[Federal Register Volume 67, Number 45 (Thursday, March 7, 2002)]
[Notices]
[Pages 10477-10484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5421]


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DEPARTMENT OF THE TREASURY


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

AGENCY: Department of the Treasury.

ACTION: Policy guidance document.

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SUMMARY: The United States Department of the Treasury 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: This guidance was effective March 7, 2001. Comments must be 
submitted on or before April 8, 2002. Treasury 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 Ms. 
Marcia H. Coates, Director, Office of Equal Opportunity Program, 
Department of the Treasury, 1500 Pennsylvania Avenue, NW., Room 6071 
Metropolitan Square, Washington, DC 20220; Comments may also be 
submitted by e-mail to: [email protected].

FOR FURTHER INFORMATION CONTACT: John Hanberry at the Office of Equal 
Opportunity Program, Department of the Treasury, 1500 Pennsylvania 
Avenue, NW., Room 6071 Metropolitan Square, Washington, DC 20220; (202) 
622-1170 voice, (202) 622-0367 fax. Arrangements to receive the policy 
in an alternative format may be made by contacting Mr. Hanberry.

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 the 
U.S. Department of Treasury (``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. The policy guidance reiterates the Federal 
government's longstanding position that in order to avoid 
discrimination against LEP persons on the grounds of national origin, 
recipients must take reasonable steps to ensure that such persons have 
meaningful access to the programs, services, and information those 
recipients provide, free of charge.
    This document was originally published on March 7, 2001. See 66 FR 
13829. 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 regarding the August 16th publication. The 
Department of Treasury is presently reviewing its original March 7, 
2001, publication in light of these clarifications, to determine 
whether there is a need to clarify or modify the March 7th guidance. In 
furtherance of those memoranda, the Department of Treasury is 
republishing its guidance for the purpose of obtaining additional 
public comment.
    The text of the complete guidance document appears below.

    Dated: February 28, 2002.
Edward R. Kingman, Jr.,
Assistant Secretary for Management and Chief Financial Officer, United 
States Department of the Treasury.

Policy Guidance

A. Background

    On August 11, 2000, President Clinton signed Executive Order 13166, 
``Improving Access to Services for Persons with Limited English 
Proficiency.'' The purpose of this Executive Order is to eliminate to 
the maximum extent possible limited English proficiency (LEP) as an 
artificial barrier to full and meaningful participation in all 
Federally assisted programs and activities.
    The EO requires that Federal agencies draft Title VI guidance 
specifically tailored to their recipients of Federal financial 
assistance, taking into account the types of services provided, the 
individuals served, and the programs and activities assisted to ensure 
that recipients provide meaningful access to their LEP applicants and 
beneficiaries. To assist Federal agencies in carrying out these 
responsibilities, the Department of Justice (DOJ) issued a Policy 
Guidance Document,

[[Page 10478]]

``Enforcement of Title VI of the Civil Rights Act of 1964--National 
Origin Discrimination Against Persons With Limited English Proficiency 
(LEP Guidance)''. DOJ's LEP Guidance sets forth the compliance 
standards that recipients of Federal financial assistance must follow 
to ensure that programs and activities normally provided in English are 
accessible to LEP persons and thus do not discriminate on the basis of 
national origin in violation of Title VI.
    This document contains guidance to recipients of financial 
assistance from the Department and its constituent bureaus. It is 
consistent with DOJ's policy guidance and provides recipients of 
Treasury assistance the necessary tools to assure language assistance 
to LEP persons. It is also consistent with the government-wide Title VI 
regulation issued by DOJ in 1976, ``Coordination of Enforcement of 
Nondiscrimination in Federally Assisted Programs,'' 28 CFR part 42, 
subpart F, that addresses the circumstances in which recipients must 
provide written language assistance to LEP persons.\1\ This guidance 
will be provided to all recipients of Treasury assistance to ensure 
compliance with the nondiscrimination provisions of Title VI as it 
applies to language proficiency.
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    \1\ The DOJ coordination regulations at 28 CFR. 42.405(d)(1) 
provide that ``[w]here a significant number or proportion of the 
population eligible to be served or likely to be directly affected 
by a federally assisted programs (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 to appropriate languages to such 
persons. This requirement applies with regard to written material of 
the type which is ordinarily distributed to the public.''
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B. Introduction

