[Federal Register Volume 68, Number 56 (Monday, March 24, 2003)]
[Notices]
[Pages 14180-14189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6835]


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DEPARTMENT OF COMMERCE

Office of the Secretary

[Docket No.: 020125021-2021-01]


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

AGENCY: Office for Civil Rights, Office of the Secretary, Department of 
Commerce.

ACTION: Notice of policy guidance with request for comment.

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SUMMARY: The purpose of this policy guidance is to clarify the 
responsibilities of recipients of federal financial assistance 
(``recipients'') from the U.S. Department of Commerce (DOC) 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.

DATES: This guidance is effective March 24, 2003. Comments must be 
submitted within 60 days from the date of this publication in the 
Federal Register. DOC 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 Mr. 
Jorge Ponce, Office of Civil Rights, Room 6003, U.S. Department of 
Commerce, 14th and Constitution Ave, NW., Washington, D.C. 20230. 
Comments may also be submitted by e-mail at [email protected].

FOR FURTHER INFORMATION CONTACT: Jorge Ponce, Office of Civil Rights, 
telephone 202-482-8185, TDD: 202-482-2030. Arrangements to receive the 
policy in an alternative format may be made by contacting the named 
individual.

SUPPLEMENTARY INFORMATION: Under DOC regulations implementing Title VI 
of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq. (Title VI), 
recipients of federal financial assistance have a responsibility to 
ensure meaningful access to their programs and activities by persons 
with LEP. See 15 CFR 8.4(b)(2). The purpose of the LEP Guidance is to 
assist recipients in complying with their Title VI responsibilities to 
ensure that access to their programs or activities, normally provided 
in English, are accessible to LEP persons. It clarifies existing 
statutory and regulatory requirements for LEP persons by providing a 
description of the factors recipients should consider in fulfilling 
their responsibilities to LEP persons. It also reiterates DOC's 
longstanding position that in order to avoid discrimination against LEP 
persons on grounds of national origin, recipients must take adequate 
steps to ensure that such persons receive the language assistance 
necessary to afford them meaningful access to the programs, services, 
and information those recipients provide, free of charge.
    Executive Order 13166 (E.O.), reprinted at 65 FR 50121 (August 16, 
2000), directs each federal agency that extends assistance subject to 
the requirements of Title VI to publish guidance for its respective 
recipients clarifying that obligation. The E.O. further directs that 
all such guidance documents be consistent with the compliance standards 
and framework detailed in DOJ Policy Guidance entitled ``Enforcement of 
Title VI of the Civil Rights Act of 1964--National Origin 
Discrimination Against Persons with Limited English Proficiency.'' See 
65 FR 50123 (August 16, 2000). On March 14, 2002, the Office of 
Management and Budget (OMB) issued a Report to Congress titled 
``Assessment of the Total Benefits and Costs of Implementing Executive 
Order No. 13166: Improving Access to Services for Persons with Limited 
English Proficiency.'' Among other things, the Report recommended the 
adoption of uniform guidance across all Federal agencies, with 
flexibility to permit tailoring to each agency's specific recipients. 
Consistent with this OMB recommendation, DOJ published LEP Guidance for 
DOJ recipients which was drafted and organized to also function as a 
model for similar guidance documents by other Federal grant agencies. 
See 67 FR 41455 (June 18, 2002). The LEP Guidance is consistent with 
the goals set forth in E.O. 13166, and with the DOJ policy guidance 
documents dated August 16, 2002, and June 18, 2002.
    Because this guidance must adhere to the federal-wide compliance 
standards and framework detailed in the model DOJ LEP Guidance, DOC 
specifically solicits comments on the nature, scope and appropriateness 
of the DOC-specific examples set out in this guidance explaining and/or 
highlighting how those consistent federal-wide compliance standards are 
applicable to recipients of federal financial assistance through the 
DOC.
    Under the Administrative Procedure Act, 5 U.S.C. 553(b)(A), 
interpretive rules, general statements of policy, and rules of agency 
organization, procedure, or practice are exempt from notice and 
comment. Because this policy guidance is a general statement of policy 
without the force and effect of law, it falls within this exception and 
prior notice and opportunity for public comment is not required. This 
policy guidance is not subject to the requirements of Executive Order 
12866.

    Dated: February 28, 2003.
Suzan J. Aramaki,
Director, Office of Civil Rights.

I. Introduction

    Most individuals living in the United States read, write, speak and 
understand English. There are many individuals, however, for whom 
English is not their primary language. For instance, based on the 2000 
census, over 26 million individuals speak Spanish and almost 7 million 
individuals speak an Asian or Pacific Island language at home. If these 
individuals have a limited ability to read, write, speak, or understand 
English, they are limited English proficient, or ``LEP.'' While 
detailed data from the 2000 census has not yet

[[Page 14181]]

