[Federal Register Volume 68, Number 141 (Wednesday, July 23, 2003)]
[Notices]
[Pages 43519-43530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18658]


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GENERAL SERVICES ADMINISTRATION

[2003-N04]


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

AGENCIES: Office of Civil Rights, General Services Administration 
(GSA).

ACTION: Notice of interim final policy guidance document.

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SUMMARY: The General Services Administration (GSA) is publishing for 
public comment interim final policy guidance on Title VI's prohibition 
against national origin discrimination as it affects limited English 
proficient (LEP) persons. This guidance will become final after a 30-
day comment period unless GSA determines that the comments require 
further modification to the guidance. Once final, this policy guidance 
will supplant the policy guidance published on January 17, 2001.

DATES: Submit comments on or before August 22, 2003. GSA will review 
all comments and will determine what modifications, if any, to this 
policy guidance are necessary. Because this guidance must adhere to the 
Federal-wide compliance standards and framework detailed in the model 
U.S. Department of Justice's LEP guidance, GSA specifically solicits 
comments on the nature, scope, and appropriateness of the GSA-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 GSA.

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

FOR FURTHER INFORMATION CONTACT: The Regulatory Secretariat, Room 4035, 
GS Building, Washington, DC, 20405, (202) 208-7312, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Ms. Evelyn Britton at the Office of Civil Rights, 
General Services Administration, 1800 F Street, NW., Washington, DC 
20405. Telephone (202) 501-0767; 1-800-662-6376; TDD 1-888-267-7660.

[[Page 43520]]


SUPPLEMENTARY INFORMATION: The purpose of this policy guidance is to 
further clarify the responsibilities of recipients of Federal financial 
assistance from GSA 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 GSA implementing 
regulations. The policy guidance explains that to avoid discrimination 
against LEP persons on the ground of national origin, recipients must 
take reasonable steps to ensure that LEP persons have meaningful access 
to the programs, services, and information those recipients provide, 
free of charge.
    GSA's guidance for recipients was originally published on January 
17, 2001, and became effective immediately. (See 66 FR 4026.) That 
document, like the following guidance, was based on 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.'' (See 65 FR 50123, August 
16, 2000.)
    On February 20, 2002, the GSA re-published its recipient guidance 
for additional public comment. (See 67 FR 7692.) Comments representing 
24 different organizations were received, and the following guidance 
was developed after review and consideration of those comments. Prior 
comments on the original guidance need not be re-submitted.
    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.'' The Report 
made several recommendations designed to minimize confusion and ensure 
that funds dedicated to LEP services best advance meaningful access for 
LEP individuals.
    One significant recommendation was the adoption of uniform guidance 
across all Federal agencies, with flexibility to permit tailoring to 
each agency's specific recipients. In a memorandum to all Federal 
funding agencies dated July 8, 2002, Assistant Attorney General Ralph 
Boyd of DOJ's Civil Rights Division requested that agencies model their 
agency-specific guidance for recipients after sections I through VIII 
of DOJ's June 18, 2002, guidance. Therefore, this guidance is modeled 
after the language and format of DOJ's revised, final guidance, 
``Guidance to Federal Financial Assistance Recipients Regarding Title 
VI Prohibition Against National Origin Discrimination Affecting Limited 
English Proficient Persons'', published on June 18, 2002, 67 FR 41455.
    It has been determined that the guidance does not constitute a 
regulation subject to the rulemaking requirements of the Administrative 
Procedure Act, 5 U.S.C. 553.
    The text of the complete guidance document appears as an attachment 
to this notice.

    Dated: July 1, 2003.
Madeline Caliendo,
Associate Administrator, 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 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\ GSA 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. 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 same 
criteria GSA 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 ensure 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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    In a memorandum to all Federal funding agencies, dated July 8, 
2002, Assistant Attorney General Ralph Boyd of the U.S. Department of 
Justice's (DOJ) Civil Rights Division requested that agencies model 
their agency-specific guidance for recipients after Sections I-VIII of 
DOJ's June 18, 2002 guidance. Therefore, this guidance is modeled after 
the language and format of the DOJ's revised, final guidance, 
``Guidance to Federal Financial Assistance Recipients Regarding Title 
VI Prohibition Against National Origin Discrimination Affecting Limited 
English Proficient Persons'', published June 18, 2002, 67 FR 41455. The 
DOJ's role under Executive Order 13166 is unique. The Order charges DOJ 
with responsibility for providing LEP Guidance to other Federal 
agencies and for ensuring consistency among each agency-specific 
guidance. Consistency among Federal agencies is particularly important. 
Inconsistency or contradictory guidance could confuse