    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, however, home to millions of national 
origin minority individuals who are ``limited English proficient'' 
(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. Because of these language 
differences and their inability to speak or understand English, LEP 
persons may be excluded from participation, experience delays or 
denials of services, or receive services based on inaccurate or 
incomplete information in Treasury assisted programs.
    Some recipients have sought to bridge the language gap by 
encouraging language minority clients to provide their own interpreters 
as an alternative to the agency's use of qualified bilingual employees 
or interpreters. Persons of limited English proficiency must sometimes 
rely on their minor children to interpret for them during visits to a 
service facility. Alternatively, these clients may be required to call 
upon neighbors or even strangers they encounter at the provider's 
office to act as interpreters or translators. These practices have 
severe drawbacks and may violate Title VI of the Civil Rights Act of 
1964. (See Section D.6(a) of this notice.)
    In each case, the impediments to effective communication and 
adequate service are formidable. The client's untrained ``interpreter'' 
is often unable to understand the concepts or official terminology he 
or she is being asked to interpret or translate. Even if the 
interpreter possesses the necessary language and comprehension skills, 
his or her mere presence may obstruct the flow of confidential 
information to the provider. For example, clients of an IRS Taxpayer 
Clinic would naturally be reluctant to disclose or discuss personal 
details concerning their taxes, through relatives, minor children, or 
friends, in this IRS assisted program.
    When these types of circumstances are encountered, the level and 
quality of services available to persons of limited English proficiency 
stand in stark contrast to Title VI's promise of equal access to 
Federally assisted programs and activities. Services denied, delayed or 
provided under adverse circumstances for an LEP person may constitute 
discrimination on the basis of national origin, in violation of Title 
VI. Numerous Federal laws require the provision of language assistance 
to LEP individuals seeking to access critical services and activities. 
For instance, the Voting Rights Act bans English-only elections in 
certain circumstances and outlines specific measures that must be taken 
to ensure that language minorities can participate in elections. See 42 
U.S.C. 1973 b(f)(1). Similarly, the Food Stamp Act of 1977 requires 
states to provide written and oral language assistance to LEP persons 
under certain circumstances. 42 U.S.C. 2020(e)(1) and (2). These and 
other provisions reflect the judgment that providers of critical 
services and benefits bear the responsibility for ensuring that LEP 
individuals can meaningfully access their programs and services.

C. Legal Authority

1. Introduction
    Over the last 30 years, Federal agencies have conducted thousands 
of investigations and reviews involving language differences that 
impede the access of LEP persons to services. Where the failure to 
accommodate language differences discriminates on the basis of national 
origin, Federal law has required recipients to provide appropriate 
language assistance to LEP persons. For example, one of the largest 
providers of Federal financial assistance, the Department of Health and 
Human Services (HHS) has entered into voluntary compliance agreements 
and consent decrees that require recipients who operate health and 
social service programs to ensure that there are bilingual employees or 
language interpreters to meet the needs of LEP persons seeking HHS 
services. HHS has also required these recipients to provide written 
materials and post notices in languages other than English. See Mendoza 
v. Lavine, 412 F.Supp. 1105 (S.D.N.Y. 1976); and Asociacion Mixta 
Progresista v. H.E.W., Civil Number C72-882 (N.D. Cal. 1976). The legal 
authority for Treasury's enforcement actions is Title VI of the Civil 
Rights Act of 1964, DOJ's government-wide implementing regulation for 
Executive Order 12250, the August 11, 2000 DOJ LEP Guidance, and a 
consistent body of case law, which are described below.
2. Statute and Regulation
    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.'' Treasury is in the process of drafting its own 
Title VI regulations consistent with the model regulations provided by 
DOJ, which require that: (a) A recipient under any program to which 
these regulations apply, may not, directly or through contractual or 
other arrangements, on grounds of race, color, or national origin:
    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (b) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be

[[Page 10479]]

