2001. (See 66 FR 4026.) The document was based on the policy guidance 
issued by the Department of Justice entitled ``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). On October 26, 2001, and January 11, 2002, the Assistant 
Attorney General for Civil Rights issued to Federal departments and 
agencies guidance memoranda, which reaffirmed the Department of 
Justice's commitment to ensuring that federally assisted programs and 
activities fulfill their LEP responsibilities and which clarified and 
answered certain questions raised

[[Page 7693]]

regarding the August 16th publication. GSA is presently reviewing its 
original January 17, 2001, publication in light of these clarifications 
to determine whether there is a need to clarify or modify the January 
17th guidance. In furtherance of those memoranda, GSA is republishing 
its guidance for the purpose of obtaining additional public comment. 
The text of the complete guidance document appears below.

    Dated: February 13, 2002.
Madeline Caliendo,
Associate Administrator, Office of Civil Rights, General Services 
Administration.

Policy Guidance

    1. Subject. Limited English proficiency policy guidance for 
recipients of Federal financial assistance
    2. Purpose. General Services Administration (GSA) provides this 
policy guidance for its recipients of Federal financial assistance to 
ensure meaningful access to federally assisted programs and activities 
for persons with Limited English Proficiency (LEP). This policy 
guidance does not create new obligations, but rather, clarifies 
existing responsibilities under Title VI of the Civil Rights Act of 
1964, as amended, its implementing regulations and relevant case law.
    3. Dates. This guidance was effective January 17, 2001. Comments 
must be submitted on or before March 22, 2002. GSA will review all 
comments and will determine what modifications to the policy guidance, 
if any, are necessary.
    4. Policy. To improve access to federally assisted programs and 
activities for persons who, as a result of national origin, are limited 
in their English proficiency.
    5. Action Required. All recipients of Federal financial assistance 
from GSA are to develop an effective plan, in writing, for ensuring 
meaningful access to their programs and activities by LEP persons, 
consistent with this guidance.
    6. Background Information. English is the predominant language of 
the United States. According to the 1990 Census, English is spoken by 
95% of its residents. Of those U.S. residents who speak languages other 
than English at home, the 1990 Census reports that 57% above the age of 
four speak English ``well to very well.''
    The United States is also home to millions of national origin 
minority individuals who are LEP. That is, their primary language is 
not English and they cannot speak, read, write or understand the 
English language at a level that permits them to interact effectively 
with recipients of Federal financial assistance. Because of language 
differences and the inability to effectively speak or understand 
English, persons with LEP may be subject to exclusion from programs or 
activities, experience delays or denials of services/benefits, or 
receive care and services/benefits from recipients of Federal financial 
assistance based on inaccurate or incomplete information.
    Executive Order 13166 (65 FR 50119) dated August 11, 2000 and 
policy guidance issued by Department of Justice (DOJ) on August 11, 
2000 (65 FR 50123), address the responsibility of all recipients of 
Federal financial assistance to ensure meaningful access for persons 
with LEP. GSA refers to and incorporates DOJ's policy guidance for 
recipients as part of this policy guidance, and for the purpose of 
determining compliance with this policy guidance, within the scope of 
Title VI of the Civil Rights of 1964, as amended, its implementing 
regulations and relevant case law.
    This policy guidance establishes a four-step process that 
recipients should follow in developing an effective LEP assistance 
plan. A key element in this process is stakeholder input. Therefore, 
recipients should coordinate with local community-based organizations 
(i.e., stakeholders) that represent populations of LEP persons. These 
organizations can provide valuable input and assistance in identifying 
and addressing the LEP needs of the serviced population. This 
coordinated effort will assist in developing a practical approach in 
providing appropriate LEP assistance that is reasonable and cost-
effective.
    Some organizations representing LEP persons may include the 
National Council of La Raza (NCLR), the League of United Latin American 
Citizens (LULAC), the National Council of Asian Pacific Americans 
(NCAPA), the Organization of Chinese Americans (OCA), the National 
Congress of American Indians (NCAI), the National Urban League (NUL), 
the National Association for the Advancement of Colored People (NAACP), 
Mexican American Legal Defense and Educational Fund, Arab American 
Anti-Discrimination Committee and National Coalition for Haitian 
Rights. This is not meant to be an exhaustive listing, and different 
community-based or national origin minority organizations may be 
available in a recipient's serviced area.
    7. Legal Authority. The legal authority for the Office of Civil 
Right's (OCR's) enforcement actions is Title VI of the Civil Rights Act 
of 1964, GSA's implementing regulations, and a consistent body of case 
law, and is further described below.
    Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
section 2000d et seq. states: ``No person in the United States shall on 
the ground of race, color or national origin, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving Federal 
financial assistance.''
    State and local laws may provide additional obligations to serve 
LEP individuals, but cannot compel recipients of Federal financial 
assistance to violate Title VI. For instance, given our constitutional 
structure, State or local ``English-only'' laws do not relieve an 
entity that receives Federal funding from its responsibilities under 
Federal anti-discrimination laws. Entities in States and localities 
with ``English-only'' laws are certainly not required to accept Federal 
funding--but if they do, they have to comply with Title VI, including 
its prohibition against national origin discrimination by recipients of 
Federal assistance. Thus, failing to make federally assisted programs 
and activities accessible to individuals who are LEP will, in certain 
circumstances, violate Title VI.
    GSA's implementation regulations provide, in part, at 41 CFR 101-
6.204-1:

    ``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 otherwise subjected to discrimination 
under any program to which this subpart applies.''

    Specific discriminatory actions prohibited are addressed at 41 CFR 
101-6.204-2:

    ``(a)(1) In connection with any program to which this subpart 
applies, a recipient may not, directly or through contractual or 
other arrangements, on the ground of race, color, or national 
origin:
    (i) Deny an individual any services/benefits, financial aid, or 
other benefit provided under the program;
    (ii) Provide any service, financial aid, or other benefit to any 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment 
in any matter related to his receipt of any service, financial aid, 
or other benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must 
meet in order to be provided any service, financial

[[Page 7694]]

aid, or other benefit provided under the program;
    (vi) Deny an individual an opportunity to participate in the 
program through the provision of services or otherwise, or afford 
him an opportunity to do so which is different from that afforded 
others under the program* * *''

    Furthermore, the DOJ coordination regulations for Title VI, located 
at 28 CFR 42.405(d)(1), provide that:

    ``(1) Where a significant number or proportion of the population 
eligible to be served or likely to be directly affected by a 
federally assisted program (e.g., affected by relocation) needs 
service or information in a language other than English in order 
effectively to be informed of or to participate in the program, the 
recipient shall take reasonable steps, considering the scope of the 
program and the size and concentration of such population, to 
provide information in appropriate languages to such persons. This 
requirement applies with regard to written material of the type 
which is ordinarily distributed to the public.''