[[Page 43521]]

recipients of Federal funds and needlessly increase costs without 
rendering the meaningful access for LEP persons that this Guidance is 
designed to address. As with most government initiatives, this requires 
balancing several principles. While this Guidance discusses that 
balance in some detail, it is important to note the basic principles 
behind that balance. First, we must ensure that Federally-assisted 
programs aimed at the American public do not leave some behind simply 
because they face challenges communicating in English. This is of 
particular importance because, in many cases, LEP individuals 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, GSA plans to continue to provide assistance 
and guidance in this important area. 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 Executive Order 13166 that applies to Federally assisted 
programs and activities. We have taken the position that this is not 
the case, and will continue to do so. Accordingly, we will strive to 
ensure that Federally assisted programs and activities work in a way 
that is effective for all eligible beneficiaries, including those with 
limited English proficiency.

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. GSA 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.'' 41 CFR 101.6.204-2(a)(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 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, Executive Order 13166 was issued. ``Improving 
Access to Services for Persons with Limited English 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 Executive Order. ``Enforcement of Title VI 
of the Civil Rights Act of 1964 National Origin Discrimination Against 
Persons With Limited English Proficiency,'' 65 FR 50123 (August 16, 
2000) (``DOJ LEP Guidance'').
    Subsequently, Federal agencies raised questions regarding the 
requirements of the Executive Order, especially in light of the Supreme 
Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On 
October 26, 2001, Ralph F. Boyd, Jr., Assistant Attorney General for 
the Civil Rights Division, issued a memorandum for ``Heads of 
Departments and Agencies, General Counsels and Civil Rights 
Directors.'' This memorandum clarified and reaffirmed the DOJ LEP 
Guidance in light of Sandoval.\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 
Executive Order 13166 that applies to Federally assisted programs and 
activities--the Executive Order 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 regulation; * * * 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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    Pursuant to Executive Order 13166, GSA developed its own guidance 
document for recipients and initially issued it on January 17, 2001, 
``Limited English Proficiency Policy Guidance for recipients of Federal 
Financial Assistance,'' 66 FR 4026 (January 17, 2001) (``LEP Guidance 
for GSA Recipients''). Because GSA did not receive any public comment 
on its January 17, 2001 publication, the Agency republished on February 
20, 2002 its existing guidance document for additional public comment, 
``Limited English Proficiency Policy Guidance for Recipients of Federal 
Financial Assistance,'' 67 FR 7692 (February 20, 2002). GSA has since 
received

[[Page 43522]]

significant public comment. This guidance document is thus published 
pursuant to Executive Order 13166. Once final it will supplant the 
January 17, 2001 publication in light of the public comment received 
and Assistant Attorney General Boyd's October 26, 2001 clarifying 
memorandum and July 8, 2002 memorandum advising agencies to revise and 
re-publish their guidance, modeled after DOJ's June 18, 2002 final 
guidance.

III. Who Is Covered?

    GSA's implementation regulations provide, in part, at 41 CFR 101-
6.204-1:
    ``No person in the United States shall, on the grounds of race, 
color, or national origin, be excluded from participation in, be denied 
the benefits of, or be otherwise subjected to discrimination under any 
program to which this subpart applies.''
    Specific discriminatory actions prohibited are addressed at 41 CFR 
101-6.204-2: ``(a)(1) In connection with any program to which this 
subpart applies, a recipient may not, directly or through contractual 
or other arrangements, on the ground of race, color, or national 
origin:
    (i) Deny an individual any services/benefits, financial aid, or 
other benefit provided under the program;
    (ii) Provide any service, financial aid, or other benefit to any 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must 
meet in order to be provided any service, financial aid, or other 
benefit provided under the program;
    (vi) Deny an individual an opportunity to participate in the 
program through the provision of services or otherwise, or afford him 
an opportunity to do so which is different from that afforded others 
under the program * * *.''
    Federal financial assistance includes grants, training, use of 
equipment, donations of surplus property, and other assistance. 
Recipients of GSA assistance include, for example: \4\