provided under any such program or the class of individuals to whom, or 
the situations in which such services, financial aid or other benefits, 
or facilities will be provided ``* * * may not directly, or through 
contractual or other arrangements, utilize 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 with respect to individuals of a 
particular race, color or national origin.'' (Emphasis added.)
3. Case Law
    Extensive case law affirms the obligation of recipients of Federal 
financial assistance to ensure that LEP persons can meaningfully access 
Federally assisted programs. The U.S. Supreme Court, in Lau v. Nichols, 
414 U.S. 563 (1974), recognized that recipients of Federal financial 
assistance have an affirmative responsibility, pursuant to Title VI, to 
provide LEP persons with a meaningful opportunity to participate in 
public programs. In Lau, the 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.
    As early as 1926, the Supreme Court recognized that language rules 
were often discriminatory. In Yu Cong Eng et al. v. Trinidad, Collector 
of Internal Revenue, 271 U.S. 500 (1926), the Supreme Court found that 
a Philippine Bookkeeping Act that prohibited the keeping of accounts in 
languages other than English, Spanish and Philippine dialects violated 
the Philippine Bill of Rights that Congress had patterned after the 
U.S. Constitution. The Court found that the Act deprived Chinese 
merchants, who were unable to read, write or understand the required 
languages, of liberty and property without due process. In Gutierrez v. 
Municipal Court of S.E. Judicial District, 838 F.2d 1031,1039 (9th Cir. 
1988), vacated as moot, 490 U.S. 1016 (1989), the court recognized that 
requiring the use of English only is often used to mask national origin 
discrimination. Citing McArthur, Worried About Something Else, 60 Int'l 
J. Soc. Language, 87, 90-91 (1986), the court stated that because 
language and accents are identifying characteristics, rules that have a 
negative effect on bilingual persons, individuals with accents, or non-
English speakers may be mere pretexts for intentional national origin 
discrimination.
    Another case that noted the link between language and national 
origin discrimination is Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980) 
cert. denied, 449 U.S. 1113 (1981). The court found that on the facts 
before it a workplace English-only rule did not discriminate on the 
basis of national origin since the complaining employees were 
bilingual. However, the court stated that ``to a person who speaks only 
one tongue or to a person who has difficulty using another language 
other than the one spoken in his home, language might well be an 
immutable characteristic like skin color, sex or place of birth.'' Id. 
at 269.
    The Fifth Circuit addressed language as an impermissible barrier to 
participation in society in U.S. v. Uvalde Consolidated Independent 
School District, 625 F.2d 547 (5th Cir. 1980). The court upheld an 
amendment to the Voting Rights Act which addressed concerns about 
language minorities, the protections they were to receive, and 
eliminated discrimination against them by prohibiting English-only 
elections. Most recently, in Sandoval v. Hagan, 7 F. Supp. 2d 1234 
(M.D. Ala. 1998), affirmed, 197 F.3d 484, (11th Cir. 1999), petition 
for certiorari granted, Alexander v. Sandoval 121 S. Ct. 28 (Sept. 26, 
2000) (No. 99-1908), the Eleventh Circuit 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. The court 
specifically noted the nexus between language policies and potential 
discrimination based on national origin. That is, in Sandoval, the vast 
majority of individuals who were adversely affected by Alabama's 
English-only driver's license examination policy were national origin 
minorities.
4. Department of Justice August 11, 2000 LEP Guidance
    This Guidance is issued in compliance with EO 13166 and its 
requirement that agencies providing Federal financial assistance 
provide guidance to recipients that is consistent with DOJ's August 11, 
2000 LEP Guidance. That Guidance sets forth the compliance standards 
that recipients of Federal financial assistance must follow to ensure 
that programs and activities are meaningfully accessible to LEP persons 
and thus do not discriminate on the basis of national origin in 
violation of Title VI. A recipient's policies or practices regarding 
the provision of benefits and services to LEP persons need not be 
intentional to be discriminatory, but may constitute a violation of 
Title VI if they have an adverse effect on the ability of national 
origin minorities to meaningfully access programs and services. 
Accordingly, it is important for recipients to examine their policies 
and practices to determine whether they adversely affect LEP persons. 
This policy guidance provides a legal framework to assist recipients in 
conducting such assessments.

D. Policy Guidance

1. Coverage
    All entities that receive Federal financial assistance from 
Treasury either directly or indirectly, through a grant, contract or 
subcontract, are covered by this policy guidance. The term ``Federal 
financial assistance'' to which Title VI applies includes but is not 
limited to grants and loans of Federal funds, grants or donations of 
Federal property, details of Federal personnel, or any agreement, 
arrangement or other contract which has as one of its purposes the 
provision of assistance.
    Title VI prohibits discrimination in any program or activity that 
receives Federal financial assistance. 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 that uses the Federal assistance. Thus, all parts of the 
recipient's operations would be covered by Title VI, even if the 
Federal assistance is used only by one part.
2. Basic Requirements Under Title VI
    A recipient whose policies, practices, or procedures exclude, 
limit, or have the effect of excluding or limiting, the participation 
of any LEP person in a Federally assisted program on the basis of 
national origin may be engaged in discrimination in violation of Title 
VI. In order to ensure compliance with Title VI, recipients must take 
steps to ensure that LEP persons who are eligible for their programs or 
services have meaningful access to the services, information, and 
benefits that they provide. The most important step in meeting this 
obligation is for recipients of Treasury financial assistance to 
provide the language assistance

[[Page 10480]]