been released, 26% of all Spanish-speakers, 29.9% of all Chinese-
speakers, and 28.2% of all Vietnamese-speakers reported that they spoke 
English ``not well'' or ``not at all'' in response to the 1990 census.
    Language for LEP individuals can be a barrier to accessing 
important benefits or services, understanding and exercising important 
rights, complying with applicable responsibilities, or understanding 
other information provided by federally funded programs and activities. 
The Federal Government funds an array of services that can be made 
accessible to otherwise eligible LEP persons. The Federal Government is 
committed to improving the accessibility of these programs and 
activities to eligible LEP persons, a goal that reinforces its equally 
important commitment to promoting programs and activities designed to 
help individuals learn English. Recipients should not overlook the 
long-term positive impacts of incorporating or offering English as a 
Second Language (ESL) programs in parallel with language assistance 
services. ESL courses can serve as an important adjunct to a proper LEP 
plan. However, the fact that ESL classes are made available does not 
obviate the statutory and regulatory requirement to provide meaningful 
access for those who are not yet English proficient. Recipients of 
federal financial assistance have an obligation to reduce language 
barriers that can preclude meaningful access by LEP persons to 
important government services.\1\
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    \1\ DOC recognizes that many recipients had language assistance 
programs in place prior to the issuance of Executive Order 13166. 
This policy guidance provides a uniform framework for a recipient to 
integrate, formalize, and assess the continued vitality of these 
existing and possibly additional reasonable efforts based on the 
nature of its program or activity, the current needs of the LEP 
populations it encounters, and its prior experience in providing 
language services in the community it serves.
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    In certain circumstances, failure to ensure that LEP persons can 
effectively participate in or benefit from federally assisted programs 
and activities may violate the prohibition under Title VI of the Civil 
Rights Act of 1964, 42 U.S.C. 2000d and Title VI regulations against 
national origin discrimination. The purpose of this policy guidance is 
to assist recipients in fulfilling their responsibilities to provide 
meaningful access to LEP persons under existing law, including the 
preparation of a LEP plan, as appropriate. This policy guidance 
clarifies existing legal requirements for LEP persons by providing a 
description of the factors recipients should consider in fulfilling 
their responsibilities to LEP persons.\2\ These are the criteria the 
Department of Commerce (DOC) will use in evaluating whether recipients 
are in compliance with Title VI and Title VI regulations.
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    \2\ The policy guidance is not a regulation but rather a guide. 
Title VI and its implementing regulations require that recipients 
take responsible steps to ensure meaningful access by LEP persons. 
This guidance provides an analytical framework that recipients may 
use to determine how best to comply with statutory and regulatory 
obligations to provide meaningful access to the benefits, services, 
information, and other important portions of their programs and 
activities for individuals who are limited English proficient.
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    As with most government initiatives, this requires balancing 
several principles. While this Guidance discusses that balance in some 
detail, it is important to note the basic principles behind that 
balance. First, we must ensure that federally-assisted programs aimed 
at the American public do not leave some behind simply because they 
face challenges communicating in English. This is of particular 
importance because, in some cases, LEP individuals may form a 
substantial portion of those encountered in federally-assisted 
programs. Second, we must achieve this goal while finding constructive 
methods to reduce the costs of LEP requirements on small businesses, 
small local governments, or small non-profits that receive federal 
financial assistance.
    There are many productive steps that the federal government, either 
collectively or as individual grant agencies, can take to help 
recipients reduce the costs of language services without sacrificing 
meaningful access for LEP persons. Without these steps, certain smaller 
grantees may well choose not to participate in federally assisted 
programs, threatening the critical functions that the programs strive 
to provide. To that end, the Department, in conjunction with DOJ, plans 
to continue to provide assistance and guidance in this important area. 
In addition, DOC plans to work with recipients, state and local 
administrative agencies, and LEP persons to identify and share model 
plans, examples of best practices, and cost-saving approaches. 
Moreover, DOC intends to explore how language assistance measures, 
resources and cost-containment approaches developed with respect to its 
own Federally conducted programs and activities can be effectively 
shared or otherwise made available to recipients, particularly small 
businesses, small localgovernments, and small non-profits. An 
interagency working group on LEP has developed a Web site, http://www.lep.gov, to assist in disseminating this information to recipients, 
federal agencies, and the communities being served.
    Many commentators have noted that some have interpreted the case of 
Alexander v. Sandoval, 532 U.S. 275 (2001), as impliedly striking down 
the regulations promulgated under Title VI that form the basis for the 
part of the E.O. that applies to federally assisted programs and 
activities. Consistent with the position of DOJ detailed below, DOC 
takes n the position that this is not the case, and will continue to do 
so. Accordingly, DOC will strive to ensure that federally assisted 
programs and activities work in a way that is effective for all 
eligible beneficiaries, including those with limited English 
proficiency.

II. Legal Authority

    Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d, provides that no person shall ``on the ground of race, color, or 
national origin, be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination under any program or 
activity receiving Federal financial assistance.'' Section 602 
authorizes and directs federal agencies that are empowered to extend 
federal financial assistance to any program or activity ``to effectuate 
the provisions of [section 601] * * * by issuing rules, regulations, or 
orders of general applicability.'' 42 U.S.C. 2000d-1.
    The DOC regulations promulgated pursuant to section 602 forbid 
recipients from ``utiliz[ing] criteria or methods of administration 
which have the effect of subjecting individuals to discrimination 
because of their race, color, or national origin, or have the effect of 
defeating or substantially impairing accomplishment of the objectives 
of the program as respects individuals of a particular race, color, or 
national origin.'' 15 CFR 8(b)(2).
    The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974), 
interpreted regulations promulgated by the former Department of Health, 
Education, and Welfare, including a regulation similar to that of DOC, 
45 CFR 80.3(b)(2), to hold that Title VI prohibits conduct that has a 
disproportionate effect on LEP persons because such conduct constitutes 
national-origin discrimination. In Lau, a San Francisco school district 
that had a significant number of non-English speaking students of 
Chinese origin was required to take reasonable steps to provide them 
with a meaningful opportunity to participate in federally funded 
educational programs.
    On August 11, 2000, the E.O. was issued--``Improving Access to 
Services for Persons with Limited English

[[Page 14182]]