    \4\ Pursuant to Executive Order 13166, the meaningful access 
requirement of the Title VI regulations and the four-factor analysis 
set forth in the GSA LEP Guidance are to additionally apply to the 
programs and activities of Federal agencies, including the GSA.
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--State and local agencies involved in such activities as: 
Conservation; economic development; education; park and recreation 
programs; public safety; public health programs for the elderly; and 
programs for the homeless; and
--Nonprofit organizations that perform educational and public health 
activities exempt from taxation under section 501 of the Internal 
Revenue such as: Medical institutions; hospitals; clinics; health 
centers; and drug abuse treatment centers; schools; universities; Head 
Start; childcare centers; educational radio and television stations; 
museums attended by the public; libraries; food banks; and other 
eligible organizations that provide support and services to the needy, 
shelter, or support services to the homeless or impoverished.

    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\

    \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: GSA donates a surplus backhoe and grader to a State 
park within the State Department of Parks and Recreation. All of the 
operations of the entire State Department of Parks and Recreation--
not just the particular park that received the property--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 limited English proficiency.

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 GSA recipients and should be considered 
when planning language services include, but are not limited to:

--Persons seeking assistance from a county's emergency services, such 
as 9-1-1 service, which include individuals reporting automobile 
accidents, fires, criminal, or other activity; and individuals who 
encounter the legal system;
--Parents or other family members seeking information about childcare 
and educational services; and
--Individuals seeking services from homeless shelters, domestic abuse 
shelters, food banks, clinics, hospitals, medical institutions, or 
health-care providers.

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 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. GSA recipients 
should apply the following four factors

[[Page 43523]]

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 nonprofit organization operates 
several shelters within a large county and one health clinic that 
serves a large LEP population in a rural part of the country, the 
appropriate service area for the clinic is most likely that portion of 
the county served by the health clinic, and not the entire population 
served by the nonprofit organization. The same would be true for the 
shelters. 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. When considering the number or proportion of LEP 
individuals in a service area, recipients should consider LEP parent(s) 
when their English-proficient or LEP minor children and dependents 
encounter the recipient's services, programs or activities.
    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 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 with a person in need of emergency health, 
fire or law enforcement services may differ, for example, from those to 
provide information about museum hours, location, exhibits and 
services. 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, such as 
educational programs, the provision of a hearing or complaint process, 
or the communication of Miranda rights, or other rights or warning 
information, 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 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

[[Page 43524]]

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 
medical clinic in a largely Hispanic neighborhood may need immediate 
oral interpreters available 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 tour of a city park and recreation 
area, 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 technical 
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/medical advisor, or other 
roles (particularly in court, administrative hearings, law enforcement 
or medical services contexts).
    Some recipients, such as courts, may have additional self-imposed 
requirements for interpreters. Where individual rights depend on 
precise, complete, and accurate interpretation or translations, 
particularly in the contexts of courtrooms and custodial or other 
police interrogations, the use of certified interpreters is strongly 
encouraged.\9\ Where such proceedings are lengthy, the interpreter will 
likely need breaks and team interpreting may be appropriate to ensure 
accuracy and to prevent errors caused by mental fatigue of 
interpreters.
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    \9\ For those languages in which no formal accreditation or 
certification currently exists, recipients should consider a formal 
process for establishing the credentials of the interpreter.
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    While quality and accuracy of language services is critical, the 
quality and accuracy of language services is nonetheless part of the 
appropriate mix of LEP services required. The quality and accuracy of 
language services in a hospital emergency room, 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 GSA recipients providing 
law enforcement, health, and safety services, and when important legal 
rights or the LEP individual's health or safety is at issue, a 
recipient 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

[[Page 43525]]