necessary to ensure such access, at no cost to the LEP person.
    The type of language assistance a recipient/covered entity provides 
to ensure meaningful access will depend on a variety of factors, 
including the total resources and size of the recipient/covered entity, 
the number or proportion of the eligible LEP population it serves, the 
nature and importance of the program or service, including the 
objectives of the program, the frequency with which particular 
languages are encountered, and the frequency with which LEP persons 
come into contact with the program. These factors are consistent with 
and incorporate the standards set forth in the Department of Justice 
``Policy Guidance Document: on Enforcement of Title VI of the Civil 
Rights Act of 1964--National Origin Discrimination Against Persons With 
Limited English Proficiency (LEP Guidance),'' reprinted at 65 FR 50123 
(August 16, 2000). There is no ``one size fits all'' solution for Title 
VI compliance with respect to LEP persons. Treasury will make its 
assessment of the language assistance needed to ensure meaningful 
access on a case by case basis, and a recipient will have considerable 
flexibility in determining precisely how to fulfill this obligation. 
Treasury will focus on the end result--whether the recipient has taken 
the necessary steps to ensure that LEP persons have meaningful access 
to its programs and services.
    The key to providing meaningful access for LEP persons is to ensure 
that the recipient and LEP person can communicate effectively. The 
steps taken by a covered entity must ensure that the LEP person is 
given adequate information, is able to understand the services and 
benefits available, and is able to receive those for which he or she is 
eligible. The covered entity must also ensure that the LEP person can 
effectively communicate the relevant circumstances of his or her 
situation to the service provider.
    Experience has shown that effective language assistance programs 
usually contain the four measures described in Section 4 below. In 
reviewing complaints and conducting compliance reviews, Treasury will 
consider a program to be in compliance when the recipient effectively 
incorporates and implements these four elements. The failure to 
incorporate or implement one or more of these elements does not 
necessarily mean noncompliance with Title VI, and Treasury will review 
the totality of the circumstances to determine whether LEP persons can 
meaningfully access the services and benefits of the recipient.
3. State or Local ``English-Only'' Laws
    State or local ``English-only'' laws do not change the fact that 
recipients cannot discriminate in violation of Title VI. Entities in 
states and localities with ``English-only'' laws do not have to accept 
Federal funding. However, if they do, they have to comply with Title 
VI, including its prohibition against national origin discrimination by 
recipients.
4. Ensuring Meaningful Access to LEP Persons
    (a) The Four Keys to Title VI Compliance in the LEP Context.
    The key to providing meaningful access to benefits and services for 
LEP persons is to ensure that the language assistance provided results 
in accurate and effective communication between the provider and LEP 
applicant/client about the types of services and/or benefits available 
and about the applicant's or client's circumstances. Although Treasury 
recipients have considerable flexibility in fulfilling this obligation, 
effective programs usually have the following four elements:
     Assessment--The recipient conducts a thorough assessment 
of the language needs of the population to be served;
     Development of Comprehensive Written Policy on Language 
Access--The recipient develops and implements a comprehensive written 
policy that will ensure meaningful communication;
     Training of Staff--The recipient takes steps to ensure 
that staff understand the policy and are capable of carrying it out; 
and
     Vigilant Monitoring--The recipient conducts regular 
oversight of the language assistance program to ensure that LEP persons 
meaningfully access the program.
    If implementation of one or more of these measures would be so 
financially burdensome as to defeat the legitimate objectives of a 
recipient's program, or if the recipient utilizes an equally effective 
alternative for ensuring that LEP persons have meaningful access to 
programs and services, Treasury will not find the recipient in 
noncompliance. However, recipients should gather and maintain 
documentation to substantiate any assertion of financial burden.
    (b) Assessment.
    The first key to ensuring meaningful access is for the recipient to 
assess the language needs of the eligible population. A recipient 
assesses language needs by identifying:
     the number and proportion of LEP persons eligible to be 
served or encountered by the recipient, the frequency of contact with 
LEP language groups, the nature or importance of the activity, benefit, 
or service, and the resources of the recipient.
     the points of contact in the program or activity where 
language assistance is likely to be needed.
     the resources that will be needed to provide effective 
language assistance.
     the location and availability of these resources.
     the arrangements that must be made to access these 
resources in a timely fashion.
    (c) Development of Comprehensive Written Policy on Language Access.
    A recipient can ensure effective communication by developing and 
implementing a comprehensive written language assistance program. This 
program should include: policies and procedures for identifying and 
assessing the language needs of its LEP applicants/clients; a range of 
oral language assistance options; notice to LEP persons in a language 
they can understand of the right to free language assistance; periodic 
training of staff; monitoring of the program; and translation of 
written materials in certain circumstances.\2\
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    \2\ The Americans with Disabilities Act and Section 504 of the 
Rehabilitation Act of 1973 both provide similar prohibitions against 
discrimination on the basis of disability and require entities to 
provide language assistance such as sign language interpreters for 
hearing impaired individuals or alternative formats such as Braille, 
large print or tape for vision impaired individuals. In developing a 
comprehensive language assistance program, recipients should be 
mindful of their responsibilities under the ADA and Section 504 to 
ensure access to programs for individuals with disabilities.
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    (1) Oral Language Interpretation--In designing an effective 
language assistance program, a recipient should develop procedures for 
obtaining and providing trained and competent interpreters and other 
oral language assistance services, in a timely manner, by taking some 
or all of the following steps:
     Hiring bilingual staff who are trained and competent in 
the skill of interpreting;
     Hiring staff interpreters who are trained and competent in 
the skill of interpreting;
     Contracting with an outside interpreter service for 
trained and competent interpreters;
     Arranging formally for the services of voluntary community 
interpreters who are trained and competent in the skill of 
interpreting;
     Arranging/contracting for the use of a telephone language 
interpreter service.
    See Section D.6. (b)of this notice for a discussion on ``Competence 
of Interpreters.''