Proficiency,'' 65 FR 50121 (August 16, 2000). Under that order, every 
federal agency that provides financial assistance to non-federal 
entities must publish guidance on how their recipients can provide 
meaningful access to LEP persons and thus comply with Title VI 
regulations forbidding funding recipients from ``restrict[ing] an 
individual in any way in the enjoyment of any advantage or privilege 
enjoyed by others receiving any service, financial aid, or other 
benefit under the program'' or from ``utiliz[ing] criteria or methods 
of administration which have the effect of subjecting individuals to 
discrimination because of their race, color, or national origin, or 
have the effect of defeating or substantially impairing accomplishment 
of the objectives of the program as respects individuals of a 
particular race, color, or national origin.''
    On that same day, DOJ issued a general guidance document addressed 
to ``Executive Agency Civil Rights Officers'' setting forth general 
principles for agencies to apply in developing guidance documents for 
recipients pursuant to the E.O. ``Enforcement of Title VI of the Civil 
Rights Act of 1964 National Origin Discrimination Against Persons With 
Limited English Proficiency,'' 65 FR 50123 (August 16, 2000) (``DOJ LEP 
Guidance''). The DOJ role under the (E.O.) is unique. The E.O. charges 
DOJ with responsibility for providing LEP Guidance to other Federal 
agencies and for ensuring consistency among each agency-specific 
guidance. Consistency among Departments of the Federal Government is 
particularly important. Inconsistency or contradictory guidance could 
confuse recipients of federal funds and needlessly increase costs 
without rendering the meaningful access for LEP persons that this 
Guidance is designed to address.
    Subsequently, federal agencies raised questions regarding the 
requirements of the E.O., especially in light of the Supreme Court's 
decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On October 26, 
2001, Ralph F. Boyd, Jr., Assistant Attorney General for the Civil 
Rights Division, issued a memorandum for ``Heads of Departments and 
Agencies, General Counsels and Civil Rights Directors.'' This 
memorandum clarified and reaffirmed the DOJ LEP Guidance in light of 
Sandoval.\3\ The Assistant Attorney General stated that because 
Sandoval did not invalidate any Title VI regulations that proscribe 
conduct that has a disparate impact on covered groups--the types of 
regulations that form the legal basis for the part of the E.O. that 
applies to federally assisted programs and activities--the E.O. remains 
in force.
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    \3\ The memorandum noted that some commentators have interpreted 
Sandoval as impliedly striking down the disparate-impact regulations 
promulgated under Title VI that form the basis for the part of 
Executive Order 13166 that applies to federally assisted programs 
and activities. See, e.g., Sandoval, 532 U.S. at 286, 286 n.6 
(``[W]e assume for purposes of this decision that section 602 
confers the authority to promulgate disparate-impact regulations; * 
* * We cannot help observing, however, how strange it is to say that 
disparate-impact regulations are `inspired by, at the service of, 
and inseparably intertwined with Sec. 601 * * * when Sec. 601 
permits the very behavior that the regulations forbid.''). The 
memorandum, however, made clear that DOJ disagreed with the 
commentators' interpretation. Sandoval holds principally that there 
is no private right of action to enforce Title VI disparate-impact 
regulations. It did not address the validity of those regulations or 
Executive Order 13166 or otherwise limit the authority and 
responsibility of federal grant agencies to enforce their own 
implementing regulations.
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III. Who Is Covered?

    The DOC regulations, 15 CFR 8.4(b)(2), require all recipients of 
federal financial assistance to provide meaningful access to LEP 
persons.\4\ Federal financial assistance includes grants, training, use 
of equipment, donations of surplus property, and other assistance. The 
fundamental premise of the E.O. is that the Federal Government provides 
and funds an array of services that can be made accessible to otherwise 
eligible persons who are not proficient in the English language.
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    \4\ Pursuant to Executive Order 13166, the meaningful access 
requirement of the Title VI regulations and the four-factor analysis 
set forth in the DOJ LEP Guidance are to additionally apply to the 
programs and activities of federal agencies, including the 
Department of Commerce.
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    To this end, the E.O. provides that federal agencies shall work to 
ensure that recipients of federal financial assistance (recipients) 
provide meaningful access to their LEP applicants and beneficiaries. In 
general, the DOC does not fund recipients who, in turn, provide 
services and benefits of the entitlement-type to the general public. 
The DOC does, however, fund recipients of the following DOC programs 
who provide information and services to the public relating to various 
aspects of business or economic development:
    [sbull] Economic Development Administration's Economic Adjustment 
Program and Trade Adjustment Program;
    [sbull] International Trade Administration's Trade Development and 
Commercial Service programs; and
    [sbull] Minority Business Development Agency's Minority Business 
Development Centers; Native American Business Development Centers; and 
Minority Business Opportunity Committee Program.

Subrecipients likewise are covered when federal funds are passed 
through from one recipient to a subrecipient.
    Coverage extends to a recipient's entire program or activity, i.e., 
to all parts of a recipient's operations. This is true even if only one 
part of the recipient receives the federal assistance.\5\
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    \5\ However, if a federal agency were to decide to terminate 
federal funds based on noncompliance with Title VI or its 
regulations, only funds directed to the particular program or 
activity that is out of compliance would be terminated. 42 U.S.C. 
2000d-1.
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    Example: DOC provides assistance to a university to provide 
business development services to minority firms. All operations of the 
university--not just the business department--are covered.
    Finally, some recipients operate in jurisdictions in which English 
has been declared the official language. Nonetheless, these recipients 
continue to be subject to federal non-discrimination requirements, 
including those applicable to the provision of federally assisted 
services to persons with LEP.

IV. Who Is a Limited English Proficient Individual?

    Individuals who do not speak English as their primary language and 
who have a limited ability to read, write, speak, or understand English 
can be limited English proficient, or ``LEP,'' entitled to language 
assistance with respect to a particular type of service, benefit, or 
encounter.
    Examples of populations likely to include LEP persons who are 
encountered and/or served by DOC recipients and should be considered 
when planning language services include, but are not limited to:
    [sbull] Persons who are seeking technical assistance about starting 
or expanding a business.
    [sbull] Persons in rural and urban areas of the nations 
experiencing high unemployment, low income, or other severe economic 
distress.
    [sbull] Persons in underserved communities interested in accessing 
telecommunications and information technologies.

V. How Does a Recipient Determine the Extent of Its Obligation To 
Provide LEP Services?

    Recipients are required to take reasonable steps to ensure 
meaningful access to their programs and activities by LEP persons. 
While designed to be a

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flexible and fact-dependent standard, the starting point is an 
individualized assessment that balances the following four factors: (1) 
The number or proportion of LEP persons eligible to be served or likely 
to be encountered by the program or grantee; (2) the frequency with 
which LEP individuals come in contact with the program; (3) the nature 
and importance of the program, activity, or service provided by the 
program to people's lives; and (4) the resources available to the 
grantee/recipient and costs. As indicated above, the intent of this 
guidance is to suggest a balance that ensures meaningful access by LEP 
persons to critical services while not imposing undue burdens on small 
business, small local governments, or small nonprofits.
    After applying the above four-factor analysis, a recipient may 
conclude that different language assistance measures are sufficient for 
the different types of programs or activities in which it engages. For 
instance, some of a recipient's activities will be more important than 
others and/or have greater impact on or contact with LEP persons, and 
thus may require more in the way of language assistance. The 
flexibility that recipients have in addressing the needs of the LEP 
populations they serve does not diminish, and should not be used to 
minimize, the obligation that those needs be addressed. DOC recipients 
should apply the following four factors to the various kinds of 
contacts that they have with the public to assess language needs and 
decide what reasonable steps they should take to ensure meaningful 
access for LEP persons.