    Extensive case law affirms the obligation of recipients of Federal 
financial assistance to ensure that persons with LEP can meaningfully 
access federally assisted programs. Specifically, in the case of Lau v. 
Nichols, 414 U.S. 563 (1974), the U.S. Supreme Court ruled that a 
public school system's failure to provide English language instruction 
to students of Chinese ancestry who do not speak English denied the 
students a meaningful opportunity to participate in a public 
educational program in violation of Title VI of the Civil Rights Act of 
1964.
    More recently, the Eleventh Circuit in Sandoval v. Hagan, 197 F.3d 
484 (11th Cir. 1999), cert. granted sub. Nom., Alexander v. Sandoval, 
147 L. Ed. 2d 1051 (U.S. Sept. 26, 2000) (No. 99-1908), held that the 
State of Alabama's policy of administering a driver's license 
examination in English only was a facially neutral practice that had an 
adverse effect on the basis of national origin, in violation of Title 
VI. Title VI regulations prohibit both intentional discrimination and 
policies and practices that appear neutral but have a discriminatory 
effect. Thus, a recipient's policies or practices regarding the 
provision of benefits and services to persons with LEP need not be 
intentional to be discriminatory, but may constitute a violation of 
Title VI where they have an adverse effect on the ability of national 
origin minorities to meaningfully access programs and services.
    The DOJ states in its policy guidance that Title VI does not 
require recipients to remove language barriers when English is an 
essential aspect of the program, or there is another ``substantial 
legitimate justification for the challenged practice.'' See Footnote 13 
of DOJ's policy guidance.
    8. Federal Financial Assistance Programs. GSA administers two major 
Federal financial assistance programs, in addition to other programs of 
Federal financial assistance, such as the direct transfer of personal 
property and the allotment of space in GSA buildings. The two major 
programs of Federal financial assistance are the Federal Surplus 
Personal Property Donation Programs and the Disposal of Federal Surplus 
Real Property for Public Use.
    a. Federal Surplus Personal Property Donation Program. Enables 
certain non-Federal agencies, institutions, organizations and certain 
small businesses to obtain property that the Federal Government no 
longer needs. The personal property includes all types and categories 
of property, such as hand and machine tools, office machines and 
supplies, furniture, appliances, medical supplies, hardware, clothing, 
motor vehicles, boats, airplanes, construction equipment, textiles, 
communications and electronic equipment and gifts or decorations given 
to Government officials by foreign dignitaries.
    (1) Federal surplus personal property may be donated to nonprofit 
educational and public health activities exempt from taxation under 
Section 501 of the Internal Revenue Code. The property must be used to 
aid education or public health, and includes programs for the homeless. 
Eligible recipients include nonprofit educational and public health 
activities, such as medical institutions, hospitals, clinics, health 
centers, and drug abuse treatment centers; schools, colleges and 
universities; schools for persons with mental or physical disabilities; 
child care centers; educational radio and televisions licensed by the 
Federal Communications Commission; museums attended by the public; and 
libraries. Nonprofit, tax-exempt organizations that provide food, 
shelter, or support services to homeless people may also be eligible to 
receive surplus property through the donation program (i.e., soup 
kitchens, day centers for the homeless, food banks, shelters for 
battered spouses, half-way houses).
    (2) Additionally, public agencies involved in such activities as 
conservation, economic development, education, park and recreation 
programs, public safety, public health, programs for the elderly, and 
programs for the homeless may be eligible for donations of surplus 
personal property. Public agencies generally include States, their 
departments, divisions and other instrumentalities; political 
subdivisions of States, including cities, counties, and other local 
Government units and economic development districts; instrumentalities 
created by compact or other agreement between State or political 
subdivisions; and Indian tribes, bands, groups, pueblos, or communities 
located on State reservations.
    b. Disposal of Federal Surplus Real Property for Public Use. Under 
existing Federal law, States and local government bodies and certain 
nonprofit institutions may acquire Federal surplus real property at 
discounts of up to 100% for various types of public use. These uses 
include: homeless services, airports/ports, correctional, educational, 
historic monument, parks/recreation, public health and wildlife 
conservation. These disposals are usually accomplished in coordination 
with other Federal agencies (i.e., Department of Education (DOE), 
Department of Health and Human Services (DHHS), Department of 
Transportation (DOT), Department of Interior (DOI), Department of 
Housing and Urban Development (HUD).
    c. GSA Personal Property Utilization Program. Government 
regulations mandate that Federal agencies, to the fullest extent 
practicable, use excess personal property as the first source of supply 
in meeting their requirements. However, certain laws provide Federal 
agencies with the ability to directly transfer certain excess property 
to non-Federal entities. For example, Executive Order 12999 (61 FR 
17227, 3 CFR, 1996 comp., p. 180) provides that all Federal agencies, 
to the extent permitted by law, shall give highest preference to 
schools and nonprofit organizations, including community-based 
educational organizations, in the transfer of educationally useful 
Federal equipment. Thus, GSA recipients in this program include schools 
and certain community-based educational organizations.
    d. Allotment of Space. Under existing Federal law, GSA may allot 
space for little or no costs to Federal Credit Unions, vending stands 
operated by blind persons and child care centers.
    9. Definition of Terms. The following definitions are provided for 
reference.
    a. Federal financial assistance: Grants and loan of Federal funds; 
grants or donation of Federal property and interests in property; 
detail of Federal personnel; sale and lease of, and the permission to 
use (on other than a casual or transient basis) Federal property or any 
interest in the property without consideration or at a nominal 
consideration, or at a consideration which is reduced for the purposes 
of assisting the recipient, or in recognition