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, such as 911 operators, police officers, guards, medical/
emergency personnel, or program directors, with staff who are bilingual 
and competent to communicate directly with LEP persons in their 
language. If bilingual staff is 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 instances when 
the role of the employee may conflict with the role of an interpreter 
(for instance, a staff witness in a school disciplinary hearing may not 
be appropriate to serve as an interpreter at the same time, even if he 
or she were skilled at interpreting). Effective management strategies, 
including any appropriate adjustments in assignments and protocols for 
using bilingual staff, can ensure that bilingual staff is 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 or Other Volunteers as 
Interpreters. Although recipients should not plan to rely on an LEP 
person's family members, friends, or other informal interpreters to 
provide meaningful access to important programs and activities, where 
LEP persons so desire, they should be permitted to use, at their own 
expense, an interpreter of their own choosing (whether a professional 
interpreter, family member, friend, other volunteer) in place of or as 
a supplement to the free language services expressly offered by the 
recipient. LEP persons may feel more comfortable when a trusted family 
member, friend, or other individual 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), friends, 
other individuals 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 or sensitive information, such as medical history/
condition, previous sexual or violent assault history, family history, 
or financial information to a family member, friend, or member of the 
local community.\10\
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    \10\ Recipients should take these concerns into consideration 
when determining whether the LEP individual has made a knowing and 
voluntary choice for the use of a family, legal guardian, caretaker 
or other informal interpreter.
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    In addition, such informal interpreters may have a personal 
connection to the LEP person or an undisclosed conflict of interest, 
such as the desire to protect themselves or another individual. For 
these reasons, when oral language services are necessary, recipients 
should generally offer competent interpreter services free of cost to 
the LEP person. For GSA 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.
    An example of such a case is when police officers respond to a 
domestic violence call. In such a case, use of family members or 
neighbors to interpret for the alleged victim, perpetrator, or 
witnesses may raise

[[Page 43526]]

serious issues of competency, confidentiality, and conflict of interest 
and is thus inappropriate. While issues of competency, confidentiality, 
and conflict of interest in the use of family members (especially 
children), friends, other inmates or other detainees 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 
public building. There, the importance and nature of the activity may 
be relatively low and unlikely to implicate issues of confidentiality, 
conflict of interest, or the need for accuracy. In addition, the 
resources needed and costs of providing language services may be high. 
In such a setting, an LEP person's use of family, friends, or others 
may be appropriate.
    If the LEP person voluntarily chooses to provide his or her own 
interpreter, a recipient should consider whether a record of that 
choice and of the recipient's offer of assistance is appropriate. Where 
precise, complete, and accurate interpretations or translations of 
information and/or testimony are critical for medical, safety, law 
enforcement, 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:

--Consent and complaint forms;
--Intake forms with the potential for important consequences;
--Written notices of rights and responsibilities, denial, loss, or 
decreases in benefits or services, parole, and other hearings;
--Notices of disciplinary action;
--Notices advising LEP persons of free language assistance;
--Written tests that do not assess English language competency, but 
test competency for a particular license, job, or skill for which 
Knowing English is not required; and
--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 a fishing class taught at 
the county lake should not generally be considered vital, whereas 
applications for drug and alcohol counseling/treatment in a homeless 
shelter or in prison 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.

[[Page 43527]]

    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.

    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. The following actions will be considered strong 
evidence of compliance with the recipient's written-translation 
obligations:
    The GSA 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
    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, schools should, where appropriate, ensure that 
school rules have been explained to LEP students, at orientation, for 
instance, prior to taking disciplinary action against them.
    Competence of Translators. As with oral interpreters, translators 
of written documents should be competent. Many of the same 
considerations apply. However, the skill of translating is very 
different from the skill of interpreting, and a person who is a 
competent interpreter may or may not be competent to translate.
    Particularly where legal or other vital documents are being 
translated, competence can often be achieved by use of certified 
translators. Certification or accreditation may not always be possible 
or necessary.\11\ 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.''
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    \11\ 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.
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    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.\12\ 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.
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    \12\ For instance, there may be languages, which do not have an 
appropriate direct translation of some legal or technical 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.
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    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 
GSA recipients regarding certain law enforcement, health and safety 
service, or 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 GSA recipients, 
such as recipients serving very few LEP persons and recipients with 
very limited resources, may choose

[[Page 43528]]

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 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.lep.gov. When records are 
normally kept of past interactions with members of the public, the 
language of the LEP person can be included as part of the record. In 
addition to helping employees identify the language of LEP persons they 
encounter, this process will help in future applications of the first 
two factors of the four-factor analysis. In addition, posting notices 
in commonly encountered languages notifying LEP persons of language 
assistance will encourage them to self-identify.
    (2) Language Assistance Measures. An effective LEP plan would 
likely include information about the ways in which language assistance 
will be provided. For instance, recipients may want to include 
information on at least the following:

--Types of language services available.
--How staff can obtain those services.
--How to respond to LEP callers.
--How to respond to written communications from LEP persons.
--How to respond to LEP individuals who have in-person contact with 
recipient staff.
--How to ensure competency of interpreters and translation services.