(1) The Number or Proportion of LEP Persons Served or Encountered in 
the Eligible Service Population

    One factor in determining what language services recipients should 
provide is the number or proportion of LEP persons from a particular 
language group served or encountered in the eligible service 
population. The greater the number or proportion of these LEP persons, 
the more likely language services are needed. Ordinarily, persons 
``eligible to be served, or likely to be directly affected, by'' a 
recipient's program or activity are those who are served or encountered 
in the eligible service population. This population will be program-
specific, and includes persons who are in the geographic area that has 
been approved by a federal grant agency as the recipient's service 
area. However, where, for instance, a geographic area serves a large 
LEP population, the appropriate service area is most likely the 
geographic area, and not the entire population served by the 
department. Where no service area has previously been approved, the 
relevant service area may be that which is approved by state or local 
authorities or designated by the recipient itself, provided that these 
designations do not themselves discriminatorily exclude certain 
populations.
    Recipients should first examine their prior experiences with LEP 
encounters and determine the breadth and scope of language services 
that were needed. In conducting this analysis, it is important to 
include language minority populations that are eligible for their 
programs or activities but may be underserved because of existing 
language barriers. Other data should be consulted to refine or validate 
a recipient's prior experience, including the latest census data for 
the area served, data from school systems and from community 
organizations, and data from state and local governments.\6\ Community 
agencies, school systems, religious organizations, legal aid entities, 
and others can often assist in identifying populations for whom 
outreach is needed and who would benefit from the recipients' programs 
and activities were language services provided.
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    \6\ The focus of the analysis is on lack of English proficiency, 
not the ability to speak more than one language. Note that 
demographic data may indicate the most frequently spoken languages 
other than English and the percentage of people who speak that 
language who speak or understand English less than well. Some of the 
most commonly spoken languages other than English may be spoken by 
people who are also overwhelmingly proficient in English. Thus, they 
may not be the languages spoken most frequently by limited English 
proficient individuals. When using demographic data, it is important 
to focus in on the languages spoken by those who are not proficient 
in English.
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(2) The Frequency With Which LEP Individuals Come in Contact With the 
Program

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

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

    The more important the activity, information, service, or program, 
or the greater the possible consequences of the contact to the LEP 
individuals, the more likely language services are needed. The 
obligations to communicate rights to emergency benefits or assistance 
to a person who has been the victim of a sudden natural disaster 
differ, for example, from those applicable to internet forums for beta 
testers of proposed small business software. A recipient needs to 
determine whether denial or delay of access to services or information 
could have serious or even life-threatening implications for the LEP 
individual. Decisions by a Federal, State, or local entity to make an 
activity compulsory can serve as strong evidence of the program's 
importance.

(4) The Resources Available to the Recipient and Costs

    A recipient's level of resources and the costs that would be 
imposed on it may have an impact on the nature of the steps it should 
take. Smaller recipients with more limited budgets are not expected to 
provide the same level of language services as larger recipients with 
larger budgets. In addition, ``reasonable steps'' may cease to be 
reasonable where the costs imposed substantially exceed the benefits.
    Resource and cost issues, however, can often be reduced by 
technological advances; the sharing of language assistance materials 
and services among and between recipients, advocacy groups, and Federal 
grant agencies; and reasonable business practices. Where appropriate, 
training bilingual staff to

[[Page 14184]]

act as interpreters and translators, information sharing through 
industry groups, telephonic and video conferencing interpretation 
services, pooling resources and standardizing documents to reduce 
translation needs, using qualified translators and interpreters to 
ensure that documents need not be ``fixed'' later and that inaccurate 
interpretations do not cause delay or other costs, centralizing 
interpreter and translator services to achieve economies of scale, or 
the formalized use of qualified community volunteers, for example, may 
help reduce costs.\7\ Recipients should carefully explore the most 
cost-effective means of delivering competent and accurate language 
services before limiting services due to resource concerns. Large 
entities and those entities serving a significant number or proportion 
of LEP persons should ensure that their resource limitations are well-
substantiated before using this factor as a reason to limit language 
assistance. Such recipients may find it useful to be able to 
articulate, through documentation or in some other reasonable manner, 
their process for determining that language services would be limited 
based on resources or costs.
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    \7\ Small recipients with limited resources may find that 
entering into a bulk telephonic interpretation service contract will 
prove cost effective.
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    This four-factor analysis necessarily implicates the ``mix'' of LEP 
services required. Recipients have two main ways to provide language 
services: Oral interpretation either in person or via telephone 
interpretation service (hereinafter ``interpretation'') and written 
translation (hereinafter ``translation''). Oral interpretation can 
range from on-site interpreters for critical services provided to a 
high volume of LEP persons to access through commercially-available 
telephonic interpretation services. Written translation, likewise, can 
range from translation of an entire document to translation of a short 
description of the document. In some cases, language services should be 
made available on an expedited basis while in others the LEP individual 
may be referred to another office of the recipient for language 
assistance.
    The correct mix should be based on what is both necessary and 
reasonable in light of the four-factor analysis. For instance, a 
Minority Business Development Center in a largely Asian-Pacific 
community may need immediately available oral interpreters and should 
give serious consideration to hiring some bilingual staff. In contrast, 
there may be circumstances where the importance and nature of the 
activity and number or proportion and frequency of contact with LEP 
persons may be low and the costs and resources needed to provide 
language services may be high--such as in the case of a voluntary 
general public tour of a recipient's facility--in which pre-arranged 
language services for the particular service may not be necessary. 
Regardless of the type of language service provided, quality and 
accuracy of those services can be critical in order to avoid serious 
consequences to the LEP person and to the recipient. Recipients have 
substantial flexibility in determining the appropriate mix.

VI. Selecting Language Assistance Services

    Recipients have two main ways to provide language services: Oral 
and written language services. Quality and accuracy of the language 
service is critical in order to avoid serious consequences to the LEP 
person and to the recipient.