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of the public interest to be served by the sale or lease to the 
recipient; or any Federal agreement, arrangement, or other contract 
which has as one of its purposes the provision of assistance.
    b. Recipient: Any State or political subdivision, any 
instrumentality of a State or political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended, directly or 
through another recipient, except that such term does not include any 
ultimate beneficiary of the assistance.
    c. Person with Limited English Proficiency: A person whose primary 
language is not English and whose ability to speak, read, write or 
understand the English language does not permit effective interaction 
with recipients of Federal financial assistance.
    d. Vital Documents: A document or information will be considered 
vital if it contains information that is critical for accessing the 
recipient's program(s) and/or activities, or is required by law. Thus, 
vital documents include, for example, applications; consent forms; 
letters and notices pertaining to the reduction, denial or termination 
of services or benefits; and letters or notices that require a response 
from the beneficiary or client. Generally, entire web sites need not be 
translated. Only the vital information or documents within the web site 
should be translated. See subparagraph 11b(3) below for further 
discussion about web sites.
    e. Beneficiary: Individuals and/or entities that directly or 
indirectly receive an advantage through the operation of a Federal 
program, (i.e., one who is within the serviced population of the 
recipient of Federal financial assistance and who ultimately benefits 
from those services.)
    10. LEP Procedures and Guidelines. Executive Order 13166 (65 FR 
50119) provides for a flexible standard stating that recipients of 
Federal financial assistance are to take reasonable steps to ensure 
meaningful access to their programs and activities by LEP persons. 
Thus, it is important that all recipients take the following steps in 
determining their LEP responsibilities and providing appropriate LEP 
assistance. These four steps are more fully explained below, and 
include: (1) Conduct an assessment of the serviced population, (2) 
develop written LEP assistance plans, (3) implement the LEP plan, and 
(4) monitor the effectiveness of the LEP plan.
    a. Step 1. Conduct an assessment of the serviced population. This 
assessment includes identifying the types of service(s) being provided 
by the recipient and determining the serviced population (i.e., 
individuals served by the recipient's program(s) and activities).
    b. Step 2. Develop written LEP assistance plans. These plans should 
address the recipient's LEP responsibilities and the types of LEP 
assistance that the recipient will provide, consistent with this policy 
guidance. Recipients are to develop a written plan based on a balanced 
analysis of the following four factors, to ensure meaningful access for 
eligible LEP persons.
    (1) Factor 1: Number or Proportion of LEP Persons. One factor in 
determining the reasonableness of a recipient's efforts in providing 
LEP assistance is the number or proportion of people who will be 
excluded from the benefits or services absent efforts to remove 
language barriers. The key here is to focus on persons who are eligible 
to access the recipient's program or activity.
    The steps reasonable for a recipient that serves one LEP person a 
year may be different than those expected of a recipient that serves 
several LEP persons per day. However, those who serve a few are still 
subject to the requirements of Title VI of the Civil Rights Act of 1964 
and Executive Order 13166 (65 FR 50119). This plan need not be 
intricate, and may be as simple as being prepared to use one of the 
commercially available language lines to obtain interpreter services 
within a reasonable period of time.
    Methods of obtaining estimates of serviced LEP population include 
taking a census of contacts with LEP persons over a given period of 
time or using demographic data of the service area. The 1990 U. S. 
Census information may be found at a local library or on the Internet 
at www.Census.gov. The 2000 Census data may not be available until the 
2001-02 timeframe. In addition to the U. S. Census, other potential 
resources include State and local government offices; the Mayor's 
office; the local school superintendent's office; the State education 
department; the State social services department, and local hospitals; 
or other elected officials offices. Combining these methods will 
probably result in the most realistic and accurate estimates.
    Local or State Yellow Pages may also be helpful in identifying 
organizations that serve or represent particular language minority 
populations. Local national origin minority organizations may be able 
to provide, or assist in obtaining, certain demographic information 
regarding LEP populations in the local area. The information that can 
be obtained and the network established in coordinating this type of 
effort with members of local and State government offices and minority 
organizations may prove to be valuable resources for recipients into 
the future.
    (2) Factor 2: Frequency of Contact with the Program. Frequency of 
contacts between the recipient's program or activity and LEP persons is 
another factor to be weighed. For example, if LEP persons must access 
the program or activity on a daily basis, the recipient has a greater 
LEP responsibility than if such contact is unpredictable or infrequent. 
Recipients should take into account local or regional conditions when 
determining frequency of contact.
    Although past experience may be helpful in determining the 
frequency of contact, it should not be used as the exclusive criteria 
since the lack of prior LEP notice and assistance may have contributed 
to such minimal or non-existent contact.
    (3) Factor 3: Nature and Importance of the Program. The importance 
of the services or benefits provided to the beneficiaries will affect 
the determination of the reasonable steps required. More affirmative 
steps are required in those programs where the denial or delay of 
access may have life or death implications than in programs that are 
not as crucial to one's day-to-day existence. For example, fire 
protection services are of more importance to the serviced population 
than access to a museum.
    Recipients must also consider the importance of the program or 
activity to the eligible LEP population, both immediately, as well as 
the long-term. (i.e., what is the short-term and long-term impact to 
the LEP population if translation assistance is not provided?)
    (4) Factor 4: Resources Available. The resources available to a 
recipient of Federal financial assistance may impact the steps that 
recipients take. For example, a small recipient with limited resources 
may not need to take the same steps as a larger recipient to provide 
LEP assistance in programs that have a limited number of eligible LEP 
persons or where the contact is infrequent. However, small recipients 
are still subject to this policy guidance, although the type of LEP 
mitigation measures may differ from that of larger recipients. Claims 
of limited resources from larger entities should be well substantiated.
    A recipient that has limited resources may consider exploring 
whether State and local government offices provide translation 
assistance. These offices may provide resources for the recipient's 
use.