    (3) Training Staff. Staff should know their obligations to provide 
meaningful access to information and services for LEP persons. An 
effective LEP plan would likely include training to ensure that:

--Staff knows about LEP policies and procedures.
--Staff having contact with the public (or those in a recipient's care) 
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 (or having contact with those in 
a recipient's care) 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 an agency 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:
    (a) Posting signs in intake areas and other entry points. When 
language assistance is needed to ensure meaningful access to 
information and services, it is important to provide notice in 
appropriate languages in intake areas or initial points of contact so 
that LEP persons can learn how to access those language services. This 
is particularly true in areas with high volumes of LEP persons seeking 
access to certain health, safety, or law enforcement services or 
activities run by GSA 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.\13\
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    \13\ The Social Security Administration has made such signs 
available at http:/www.ssa.gov/multilanguage/lanlist.htm. These 
signs could, for example, be modified for recipient use.
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    (b) 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.
    (c) Working with community-based organizations and other 
stakeholders to inform LEP individuals of the recipients' services, 
including the availability of language assistance services.
    (d) 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.
    (e) Including notices in local newspapers in languages other than 
English.
    (f) Providing notices on non-English-language radio and television 
stations about the available language assistance services and how to 
get them.
    (g) 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:

--Current LEP populations in service area or population affected or 
encountered.
--Frequency of encounters with LEP language groups.
--Nature and importance of activities to LEP persons.
--Availability of resources, including technological advances and 
sources of additional resources, and the costs imposed.

[[Page 43529]]

--Whether existing assistance is meeting the needs of LEP persons.
--Whether staff knows and understands the LEP plan and how to implement 
it.
--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 GSA 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 GSA will investigate whenever 
it receives a complaint, report, or other information that alleges or 
indicates possible noncompliance with Title VI or its regulations. If 
the investigation results in a finding of compliance, GSA will inform 
the recipient in writing of this determination, including the basis for 
the determination. GSA is committed to using voluntary compliance 
(informal resolution) to resolve findings of noncompliance. However, if 
a case is fully investigated and results in a finding of noncompliance, 
GSA 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, GSA must secure compliance through the termination 
of Federal assistance after the GSA recipient has been given an 
opportunity for an administrative hearing and/or by referring the 
matter to the DOJ to seek injunctive relief or pursue other enforcement 
proceedings. GSA engages in voluntary compliance efforts and provides 
technical assistance to recipients at all stages of an investigation. 
During these efforts, GSA 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, GSA'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, GSA 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, GSA 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, GSA 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.

IX. Application to Specific Types of Recipients

    GSA's recipients are in excess of 66,000 and represent State, 
county, city and local government agencies e.g., transportation 
departments, parks/recreation departments, education departments, labor 
departments, health departments, correctional facilities/police 
departments, emergency 9-1-1, local fire departments (to include 
volunteer fire departments; housing authorities; schools (public and 
private); hospitals, health clinics, medical centers; day care centers, 
to include Head Start; homeless shelters, domestic abuse shelters, food 
banks, and other eligible non-profits.
    The requirements of the Title VI regulations, as clarified by this 
guidance, supplement, but do not supplant, constitutional and other 
statutory or regulatory provisions that may require LEP services. Thus, 
a proper application of the four-factor analysis and compliance with 
the Title VI regulations does not replace constitutional or other 
statutory protections mandating information, warnings and notices in 
languages other than English, such as in the criminal justice context. 
Rather, this guidance clarifies the Title VI regulatory obligation to 
address, in appropriate circumstances and in a reasonable manner, the 
language assistance needs of LEP individuals beyond those required by 
the Constitution or statutes and regulations other than the Title VI 
regulations.
    The following examples are provided to assist recipients in 
determining their responsibilities with regard to LEP individuals:
    (1) A county has very few residents who are LEP. However, many 
Vietnamese-speaking LEP motorists go through a major freeway running 
through the county, which connects two areas with high populations of 
Vietnamese speaking LEP individuals. As a result, the Traffic Division 
of the county court processes a large number of LEP persons, but it has 
taken no steps to train staff or provide forms or other language access 
in that Division because of the small number of LEP individuals in the 
county. The Division should assess the number and proportion of LEP 
individuals processed by the Division and the frequency of such 
contact. With those numbers high, the Traffic Division may find that it 
needs to provide key forms or instructions in Vietnamese. It may also 
find, from talking with community groups, that many older Vietnamese 
LEP individuals do not read Vietnamese well, and that it should provide 
oral language services as well. The court may already have Vietnamese-
speaking staff competent in interpreting in a different section of the 
court; it may decide to hire a Vietnamese-speaking employee who is 
competent in the skill of interpreting; or it may decide that a 
telephonic interpretation service suffices.
    (2) A shelter for victims of domestic violence is operated by a 
recipient of GSA funds and located in an area where 15 percent of the 
women in the service area speak Spanish and are LEP. Seven percent of 
the women in the service area speak various Chinese dialects and are 
LEP. The shelter uses community volunteers to help translate vital 
outreach materials into Chinese (which is one written language despite 
many dialects) and Spanish. The shelter hotline has a menu providing 
key information, such as location, in English, Spanish, and two of the 
most common Chinese dialects. Calls for immediate assistance are 
handled by the bilingual staff. The shelter has one counselor and 
several volunteers fluent