A. Oral Language Services (Interpretation)

    Interpretation is the act of listening to something in one language 
(source language) and orally translating it into another language 
(target language). Where interpretation is needed and is reasonable, 
recipients should consider some or all of the following options for 
providing competent interpreters in a timely manner:
    Competence of Interpreters. When providing oral assistance, 
recipients should ensure competency of the language service provider, 
no matter which of the strategies outlined below are used. Competency 
requires more than self-identification as bilingual. Some bilingual 
staff and community volunteers, for instance, may be able to 
communicate effectively in a different language when communicating 
information directly in that language, but not be competent to 
interpret in and out of English. Likewise, they may not be able to do 
written translations.
    Competency to interpret, however, does not necessarily mean formal 
certification as an interpreter, although certification is helpful. 
When using interpreters, recipients should ensure that they:
    Demonstrate proficiency in and ability to communicate information 
accurately in both English and in the other language and identify and 
employ the appropriate mode of interpreting (e.g., consecutive, 
simultaneous, summarization, or sight translation);
    Have knowledge in both languages of any specialized terms or 
concepts peculiar to the entity's program or activity and of any 
particularized vocabulary and phraseology used by the LEP person; \8\ 
and understand and follow confidentiality and impartiality rules to the 
same extent the recipient employee for whom they are interpreting and/
or to the extent their position requires.
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    \8\ Many languages have ``regionalisms,'' or differences in 
usage. For instance, a word that may be understood to mean something 
in Spanish for someone from Cuba may not be so understood by someone 
from Mexico. In addition, because there may be languages which do 
not have an appropriate direct interpretation of some courtroom or 
legal terms and the interpreter should be so aware and be able to 
provide the most appropriate interpretation. The interpreter should 
likely make the recipient aware of the issue and the interpreter and 
recipient can then work to develop a consistent and appropriate set 
of descriptions of these terms in that language that can be used 
again, when appropriate.
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    Understand and adhere to their role as interpreters without 
deviating into a role as counselor, legal advisor, or other roles.
    Some recipients may have additional self-imposed requirements for 
interpreters. Where individual rights depend on precise, complete, and 
accurate interpretation or translations, the use of certified 
interpreters is strongly encouraged.
    While quality and accuracy of language services is critical, the 
quality and accuracy of language services is nonetheless part of the 
appropriate mix of LEP services required. The quality and accuracy of 
language services in responding to someone who has suffered from a 
natural disaster, for example, must be extraordinarily high, while the 
quality and accuracy of language services in a bicycle safety class 
need not meet the same exacting standards.
    Finally, when interpretation is needed and is reasonable, it should 
be provided in a timely manner. To be meaningfully effective, language 
assistance should be timely. While there is no single definition for 
``timely'' applicable to all types of interactions at all times by all 
types of recipients, one clear guide is that the language assistance 
should be provided at a time and place that avoids the effective denial 
of the service, benefit, or right at issue or the imposition of an 
undue burden on or delay in important rights, benefits, or services to 
the LEP person. For example, when the timeliness of services is 
important, such as with certain activities of DOC recipients providing 
dislocation services to someone whose business was destroyed in an 
earthquake or hurricane, a recipient

[[Page 14185]]

would likely not be providing meaningful access if it had one bilingual 
staffer available one day a week to provide the service. Such conduct 
would likely result in delays for LEP persons that would be 
significantly greater than those for English proficient persons. 
Conversely, where access to or exercise of a service, benefit, or right 
is not effectively precluded by a reasonable delay, language assistance 
can likely be delayed for a reasonable period.
    Hiring Bilingual Staff. When particular languages are encountered 
often, hiring bilingual staff offers one of the best, and often most 
economical, options. Recipients can, for example, fill public contact 
positions with staff who are bilingual and competent to communicate 
directly with LEP persons in their language. If bilingual staff are 
also used to interpret between English speakers and LEP persons, or to 
orally interpret written documents from English into another language, 
they should be competent in the skill of interpreting. Being bilingual 
does not necessarily mean that a person has the ability to interpret. 
In addition, there may be times when the role of the bilingual employee 
may conflict with the role of an interpreter . Effective management 
strategies, including any appropriate adjustments in assignments and 
protocols for using bilingual staff, can ensure that bilingual staff 
are fully and appropriately utilized. When bilingual staff cannot meet 
all of the language service obligations of the recipient, the recipient 
should turn to other options.
    Hiring Staff Interpreters. Hiring interpreters may be most helpful 
where there is a frequent need for interpreting services in one or more 
languages. Depending on the facts, sometimes it may be necessary and 
reasonable to provide on-site interpreters to provide accurate and 
meaningful communication with an LEP person.
    Contracting for Interpreters. Contract interpreters may be a cost-
effective option when there is no regular need for a particular 
language skill. In addition to commercial and other private providers, 
many community-based organizations and mutual assistance associations 
provide interpretation services for particular languages. Contracting 
with and providing training regarding the recipient's programs and 
processes to these organizations can be a cost-effective option for 
providing language services to LEP persons from those language groups.
    Using Telephone Interpreter Lines. Telephone interpreter service 
lines often offer speedy interpreting assistance in many different 
languages. They may be particularly appropriate where the mode of 
communicating with an English proficient person would also be over the 
phone. Although telephonic interpretation services are useful in many 
situations, it is important to ensure that, when using such services, 
the interpreters used are competent to interpret any technical or legal 
terms specific to a particular program that may be important parts of 
the conversation. Nuances in language and non-verbal communication can 
often assist an interpreter and cannot be recognized over the phone. 
Video teleconferencing may sometimes help to resolve this issue where 
necessary. In addition, where documents are being discussed, it is 
important to give telephonic interpreters adequate opportunity to 
review the document prior to the discussion and any logistical problems 
should be addressed.
    Using Community Volunteers. In addition to consideration of 
bilingual staff, staff interpreters, or contract interpreters (either 
in-person or by telephone) as options to ensure meaningful access by 
LEP persons, use of recipient-coordinated community volunteers, working 
with, for instance, community-based organizations may provide a cost-
effective supplemental language assistance strategy under appropriate 
circumstances. They may be particularly useful in providing language 
access for a recipient's less critical programs and activities. To the 
extent the recipient relies on community volunteers, it is often best 
to use volunteers who are trained in the information or services of the 
program and can communicate directly with LEP persons in their 
language. Just as with all interpreters, community volunteers used to 
interpret between English speakers and LEP persons, or to orally 
translate documents, should be competent in the skill of interpreting 
and knowledgeable about applicable confidentiality and impartiality 
rules. Recipients should consider formal arrangements with community-
based organizations that provide volunteers to address these concerns 
and to help ensure that services are available more regularly.
    Use of Family Members or Friends as Interpreters. Although 
recipients should not plan to rely on an LEP person's family members, 
friends, or other informal interpreters to provide meaningful access to 
important programs and activities, where LEP persons so desire, they 
should be permitted to use, at their own expense, an interpreter of 
their own choosing (whether a professional interpreter, family member 
or friend) in place of or as a supplement to the free language services 
expressly offered by the recipient. LEP persons may feel more 
comfortable when a trusted family member or friend acts as an 
interpreter. In addition, in exigent circumstances that are not 
reasonably foreseeable, temporary use of interpreters not provided by 
the recipient may be necessary. However, with proper planning and 
implementation, recipients should be able to avoid most such 
situations.
    Recipients, however, should take special care to ensure that 
family, legal guardians, caretakers, and other informal interpreters 
are appropriate in light of the circumstances and subject matter of the 
program, service or activity, including protection of the recipient's 
own administrative or enforcement interest in accurate interpretation. 
In many circumstances, family members (especially children) or friends 
are not competent to provide quality and accurate interpretations. 
Issues of confidentiality, privacy, or conflict of interest may also 
arise. LEP individuals may feel uncomfortable revealing or describing 
sensitive, confidential, or potentially embarrassing personal, family, 
or financial information to a family member, friend, or member of the 
local community. In addition, such informal interpreters may have a 
personal connection to the LEP person or an undisclosed conflict of 
interest. For these reasons, when oral language services are necessary, 
recipients should generally offer competent interpreter services free 
of cost to the LEP person. For DOC recipient programs and activities, 
this is particularly true in situations in which health, safety, or 
access to important benefits and services are at stake, or when 
credibility and accuracy are important to protect an individual's 
rights and access to important services.
    While issues of competency, confidentiality, and conflict of 
interest in the use of family members (especially children) or friends 
often make their use inappropriate, the use of these individuals as 
interpreters may be an appropriate option where proper application of 
the four factors would lead to a conclusion that recipient-provided 
services are not necessary. An example of this is a voluntary 
educational tour of a recipient's facility offered to the public. 
There, the importance and nature of the activity may be relatively low 
and unlikely to implicate issues of confidentiality, conflict of 
interest, or the need for accuracy. In addition, the resources needed 
and costs of providing language