[[Page 7696]]

Also, recipients may consider contacting local minority organizations 
for possible translation assistance.
    c. Step 3: Implement the LEP plan. The key to successful 
implementation of an effective LEP assistance plan is to ensure that 
the serviced population is notified regarding the availability of free 
LEP assistance. Also, it is important that a recipient's staff is aware 
of LEP responsibilities and the recipient's LEP assistance plan.
    (1) Notice of LEP assistance to be provided. Each recipient of 
Federal financial assistance is to notify the public of available LEP 
assistance at no cost to the LEP person. This may be done through a 
brochure or poster in the language(s) identified in the location(s) 
where the recipient's federally assisted service(s) and/or benefits are 
being provided. Posters should be placed in a conspicuous place to 
ensure LEP persons will see it. It may also include posting such notice 
on the recipient's internet site(s). Sample language to use for such 
notice is as follows: ``Language assistance is available upon request 
if you cannot speak or write English very well.''
    (2) Ensure staff is aware of LEP responsibilities. Recipients are 
to ensure that GSA's policy regarding LEP responsibilities is 
communicated to all staff members whose duties may bring them in 
contact with LEP persons accessing the services and/or benefits of the 
recipient. This communication should ensure an understanding of the 
types of LEP assistance being offered by the recipient, and the 
mechanisms in place for the staff to use when a request for LEP 
assistance is made.
    d. Step 4: Monitor the effectiveness of the LEP plan. LEP 
assistance requirements may change over a period of time. Therefore, it 
is important to regularly monitor, and when appropriate, adjust the LEP 
procedures to ensure meaningful access for persons with LEP. New 
programs, activities, forms, outreach documents, etc. should be 
considered for translation services as they arise. In addition, to be 
effective, it is crucial for recipients to re-assess language 
assistance services at least every three years to determine the 
effectiveness of existing assistance. This assessment should include a 
review of LEP policies and procedures (i.e., the LEP plan) with the 
recipient's staff. Feedback from LEP persons and community-based 
organizations will also provide helpful insights into the effectiveness 
of LEP assistance procedures.
    11. Translation Requirements. In determining what is reasonable, 
the analysis should address the appropriate mix of written and oral 
language assistance. This includes information provided using the 
Internet, video and audio. When applying the four factors as outlined 
above, decisions should be made regarding which documents must be 
translated, when is oral translation necessary and whether such 
assistance (i.e., oral or written translation) should be immediately 
available or provided within a reasonable period of time.
    a. Oral Communication: Depending on the need, options for providing 
oral language assistance range from hiring bilingual staff or on-staff 
interpreters to contracting for interpreter services as needed, 
engaging community volunteers, or contracting with a telephone 
interpreter services. Oral communication between recipients and 
beneficiaries often is a necessary part of the exchange of information. 
Proper analysis should include looking at what kind of communication 
(oral or written) you normally provide to an English speaking person in 
order to fully communicate the program to them. Thus, there may be 
instances where simply providing written translation may not be 
providing meaningful access to persons with LEP in the same manner as 
that provided to non-LEP beneficiaries.
    b. Written Communication: As part of its overall language 
assistance program, a recipient's LEP assistance plan should provide 
for the translation of certain written materials in languages other 
than English, where a significant number or percentage of the 
population eligible to be served or likely to be directly affected by 
the program, needs services or information in a language other than 
English to communicate effectively. See 28 CFR 42.405(d)(1).
    (1) In determining what should be translated, identify vital 
documents and non-vital documents. Vital documents must be translated 
when a significant number or percentage of the population eligible to 
be served, or likely to be directly affected by the recipient's 
program(s) or activities, seeks services or information in a language 
other than English to communicate effectively. For many larger 
documents, translation of vital information contained within the 
document will suffice and the documents need not be translated in their 
entirety. Non-vital documents/information need not be translated.
    (2) OCR recognizes that it may sometimes be difficult to draw a 
distinction between vital and non-vital documents, particularly when 
considering outreach or awareness documents. Although meaningful access 
to a program or activity requires an awareness of the program's 
existence, OCR recognizes that it would be impossible, from a practical 
and cost-based perspective, to translate every piece of outreach 
material into every language. Title VI does not require this of its 
recipients. However, lack of awareness regarding the existence of a 
particular program may effectively deny LEP persons meaningful access. 
Thus, it is important that recipients continually survey and assess the 
needs of the eligible serviced populations in order to determine 
whether certain critical outreach materials should be translated into 
other languages.
    (3) The same analysis is to be used in determining the translation 
of web site information, forms, etc. The decision to place a document 
or information on the Internet will not affect whether the document or 
information must be translated. For example, placement on the web site 
should not change the recipient's original assessment regarding the 
number or proportion of LEP persons that comprise the intended audience 
for that document or information. Generally, entire web sites need not 
be translated. Only the vital information or documents within the web 
site should be translated. The four-factor analysis as outlined above 
determines the appropriate language(s) for translation. If the four-
factor analysis determines that written information or a document 
should be translated, the same written document or information should 
be translated on the recipient's web siteu if the recipient's English 
version of the information or document is on the web site. A notice 
regarding the presence of a translated document or information on the 
web site should be posted at an initial entry point onto the site 
(usually the homepage).
    (4) Oral translation assistance will be provided to those persons 
with LEP whose language does not exist in written form. This oral 
translation assistance will explain the contents of vital documents.
    c. Reliability of Translation Resources and Interpretive Services: 
In order to provide effective services to LEP persons, it is important 
to ensure the use of competent interpreters. Although it is not a 
requirement, membership in or accreditation by the American Translators 
Association (ATA) is one indicator regarding the reliability and 
professionalism of language assistance vendors. However, competency 
does not necessarily mean formal certification as an interpreter, 
although certification is helpful. Yet, competency refers to more than 
being bilingual. It refers to demonstrated proficiency in both English 
and the other language, orientation and training that includes