[[Page 10481]]

    The following provides guidance to recipients in determining which 
language assistance options will be of sufficient quantity and quality 
to meet the needs of their LEP beneficiaries:
     Bilingual Staff--Hiring bilingual staff for client contact 
positions facilitates participation by LEP persons. However, where 
there are a variety of LEP language groups in a recipient's service 
area, this option may be insufficient to meet the needs of all LEP 
applicants and clients. Where this option is insufficient to meet the 
needs, the recipient must provide additional and timely language 
assistance. Bilingual staff must be trained and must demonstrate 
competence as interpreters.
     Staff Interpreters--Paid staff interpreters are especially 
appropriate where there is a frequent and/or regular need for 
interpreting services. These persons must be competent and readily 
available.
     Contract Interpreters--The use of contract interpreters 
may be an option for recipients that have an infrequent need for 
interpreting services, have less common LEP language groups in their 
service areas, or need to supplement their in-house capabilities on an 
as-needed basis. Such contract interpreters must be readily available 
and competent.
     Community Volunteers--Use of community volunteers may 
provide recipients with a cost-effective method for providing 
interpreter services. However, experience has shown that to use 
community volunteers effectively, recipients must ensure that formal 
arrangements for interpreting services are made with community 
organizations so that these organizations are not subjected to ad hoc 
requests for assistance. In addition, recipients must ensure that these 
volunteers are competent as interpreters and understand their 
obligation to maintain client confidentiality. Additional language 
assistance must be provided where competent volunteers are not readily 
available during all hours of service.
     Telephone Interpreter Lines--A telephone interpreter 
service line may be a useful option as a supplemental system, or may be 
useful when a recipient encounters a language that it cannot otherwise 
accommodate. Such a service often offers interpreting assistance in 
many different languages and usually can provide the service in quick 
response to a request. However, recipients should be aware that such 
services may not always have readily available interpreters who are 
familiar with the terminology peculiar to the particular program or 
service. It is important that a recipient not offer this as the only 
language assistance option except where other language assistance 
options are unavailable.
    (2) Translation of Written Materials--An effective language 
assistance program ensures that written materials that are routinely 
provided in English to applicants, clients and the public are available 
in regularly encountered languages other than English. It is 
particularly important to ensure that vital documents are translated. A 
document will be considered vital if it contains information that is 
critical for accessing the services, rights, and/or benefits, 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. For 
instance, if a complaint form is necessary in order to file a claim 
with an agency, that complaint form would be vital information. Non-
vital information includes documents that are not critical to access 
such benefits and services.
    As part of its overall language assistance program, a recipient 
must develop and implement a plan to provide 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)). Treasury will determine the extent of the recipient's 
obligation to provide written translation of documents on a case by 
case basis, taking into account all relevant circumstances, including: 
(1) The nature, importance, and objective of the particular activity, 
program, or service; (2) the number or proportion of LEP persons 
eligible to be served or encountered by the recipient; (3) the 
frequency with which translated documents are needed; and (4) the total 
resources available to the recipient as compared to the length of the 
document and cost of translation.
    One way for a recipient to know with greater certainty that it will 
be found in compliance with its obligation to provide written 
translations in languages other than English is for the recipient to 
meet the guidelines outlined in paragraphs (A) and (B) below, which 
outline the circumstances that provide a ``safe harbor'' for 
recipients. A recipient that provides written translations under these 
circumstances can be confident that it will be found in compliance with 
its obligation under Title VI regarding written translations.\3\ 
However, the failure to provide written translations under these 
circumstances outlined in paragraphs (A) and (B) will not necessarily 
mean noncompliance with Title VI.
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    \3\ The ``safe harbor'' provisions are not intended to establish 
numerical thresholds for when a recipient must translate documents. 
The numbers and percentages included in these provisions are based 
on the balancing of a number of factors, including experience in 
enforcing Title VI in the context of Treasury programs, and 
Treasury's discussions with other agecies about experiences of their 
grant recipients with language across issues.
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    In such situations, Treasury will review the totality of the 
circumstances to determine the precise nature of a recipient's 
obligation to provide written materials in languages other than English 
as indicated earlier.
    Treasury will consider a recipient to be in compliance with its 
Title VI obligation to provide written materials in non-English 
languages if:
    (A) The recipient provides translated written materials, including 
vital documents, for each eligible LEP language group that constitutes 
ten percent or 3,000, whichever is less, of the population of persons 
eligible to be served or likely to be directly affected by the 
recipient's program \4\;
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    \4\ See section D.4.(c)(2) above for a description of vital 
documents. Large documents, such as enrollment handbooks, may not 
need to be translated in their entirety. However, vital information 
contained in large documents must be translated.
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    (B) Regarding LEP language groups that do not fall within paragraph 
(A) above, but constitute five percent or 1,000, whichever is less, of 
the population of persons eligible to be served or likely to be 
directly affected, the recipient ensures that, at a minimum, vital 
documents are translated into the appropriate non-English languages of 
such LEP persons. Translation of other documents, if needed, can be 
provided orally; and
    (C) Notwithstanding paragraphs (A) and (B) above, a recipient with 
fewer than 100 persons in a language group eligible to be served or 
likely to be directly affected by the recipient's program, does not 
translate written materials but provides written notice in the primary 
language of the LEP language group of the right to receive competent 
oral translation of written materials.
    The term ``persons eligible to be served or likely to be directly 
affected'' relates to the issue of what is the recipient's service area 
for purposes of meeting its Title VI obligation. There is no ``one size 
fits all'' definition of what constitutes ``persons eligible to be