[[Page 14186]]

services may be high. In such a setting, an LEP person's use of family, 
friends, or others may be appropriate.
    If the LEP person voluntarily chooses to provide his or her own 
interpreter, a recipient should consider whether a record of that 
choice and of the recipient's offer of assistance is appropriate. Where 
precise, complete, and accurate interpretations or translations of 
information and/or testimony are critical for adjudicatory, or legal 
reasons, or where the competency of the LEP person's interpreter is not 
established, a recipient might decide to provide its own, independent 
interpreter, even if an LEP person wants to use his or her own 
interpreter as well. Extra caution should be exercised when the LEP 
person chooses to use a minor as the interpreter. While the LEP 
person's decision should be respected, there may be additional issues 
of competency, confidentiality, or conflict of interest when the choice 
involves using children as interpreters. The recipient should take care 
to ensure that the LEP person's choice is voluntary, that the LEP 
person is aware of the possible problems if the preferred interpreter 
is a minor child, and that the LEP person knows that a competent 
interpreter could be provided by the recipient at no cost.

B. Written Language Services (Translation)

    Translation is the replacement of a written text from one language 
(source language) into an equivalent written text in another language 
(target language).
    What Documents Should be Translated? After applying the four-factor 
analysis, a recipient may determine that an effective LEP plan for its 
particular program or activity includes the translation of vital 
written materials into the language of each frequently-encountered LEP 
group eligible to be served and/or likely to be affected by the 
recipient's program.
    Such written materials could include, for example:
    [sbull] Surveys and questionnaires.
    [sbull] Intake forms with the potential for important consequences.
    [sbull] Notices advising LEP persons of free language assistance.
    [sbull] Applications to participate in a recipient's program or 
activity or to receive recipient benefits or services.
    Whether or not a document (or the information it solicits) is 
``vital'' may depend upon the importance of the program, information, 
encounter, or service involved, and the consequence to the LEP person 
if the information in question is not provided accurately or in a 
timely manner. For instance, applications for bicycle safety courses 
should not generally be considered vital, whereas applications for 
business counseling could be considered vital. Where appropriate, 
recipients are encouraged to create a plan for consistently 
determining, over time and across its various activities, what 
documents are ``vital'' to the meaningful access of the LEP populations 
they serve.
    Classifying a document as vital or non-vital is sometimes 
difficult, especially in the case of outreach materials like brochures 
or other information on rights and services. Awareness of rights or 
services is an important part of ``meaningful access.'' Lack of 
awareness that a particular program, right, or service exists may 
effectively deny LEP individuals meaningful access. Thus, where a 
recipient is engaged in community outreach activities in furtherance of 
its activities, it should regularly assess the needs of the populations 
frequently encountered or affected by the program or activity to 
determine whether certain critical outreach materials should be 
translated. Community organizations may be helpful in determining what 
outreach materials may be most helpful to translate. In addition, the 
recipient should consider whether translations of outreach material may 
be made more effective when done in tandem with other outreach methods, 
including utilizing the ethnic media, schools, religious, and community 
organizations to spread a message.
    Sometimes a document includes both vital and non-vital information. 
This may be the case when the document is very large. It may also be 
the case when the title and a phone number for obtaining more 
information on the contents of the document in frequently-encountered 
languages other than English is critical, but the document is sent out 
to the general public and cannot reasonably be translated into many 
languages. Thus, vital information may include, for instance, the 
provision of information in appropriate languages other than English 
regarding where a LEP person might obtain an interpretation or 
translation of the document.
    Into What Languages Should Documents be Translated? The languages 
spoken by the LEP individuals with whom the recipient has contact 
determine the languages into which vital documents should be 
translated. A distinction should be made, however, between languages 
that are frequently encountered by a recipient and less commonly-
encountered languages. Many recipients serve communities in large 
cities or across the country. They regularly serve LEP persons who 
speak dozens and sometimes over 100 different languages. To translate 
all written materials into all of those languages is unrealistic. 
Although recent technological advances have made it easier for 
recipients to store and share translated documents, such an undertaking 
would incur substantial costs and require substantial resources. 
Nevertheless, well-substantiated claims of lack of resources to 
translate all vital documents into dozens of languages do not 
necessarily relieve the recipient of the obligation to translate those 
documents into at least several of the more frequently-encountered 
languages and to set benchmarks for continued translations into the 
remaining languages over time. As a result, the extent of the 
recipient's obligation to provide written translations of documents 
should be determined by the recipient on a case-by-case basis, looking 
at the totality of the circumstances in light of the four-factor 
analysis. Because translation is a one-time expense, consideration 
should be given to whether the upfront cost of translating a document 
(as opposed to oral interpretation) should be amortized over the likely 
lifespan of the document when applying this four-factor analysis.
    Safe Harbor. Many recipients would like to ensure with greater 
certainty that they comply with their obligations to provide written 
translations in languages other than English. Paragraphs (a) and (b) 
outline the circumstances that can provide a ``safe harbor'' for 
recipients regarding the requirements for translation of written 
materials. A ``safe harbor'' means that if a recipient provides written 
translations under these circumstances, such action will be considered 
strong evidence of compliance with the recipient's written-translation 
obligations.
    The failure to provide written translations under the circumstances 
outlined in paragraphs (a) and (b) does not mean there is non-
compliance. Rather, they provide a common starting point for recipients 
to consider whether and at what point the importance of the service, 
benefit, or activity involved; the nature of the information sought; 
and the number or proportion of LEP persons served call for written 
translations of commonly-used forms into frequently-encountered 
languages other than English. Thus, these paragraphs merely provide a 
guide for recipients that would like greater certainty of compliance 
than can be provided by a fact-intensive, four-factor analysis.