[[Page 7697]]

the skills and ethics of interpreting (i.e., issues of 
confidentiality), fundamental knowledge in both languages of terms or 
concepts peculiar to the program or activity, and sensitivity to the 
LEP person's culture.
    It is also important to note that in some circumstances, verbatim 
translation of materials may not accurately and appropriately convey 
the substance of what is contained in the written language. An 
effective way to address this concern is to reach out to community-
based organizations to review translated materials to ensure that the 
translation is accurate and easily understood by LEP persons.
    It is recommended that a different contractor conduct a second 
review of a translated document, when such document is of a highly 
technical or complex nature. Another method of ensuring reliability of 
such documents is to have the document translated back into English to 
determine if the source document lost important meaning in its foreign 
translation.
    Generally, it is not acceptable for recipients to rely upon an LEP 
individual's family members or friends to provide the interpreter 
services. The recipient should meet its obligations under Title VI by 
supplying competent language services free of cost. In rare emergency 
situations, the recipient may have to rely on an LEP person's family 
members or other persons whose language skills and competency in 
interpreting have not been established. Proper planning by recipients 
is important in order to ensure that those situations rarely occur. 
Therefore, it is not acceptable to rely upon an LEP person to provide 
his/her own interpreter, unless the LEP person requests the use of his/
her own interpreter or in the case of an emergency.
    12. Examples. The following examples are being provided to 
facilitate the assessment, planning and implementation of a successful 
LEP plan.
    a. Examples of problem areas include: Providing services and/or 
benefits to LEP persons that are more limited in scope or lower in 
quality than those provided to other individuals; subjecting LEP 
persons to unreasonable delays; limiting participation in a recipient's 
program(s) or activities on the basis of English proficiency; providing 
services and/or benefits to LEP persons that are not as effective as 
those provided to persons proficient in English; failing to inform LEP 
persons of the right to receive free interpreter services; or requiring 
LEP persons to provide their own interpreter.
    b. Examples of satisfactory LEP assistance include: Having policies 
and procedures in place for identifying and assessing the language 
needs of the recipient's serviced LEP population; providing a range of 
oral language assistance options, appropriate to each of the 
recipient's circumstances; providing notice to LEP persons of the right 
to free language services; communicating LEP responsibilities and 
available services to staff members; program monitoring; establishing a 
plan for providing written materials in languages other than English 
where a significant number or percentage of the affected population 
needs services or information in a language other than English.
    c. Examples of applying the 4 factors: The following are examples 
of how meaningful access will be assessed by OCR:
    (1) Example 1. A small child care center has three LEP parents (two 
who are Chinese and one who is Cuban) whose English-speaking children 
attend its child care center on a regular basis. The center has a staff 
of six, and has limited financial resources to afford to hire bilingual 
staff, contract with a professional interpreter service, or translate 
written documents. To accommodate the language needs of their LEP 
parents, the Center made arrangements with a Chinese and a Hispanic 