[[Page 10482]]

served or likely to be directly affected'' and Treasury will address 
this issue on a case by case basis. Ordinarily, these persons are those 
who are in the geographic area that has been approved by a Federal 
grant agency as the recipient's service area. Thus, for language groups 
that do not fall within paragraphs (A) and (B), above, a recipient can 
ensure access by providing written notice in the LEP person's primary 
language of the right to receive free language assistance.
    Recent technological advances have made it easier for recipients to 
store translated documents readily. At the same time, Treasury 
recognizes that recipients in a number of areas, such as many large 
cities, regularly serve LEP persons from many different areas of the 
world who speak dozens of different languages. It would be unduly 
burdensome to demand that recipients in these circumstances translate 
all written materials into these languages. As a result, Treasury will 
determine the extent of the recipient's obligation to provide written 
translations of documents on a case by case basis, looking at the 
totality of the circumstances.
    It is also important to ensure that the person translating the 
materials is well qualified. In addition, in some circumstances 
verbatim translation of materials may not accurately or appropriately 
convey the substance of what is contained in the written materials. An 
effective way to address this potential problem is to reach out to 
community-based organizations to review translated materials to ensure 
that they are accurate and easily understood by LEP persons.
    (3) Methods for Providing Notice to LEP Persons--A vital part of a 
well-functioning compliance program includes having effective methods 
for notifying LEP persons of their right to language assistance and the 
availability of such assistance free of charge. These methods include 
but are not limited to:
     Use of language identification cards that allow LEP 
persons to identify their language needs to staff. To be effective, the 
cards (e.g., ``I speak'' cards) must invite the LEP person to identify 
the language he/she speaks.
     Posting and maintaining signs in regularly encountered 
languages other than English in waiting rooms, reception areas and 
other initial points of entry. To be effective, these signs must inform 
LEP persons of their right to free language assistance services and 
invite them to identify themselves as persons needing such services.
     Translation of application forms and instructional, 
informational and other written materials into appropriate non-English 
languages by competent translators. For LEP persons whose language does 
not exist in written form, assistance from an interpreter to explain 
the contents of the document.
     Uniform procedures for timely and effective telephone 
communication between staff and LEP persons. This must include 
instructions for English-speaking employees to obtain assistance from 
interpreters or bilingual staff when receiving calls from or initiating 
calls to LEP persons.
     Inclusion of statements about the services available and 
the right to free language assistance services, in appropriate non-
English languages, in brochures, booklets, outreach and recruitment 
information, and other materials that are routinely disseminated to the 
public.
    (d) Training of Staff.
    Another vital element in ensuring that its policies are followed is 
a recipient's dissemination of its policy to all employees likely to 
have contact with LEP persons, and periodic training of these 
employees. Effective training ensures that employees are knowledgeable 
and aware of LEP policies and procedures, are trained to work 
effectively with in-person and telephone interpreters, and understand 
the dynamics of interpretation between clients, providers and 
interpreters. It is important that this training be part of the 
orientation for new employees and that all employees in client contact 
positions be properly trained. Recipients may find it useful to 
maintain a training registry that records the names and dates of 
employees' training. Effective training is one means of ensuring that 
there is not a gap between a recipient's written policies and 
procedures, and the actual practices of employees who are in the front 
lines interacting with LEP persons.
    (e) Monitoring and Updating the LEP policy.
    Recipients should always consider whether new documents, programs, 
services, and activities need to be made accessible for LEP 
individuals. They should then provide needed language services and 
notice of those services to the LEP public and to employees. In 
addition, Treasury recipients should evaluate their entire language 
policy at least every three years. One way to evaluate the LEP policy 
is to seek feedback from the community. Recipients should assess:
     Current LEP populations in service area.
     Current communication needs of LEP individuals encountered 
by the program.
     Whether existing assistance is meeting the needs of such 
persons.
     Whether staff knows and understands the LEP policy and how 
to implement it.
     Whether identified sources for assistance are still 
available and viable.
5. Treasury's Assessment of Meaningful Access
    The failure to take all of the steps outlined in Section D(4), 
above, will not necessarily mean that a recipient has failed to provide 
meaningful access to LEP clients. The following are examples of how 
meaningful access will be assessed by Treasury:
     A small recipient has about 50 LEP Hispanic clients and a 
small number of employees, and asserts that he cannot afford to hire 
bilingual staff, contract with a professional interpreter service, or 
translate written documents. To accommodate the language needs of LEP 
clients, the recipient has made arrangements with a Hispanic community 
organization for trained and competent volunteer interpreters, and with 
a telephone interpreter language line, to interpret during 
consultations 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. Given the resources, the size of 
the staff, and the size of the LEP population, Treasury would find this 
recipient in compliance with Title VI.
     A recipient with a large budget serves 500,000 
beneficiaries. Of the beneficiaries eligible for services, 3,500 are 
LEP Chinese persons, 4,000 are LEP Hispanic persons, 2,000 are LEP 
Vietnamese persons and about 400 are LEP Laotian persons. The recipient 
has no policy regarding language assistance to LEP persons, and LEP 
clients are told to bring their own interpreters, 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. Given the size of this program, 
its resources, the size of the eligible LEP population, and the nature 
of the program, Treasury would likely find this recipient in violation 
of Title VI and would likely require it to develop a comprehensive 
language assistance program that includes all of the options discussed 
in Section D.4, above.
6. Interpreters
    Two recurring issues in the area of interpreter services involve 
(a) the use of friends, family, or minor children as interpreters, and 
(b) the need to ensure that interpreters are competent.