[[Page 14187]]


    Example: Even if the safe harbors are not used, if written 
translation of a certain document(s) would be so burdensome as to 
defeat the legitimate objectives of its program, the translation of 
the written materials is not necessary. Other ways of providing 
meaningful access, such as effective oral interpretation of certain 
vital documents, might be acceptable under such circumstances.

    Safe Harbor Guides. The following actions will be considered strong 
evidence of compliance with the recipient's written-translation 
obligations:
    (a) The DOC recipient provides written translations of vital 
documents for each eligible LEP language group that constitutes five 
percent or 1,000, whichever is less, of the population of persons 
eligible to be served or likely to be affected or encountered. 
Translation of other documents, if needed, can be provided orally; or
    (b) If there are fewer than 50 persons in a language group that 
reaches the five percent trigger in (a), the recipient does not 
translate vital written materials but provides written notice in the 
primary language of the LEP language group of the right to receive 
competent oral interpretation of those written materials, free of cost.
    These safe harbor provisions apply to the translation of written 
documents only. They do not affect the requirement to provide 
meaningful access to LEP individuals through competent oral 
interpreters where oral language services are needed and are 
reasonable. For example, Minority Business Development Centers should, 
where appropriate, ensure that basic information to assist LEP 
individuals in obtaining information about how to start a business is 
explained.
    Competence of Translators. As with oral interpreters, translators 
of written documents should be competent. Many of the same 
considerations apply. However, the skill of translating is very 
different from the skill of interpreting, and a person who is a 
competent interpreter may or may not be competent to translate.
    Particularly where legal or other vital documents are being 
translated, competence can often be achieved by use of certified 
translators. Certification or accreditation may not always be possible 
or necessary.\9\ Competence can often be ensured by having a second, 
independent translator ``check'' the work of the primary translator. 
Alternatively, one translator can translate the document, and a second, 
independent translator could translate it back into English to check 
that the appropriate meaning has been conveyed. This is called ``back 
translation.''
---------------------------------------------------------------------------

    \9\ For those languages in which no formal accreditation 
currently exists, a particular level of membership in a professional 
translation association can provide some indicator of 
professionalism.
---------------------------------------------------------------------------

    Translators should understand the expected reading level of the 
audience and, where appropriate, have fundamental knowledge about the 
target language group's vocabulary and phraseology. Sometimes direct 
translation of materials results in a translation that is written at a 
much more difficult level than the English language version or has no 
relevant equivalent meaning.\10\ Community organizations may be able to 
help consider whether a document is written at a good level for the 
audience. Likewise, consistency in the words and phrases used to 
translate terms of art, legal, or other technical concepts helps avoid 
confusion by LEP individuals and may reduce costs. Creating or using 
already-created glossaries of commonly-used terms may be useful for LEP 
persons and translators and cost effective for the recipient. Providing 
translators with examples of previous accurate translations of similar 
material by the recipient, other recipients, or federal agencies may be 
helpful.
---------------------------------------------------------------------------

    \10\ For instance, there may be languages which do not have an 
appropriate direct translation of some courtroom or legal terms and 
the translator should be able to provide an appropriate translation. 
The translator should likely also make the recipient aware of this. 
Recipients can then work with translators to develop a consistent 
and appropriate set of descriptions of these terms in that language 
that can be used again, when appropriate. Recipients will find it 
more effective and less costly if they try to maintain consistency 
in the words and phrases used to translate terms of art and legal or 
other technical concepts. Creating or using already-created 
glossaries of commonly used terms may be useful for LEP persons and 
translators and cost effective for the recipient. Providing 
translators with examples of previous translations of similar 
material by the recipient, other recipients, or federal agencies may 
be helpful.
---------------------------------------------------------------------------

    While quality and accuracy of translation services is critical, the 
quality and accuracy of translation services is nonetheless part of the 
appropriate mix of LEP services required. For instance, documents that 
are simple and have no legal or other consequence for LEP persons who 
rely on them may use translators that are less skilled than important 
documents with legal or other information upon which reliance has 
important consequences (including, e.g., information or documents of 
DOC recipients regarding certain health, and safety services and 
certain legal rights). The permanent nature of written translations, 
however, imposes additional responsibility on the recipient to ensure 
that the quality and accuracy permit meaningful access by LEP persons.