community organization for trained and competent volunteer 
interpreters, and with a telephone interpreter language line, to 
interpret during parent meetings and to orally translate written 
documents. There have been no client complaints of inordinate delays or 
other service related problems with respect to LEP clients.
    Application of the 4 factors to Example 1: Factor 1: The center has 
three LEP parents (a small number); Factor 2: The frequency of contact 
is every day, but mostly for greeting; Factor 3: The nature and 
importance of the recipient's program to the serviced population 
relates to the health, safety and welfare of their children (i.e., 
child care); Factor 4: The child care center has limited resources and 
a small staff.
    The assistance that the child care center is providing will 
probably be considered appropriate, given the center's resources, the 
size of staff, and the size of the LEP population. Thus, OCR would find 
the center in compliance with Title VI.
    (2) Example 2. A county social service program has a large budget 
and serves 500,000 beneficiaries. Of the beneficiaries eligible for its 
services/benefits, 3,500 are LEP Chinese persons, 4,000 are LEP 
Hispanic persons, 2000 are LEP Vietnamese persons and about 400 are LEP 
Laotian persons. The county frequently encounters an LEP client, but 
has no policy regarding language assistance to LEP persons other than 
telling LEP clients to bring their own interpreters. LEP clients are 
provided with application and consent forms in English and, if 
unaccompanied by their own interpreters, must solicit the help of other 
clients or must return at a later date with an interpreter.
    Application of the 4 factors to Example 2: Factor 1: The eligible 
LEP population is significant; Factor 2: The frequency of contact is 
frequent; Factor 3: The nature and importance of the county's program 
relates to the social welfare of the community it serves; Factor 4: The 
county has a large budget.
    Given the size of the county program, its resources, the size of 
the eligible LEP population, the frequency of contact and the nature of 
the program, OCR would likely find the county in violation of Title VI 
and would require it to develop a comprehensive language assistance 
program.
    d. The intent of this guidance is to provide recipients with 
information regarding the requirements of Title VI and its implementing 
regulations for providing meaningful access for LEP persons to 
federally assisted services and/or benefits. The examples and framework 
outlined above are not intended to be exhaustive. Thus, recipients have 
considerable flexibility in determining how to comply with their legal 
obligation in meeting their LEP responsibilities, and are not required 
to use all of the suggested methods and options listed. However, 
recipients must establish and implement policies and procedures for 
providing language assistance sufficient to fulfill their Title VI 
responsibilities.
    13. Compliance. All recipients must take reasonable steps 
(consistent with this policy guidance) to overcome language differences 
that result in barriers and provide the language assistance needed to 
ensure that persons with LEP have meaningful access to services and 
benefits.
    a. The failure to take all of the steps as outlined herein will not 
necessarily mean that a recipient has failed to provide meaningful 
access to LEP persons. OCR will make assessments on a case by case 
basis and will consider several factors in determining whether the 
steps taken by a recipient provide meaningful access. (i.e., nature and 
importance of recipient's services to the serviced population, 
recipient's size, availability of financial and other resources, and 
frequency of contact with LEP persons).