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    (a) Use of Friends, Family and Minor Children as Interpreters--A 
recipient may expose itself to liability under Title VI if it requires, 
suggests, or encourages an LEP person to use friends, minor children, 
or family members as interpreters, as this could compromise the 
effectiveness of the service. Use of such persons could result in a 
breach of confidentiality or reluctance on the part of individuals to 
reveal personal information critical to their situations. In addition, 
family and friends usually are not competent to act as interpreters, 
since they are often insufficiently proficient in both languages, 
unskilled in interpretation, and unfamiliar with specialized 
terminology.
    If after a recipient informs an LEP person of the right to free 
interpreter services, the person declines such services and requests 
the use of a family member or friend, the recipient may use the family 
member or friend, if the use of such a person would not compromise the 
effectiveness of services or violate the LEP person's confidentiality. 
The recipient should document the offer and decline in the LEP person's 
file. Even if an LEP person elects to use a family member or friend, 
the recipient should suggest that a trained interpreter sit in on the 
encounter to ensure accurate interpretation.
    (b) Competence of Interpreters--In order to provide effective 
services to LEP persons, a recipient must ensure that it uses persons 
who are competent to provide interpreter services. Competency does not 
necessarily mean formal certification as an interpreter, though 
certification is helpful. On the other hand, competency requires more 
than self-identification as bilingual. The competency requirement 
contemplates demonstrated proficiency in both English and the other 
language, orientation and training that includes the skills and ethics 
of interpreting (e.g., issues of confidentiality), fundamental 
knowledge in both languages of any specialized terms, or concepts 
peculiar to the recipient's program or activity, sensitivity to the LEP 
person's culture and a demonstrated ability to convey information in 
both languages, accurately. A recipient must ensure that those persons 
it provides as interpreters are trained and demonstrate competency as 
interpreters.
7. Examples of Prohibited Practices
    Listed below are examples of practices which may violate Title VI:
     Providing services to LEP persons that are more limited in 
scope or are lower in quality than those provided to other persons, or 
placing greater burdens on LEP than on non-LEP persons;
     Subjecting LEP persons to unreasonable delays in the 
delivery of services, or the provision of information on rights;
     Limiting participation in a program or activity on the 
basis of English proficiency;
     Failing to inform LEP persons of the right to receive free 
interpreter services and/or requiring LEP persons to provide their own 
interpreter.

E. Promising Practices

    In meeting the needs of their LEP clients, some recipients have 
found unique ways of providing interpreter services and reaching out to 
the LEP community. Examples of promising practices include the 
following:
    Language Banks--In several parts of the country, both urban and 
rural, community organizations and providers have created community 
language banks that train, hire and dispatch competent interpreters to 
participating organizations, reducing the need to have on-staff 
interpreters for low demand languages. These language banks are 
frequently nonprofit and charge reasonable rates.
    Pamphlets--A recipient has created pamphlets in several languages, 
entitled ``While Awaiting the Arrival of an Interpreter.'' The 
pamphlets are intended to facilitate basic communication between 
clients and staff. They are not intended to replace interpreters but 
may aid in increasing the comfort level of LEP persons as they wait for 
services.
    Use of Technology--Some recipients use their internet and/or 
intranet capabilities to store translated documents online. These 
documents can be retrieved as needed.
    Telephone Information Lines--Recipients have established telephone 
information lines in languages spoken by frequently encountered 
language groups to instruct callers, in the non-English languages, on 
how to leave a recorded message that will be answered by someone who 
speaks the caller's language.
    Signage and Other Outreach--Other recipients have provided 
information about services, benefits, eligibility requirements, and the 
availability of free language assistance, in appropriate languages by 
(a) posting signs and placards with this information in public places 
such as grocery stores, bus shelters and subway stations; (b) putting 
notices in newspapers, and on radio and television stations that serve 
LEP groups; (c) placing flyers and signs in the offices of community-
based organizations that serve large populations of LEP persons; and 
(d) establishing information lines in appropriate languages.