[[Page 43530]]

in Spanish and English. Some volunteers are fluent in different Chinese 
dialects and in English. The shelter works with community groups to 
access interpreters in the several Chinese dialects that they 
encounter. Shelter staff trains the community volunteers in the 
sensitivities of domestic violence intake and counseling. Volunteers 
sign confidentiality agreements. The shelter is looking for a grant to 
increase its language capabilities despite its tiny budget. These 
actions constitute strong evidence of compliance.
    (3) A small childcare center has three LEP parents (two who speak 
Mandarin and one speaks Spanish) whose English-speaking children attend 
its childcare center on a regular basis. The center has a staff of six, 
and has limited financial resources to afford to hire bilingual staff, 
contract with a professional interpreter service, or translate written 
documents. To accommodate the language needs of their LEP parents, the 
Center made arrangements with a Chinese and a Hispanic community 
organization for trained and competent volunteer interpreters in the 
appropriate language, and with a telephone interpreter language line, 
to interpret during parent meetings and to orally translate written 
documents. There have been no client complaints of inordinate delays or 
other service related problems with respect to LEP clients. The 
assistance that the childcare center is providing will probably be 
considered appropriate, given the center's resources, the size of 
staff, and the size of the LEP population. Thus, OCR would consider 
this strong evidence of compliance.
    (4) A county social service program that administers the State's 
welfare and health programs has a large budget. Their service area 
encompasses an eligible service population of 500,000. Thirty-five 
hundred individuals in the serviced population are LEP and speak a 
Chinese dialect; 4,000 individuals in the serviced population are LEP 
and speak Spanish; 2000 individuals in the serviced population are LEP 
and speak Vietnamese; and 400 individuals are LEP and speak Vietnamese. 
The county has translated vital documents, i.e., applications and 
program brochures, into Chinese, Spanish, and Vietnamese. Therefore, 
with regard to translation of vital documents, OCR would consider this 
strong evidence of compliance, consistent with the safe harbor 
provision in GSA's guidance. Additionally, the county should adequately 
address and provide needed interpretation services to their LEP clients 
(i.e., hiring bilingual staff or contracting with a language service 
provider).
    Permanent Versus Seasonal Populations. In many communities, 
resident populations change over time or season. For example, in some 
resort communities, populations swell during peak vacation periods, 
many times exceeding the number of permanent residents of the 
jurisdiction. In other communities, primarily agricultural areas, 
transient populations of workers may require increased services during 
the relevant harvest season. This dynamic demographic ebb and flow can 
also dramatically change the size and nature of the LEP community 
likely to come into contact with the recipient. Thus, recipients should 
not limit their analysis to numbers and percentages of permanent 
residents. In assessing factor one--the number or proportion of LEP 
individuals--emergency service providers should consider any 
significant but temporary changes in a jurisdiction's demographics.

[FR Doc. 03-18658 Filed 7-22-03; 8:45 am]
BILLING CODE 6820-34-P