[[Page 7698]]

    b. Those factors include the size of the recipient and the eligible 
LEP population, the nature of the program or service, the objectives of 
the program, the total resources available, the frequency with which 
particular languages are encountered, and the frequency with which LEP 
persons come into contact with the recipient's program.
    c. There are instances where recipients of Federal financial 
assistance from GSA may also be recipients of Federal financial 
assistance from other Federal agencies. For instance, hospitals and 
health clinics may receive financial assistance from the Department of 
Health and Human Services (DHHS); schools and universities may receive 
financial assistance from the Department of Education (DOE); police 
departments and other law enforcement agencies/organizations may 
receive financial assistance from the Department of Justice (DOJ). In 
order to avoid the potential for confusion with such recipient 
organizations as to their LEP responsibilities, OCR will apply, where 
appropriate, the Federal agency's LEP guidance that is more specific 
and/or stringent regarding LEP responsibilities and assistance.
    14. Enforcement. OCR will enforce Title VI, and the recipient's 
responsibility to establish LEP procedures and provide appropriate LEP 
assistance, consistent with enforcement procedures as provided in Title 
VI regulations. These procedures include complaint investigations, 
compliance reviews, efforts to secure voluntary compliance, and 
technical assistance.
    GSA's Title VI regulations provide that OCR will investigate 
whenever it receives a complaint, report or other information that 
alleges or indicates possible noncompliance with Title VI. If the 
investigation results in a finding of compliance, OCR will inform the 
recipient in writing of this determination, including the basis for the 
determination. If the investigation results in a finding of 
noncompliance, OCR will inform the recipient of the noncompliance 
through a Letter of Findings that identifies the areas of noncompliance 
and the steps that must be taken to correct the noncompliance, and will 
attempt to secure voluntary compliance through informal means. If the 
matter cannot be resolved informally, the procedure for effecting 
compliance as described at 41 CFR 101-6.211-2, et seq. will be 
followed.
    15. Technical Assistance. A program of language assistance should 
provide for effective communication between the recipient and the 
person with LEP so as to facilitate participation in, and meaningful 
access to the services and/or benefits provided by the recipient. The 
key to ensuring meaningful access for LEP persons is effective 
communication.
    OCR is available to provide assistance to recipients seeking to 
ensure that they operate an effective language assistance program. In 
addition, during its investigative process, OCR is available to provide 
technical assistance to enable recipients to come into voluntary 
compliance. OCR may be reached at 202-501-0767 or toll free 1-800-662-
6376, or by mail at General Services Administration, Office of Civil 
Rights, Title VI, 1800 F Street NW., Suite 5127, Washington, DC, 20405, 
for further assistance. Arrangements to receive this policy guidance in 
alternative format may be made by contacting OCR.

[FR Doc. 02-4013 Filed 2-19-02; 8:45 am]
BILLING CODE 6820-34-P