F. Model Plan

    The following example of a model language assistance program may be 
useful for recipients in developing their plans. The plan incorporates 
a variety of options and methods for providing meaningful access to LEP 
individuals:
     A formal written language assistance program.
     Identification and assessment of the languages that are 
likely to be encountered and estimating the number of LEP persons that 
are eligible for services and that are likely to be affected by its 
program through a review of census and client utilization data and data 
from school systems and community agencies and organizations.
     Posting of signs in lobbies and in other waiting areas, in 
several languages, informing applicants and clients of their right to 
free interpreter services and inviting them to identify themselves as 
persons needing language assistance.
     Use of ``I speak'' cards by intake workers and other 
contact personnel so that they can identify their primary languages.
     Keeping the language of the LEP person in his/her record 
if such a record would normally be kept for non-LEP persons so that all 
staff can identify the language assistance needs of the client.
     Employment of a sufficient number of staff, bilingual in 
appropriate languages, in client contact positions. These persons must 
be trained and competent as interpreters.
     Contracts with interpreting services that can provide 
competent interpreters in a wide variety of languages, in a timely 
manner.
     Formal arrangements with community groups for competent 
and timely interpreter services by community volunteers.
     An arrangement with a telephone language interpreter line.
     Translation of application forms, instructional, 
informational and other key documents into appropriate non-English 
languages. Provision of oral interpreter assistance with documents, for 
those persons whose language does not exist in written form.
     Procedures for effective telephone communication between 
staff and LEP persons, including instructions for English-speaking 
employees to obtain assistance from bilingual staff or interpreters 
when initiating or receiving calls from LEP persons.

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     Notice to and training of all staff, particularly client 
contact staff, with respect to the recipient's Title VI obligation to 
provide language assistance to LEP persons, and on the language 
assistance policies and the procedures to be followed in securing such 
assistance in a timely manner.
     Insertion of notices, in appropriate languages, about the 
right of LEP applicants and clients to free interpreters and other 
language assistance, in brochures, pamphlets, manuals, and other 
materials disseminated to the public and to staff.
     Notice to the public regarding the language assistance 
policies and procedures, and notice to and consultation with community 
organizations that represent LEP language groups, regarding problems 
and solutions, including standards and procedures for using their 
members as interpreters.
     Adoption of a procedure for the resolution of complaints 
regarding the provision of language assistance; and for notifying 
clients of their right to and how to file a complaint under Title VI 
with Treasury.
     Appointment of a senior level employee to coordinate the 
language assistance program, and assurance that there is regular 
monitoring of the program.

G. Compliance and Enforcement

    Treasury will enforce recipients' responsibilities to LEP 
beneficiaries through procedures provided for in Title VI regulations. 
These procedures include complaint investigations, compliance reviews, 
efforts to secure voluntary compliance, and technical assistance. 
Treasury will always provide recipients with the opportunity to come 
into voluntary compliance prior to initiating formal enforcement 
proceedings.
    In determining compliance with Title VI, Treasury's concern will be 
whether the recipient's policies and procedures allow LEP persons to 
overcome language barriers and participate meaningfully in programs, 
services and benefits. A recipient's appropriate use of the methods and 
options discussed in this guidance will be viewed by Treasury as 
evidence of a recipient's intent to comply with Title VI.

H. Complaint Process

    Anyone who believes that he/she has been discriminated against 
because of race, color or national origin in violation of Title VI may 
file a complaint with Treasury within 180 days of the date on which the 
discrimination took place.
    The following information should be included:
     Your name and address (a telephone number where you may be 
reached during business hours is helpful, but not required);
     A general description of the person(s) or class of persons 
injured by the alleged discriminatory act(s);
     The name and location of the organization or institution 
that committed the alleged discriminatory act(s);
     A description of the alleged discriminatory act(s) in 
sufficient detail to enable the Office of Equal Opportunity Program 
(OEOP) to understand what occurred, when it occurred, and the basis for 
the alleged discrimination.
     The letter or form must be signed and dated by the 
complainant or by someone authorized to do so on his or her behalf.
    A recipient may not retaliate against any person who has made a 
complaint, testified, assisted or participated in any manner in an 
investigation or proceeding under the statutes governing federal 
financial assistance programs.
    Civil rights complaints should be filed with: Department of the 
Treasury, Office of Equal Opportunity Program, 1500 Pennsylvania 
Avenue, NW, Room 6071 Metropolitan Square, Washington, DC 20220.

I. Technical Assistance

    Treasury and its bureaus will provide technical assistance to 
recipients, and will continue to be available to provide such 
assistance to any recipient seeking to ensure that it operates an 
effective language assistance program. In addition, during its 
investigative process, Treasury is available to provide technical 
assistance to enable recipients to come into voluntary compliance.

[FR Doc. 02-5421 Filed 3-6-02; 8:45 am]
BILLING CODE 4810-25-P