VII. Elements of Effective Plan on Language Assistance for LEP Persons

    After completing the four-factor analysis and deciding what 
language assistance services are appropriate, a recipient should 
develop an implementation plan to address the identified needs of the 
LEP populations they serve. Recipients have considerable flexibility in 
developing this plan. The development and maintenance of a 
periodically-updated written plan on language assistance for LEP 
persons (``LEP plan'') for use by recipient employees serving the 
public will likely be the most appropriate and cost-effective means of 
documenting compliance and providing a framework for the provision of 
timely and reasonable language assistance. Moreover, such written plans 
would likely provide additional benefits to a recipient's managers in 
the areas of training, administration, planning, and budgeting. These 
benefits should lead most recipients to document in a written LEP plan 
their language assistance services, and how staff and LEP persons can 
access those services. Despite these benefits, certain DOC recipients, 
such as recipients serving very few LEP persons and recipients with 
very limited resources, may choose not to develop a written LEP plan. 
However, the absence of a written LEP plan does not obviate the 
underlying obligation to ensure meaningful access by LEP persons to a 
recipient's program or activities. Accordingly, in the event that a 
recipient elects not to develop a written plan, it should consider 
alternative ways to articulate in some other reasonable manner a plan 
for providing meaningful access. Entities having significant contact 
with LEP persons, such as schools, religious organizations, community 
groups, and groups working with new immigrants can be very helpful in 
providing important input into this planning process from the 
beginning.
    The following five steps may be helpful in designing an LEP plan 
and are typically part of effective implementation plans.

(1) Identifying LEP Individuals Who Need Language Assistance

    The first two factors in the four-factor analysis require an 
assessment of the number or proportion of LEP individuals eligible to 
be served or encountered and the frequency of encounters. This requires 
recipients to

[[Page 14188]]

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

(2) Language Assistance Measures

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

(3) Training Staff

    Staff should know their obligations to provide meaningful access to 
information and services for LEP persons. An effective LEP plan would 
likely include training to ensure that:
    [sbull] Staff know about LEP policies and procedures.
    [sbull] Staff having contact with the public are trained to work 
effectively with in-person and telephone interpreters.
    Recipients may want to include this training as part of the 
orientation for new employees. It is important to ensure that all 
employees in public contact positions are properly trained. Recipients 
have flexibility in deciding the manner in which the training is 
provided. The more frequent the contact with LEP persons, the greater 
the need will be for in-depth training. Staff with little or no contact 
with LEP persons may only have to be aware of an LEP plan. However, 
management staff, even if they do not interact regularly with LEP 
persons, should be fully aware of and understand the plan so they can 
reinforce its importance and ensure its implementation by staff.

(4) Providing Notice to LEP Persons

    Once a recipient has decided, based on the four factors, that it 
will provide language services, it is important for the recipient to 
let LEP persons know that those services are available and that they 
are free of charge. Recipients should provide this notice in a language 
LEP persons will understand. Examples of notification that recipients 
should consider include:
    [sbull] Posting signs in intake areas and other entry points. When 
language assistance is needed to ensure meaningful access to 
information and services, it is important to provide notice in 
appropriate languages in intake areas or initial points of contact so 
that LEP persons can learn how to access those language services. This 
is particularly true in areas with high numbers of LEP persons seeking 
access to certain health, safety, dislocation or business assistance 
services or activities run by DOC recipients. For instance, signs in 
intake offices could state that free language assistance is available. 
The signs should be translated into the most common languages 
encountered. They should explain how to get the language help.\11\
---------------------------------------------------------------------------

    \11\ The Social Security Administration has made such signs 
available at http://www.ssa.gov/multilanguage/langlist1.htm. These 
signs could, for example, be modified for recipient use.
---------------------------------------------------------------------------

    [sbull] Stating in outreach documents that language services are 
available from the agency. Announcements could be in, for instance, 
brochures, booklets, and in outreach and recruitment information. These 
statements should be translated into the most common languages and 
could be ``tagged'' onto the front of common documents.
    [sbull] Working with community-based organizations and other 
stakeholders to inform LEP individuals of the recipients' services, 
including the availability of language assistance services.
    [sbull] Using a telephone voice mail menu. The menu could be in the 
most common languages encountered. It should provide information about 
available language assistance services and how to get them.
    [sbull] Including notices in local newspapers in languages other 
than English.
    [sbull] Providing notices on non-English-language radio and 
television stations about the available language assistance services 
and how to get them.
    [sbull] Presentations and/or notices at schools and religious 
organizations.

(5) Monitoring and Updating the LEP Plan

    Recipients should, where appropriate, have a process for 
determining, on an ongoing basis, whether new documents, programs, 
services, and activities need to be made accessible for LEP 
individuals, and they may want to provide notice of any changes in 
services to the LEP public and to employees. In addition, recipients 
should consider whether changes in demographics, types of services, or 
other needs require annual reevaluation of their LEP plan. Less 
frequent reevaluation may be more appropriate where demographics, 
services, and needs are more static. One good way to evaluate the LEP 
plan is to seek feedback from the community.
    In their reviews, recipients may want to consider assessing changes 
in:
    [sbull] Current LEP populations in service area or population 
affected or encountered.
    [sbull] Frequency of encounters with LEP language groups.
    [sbull] Nature and importance of activities to LEP persons.
    [sbull] Availability of resources, including technological advances 
and sources of additional resources, and the costs imposed.
    [sbull] Whether existing assistance is meeting the needs of LEP 
persons.
    [sbull] Whether staff knows and understands the LEP plan and how to 
implement it.
    [sbull] Whether identified sources for assistance are still 
available and viable.
    In addition to these five elements, effective plans set clear 
goals, management accountability, and opportunities for community input 
and planning throughout the process.

VIII. Voluntary Compliance Effort

    The goal for Title VI and Title VI regulatory enforcement is to 
achieve voluntary compliance. The requirement to provide meaningful 
access to LEP persons is enforced and implemented by DOC through the 
procedures identified in the Title VI regulations. These procedures 
include complaint investigations, compliance reviews, efforts to secure 
voluntary compliance, and technical assistance.
    The Title VI regulations provide that DOC will investigate whenever 
it

[[Page 14189]]

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

[FR Doc. 03-6835 Filed 3-21-03; 8:45 am]
BILLING CODE 3510-BP-P