[Federal Register Volume 68, Number 230 (Monday, December 1, 2003)]
[Notices]
[Pages 67220-67229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29790]


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NUCLEAR REGULATORY COMMISSION


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

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of proposed guidance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is publishing for 
public comment the proposed policy guidance on Title VI's prohibition 
against national origin discrimination as it affects limited English 
proficient persons.

DATES: Comments must be submitted on or before December 31, 2003.

ADDRESSES: Interested persons should submit written comments to Michael 
T. Lesar, Chief, Rules and Directives Branch, Office of Administration, 
U.S. Nuclear Regulatory Commission, Mail Stop: T-6D59, Washington, DC 
20555-0001. Comments may also be submitted by facsimile to 301-415-
5144, or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Marva C. Gary, Civil Rights Program 
Manager, at 301-415-7382, TDD 301-415-5244, or by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d, et seq. and its implementing regulations provide that no 
person shall be subjected to discrimination on the basis of race, 
color, or national origin under any program or activity that receives 
Federal financial assistance. In Executive Order 13166, reprinted at 64 
FR 50119 (August 16, 2000), federal grant agencies are directed to 
issue guidance to their respective recipients of federal financial 
assistance on ensuring meaningful access to their programs and 
activities by persons with limited English proficiency (LEP). Executive 
Order 13166 further requires that agency guidance be consistent with 
the compliance standards set out in Department of Justice Policy 
Guidance issued contemporaneous with the Executive Order and published 
at 65 FR 50123 (August 16, 2000).
    On October 26, 2001 and January 11, 2002, the Assistant Attorney 
General for Civil Rights issued to Federal departments and agencies 
guidance memoranda, which reaffirmed the Department of Justice's 
commitment to ensuring that federally assisted programs and activities 
fulfill their LEP responsibilities, which clarified and answered 
certain questions raised regarding the August 16th publication. 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 the OMB recommendation, the 
Department of Justice (DOJ) published LEP Guidance for DOJ recipients 
which was drafted and organized to also function as a model for similar 
guidance by other Federal grant agencies. The proposed NRC guidance is 
consistent with the model LEP Guidance document published by DOJ.
    It has been determined that this guidance does not constitute a 
regulation subject to the rulemaking requirements of the Administrative 
Procedure Act, 5 U.S.C. 553. It has also been determined that this 
guidance document is not subject to the requirements of Executive Order 
12866.
    The text of the complete proposed guidance document appears below.

    For the Nuclear Regulatory Commission.
William F. Kane,
Acting Executive Director for Operations.

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

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 
percent of all Spanish-speakers, 29.9 percent of all Chinese-speakers, 
and 28.2 percent 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.
    In certain circumstances, failure to ensure that LEP persons can 
effectively participate in or benefit from federally assisted programs 
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

[[Page 67221]]

persons.\1\ These are the same criteria the United States Nuclear 
Regulatory Commission (NRC) will use in evaluating whether recipients 
are in compliance with Title VI.
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    \1\ The policy guidance is not a regulation but rather a guide. 
Title VI and its implementing regulations require that recipients 
take reasonable steps to ensure meaningful access by LEP persons. 
This guidance provides an analytical framework that recipients may 
use to determine how best to comply with statutory and regulatory 
obligations to provide meaningful access to the benefits, services, 
information, and other important portions of their programs and 
activities for individuals who are limited English proficient.
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    Before discussing these criteria in greater detail, it is important 
to note two basic underlying principles. 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. Second, we must achieve this goal while finding constructive 
methods to reduce the costs of LEP requirements on recipients of 
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. To that end, the NRC in conjunction 
with the Department of Justice (DOJ), plans to continue to provide 
assistance and guidance in this important area. In addition, the NRC 
plans to work with its recipients and LEP persons to identify and share 
model plans, examples of best practices, and cost-saving approaches.
    Moreover, the NRC 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. 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.
    In cases where a recipient of Federal financial assistance from the 
NRC also receives assistance from one or more other Federal agencies, 
there is no obligation to conduct and document separate data, when the 
data would be identical and for the same purpose. The same analyses and 
language assistance plans can be used. The NRC, in discharging its 
compliance and enforcement obligations under Title VI, will look to 
analyses performed and plans developed in response to similar detailed 
LEP guidance issued by other Federal agencies. Accordingly, as an 
adjunct to this guidance, recipients may, where appropriate, also rely 
on guidance issued by other agencies in discharging their Title VI LEP 
obligations.
    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. The NRC and DOJ have taken the position that 
this is not the case, and will continue to do so. Accordingly, NRC will 
strive to ensure that federally assisted programs and activities work 
in a way that is effective for all eligible beneficiaries, including 
those with 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.
    In pertinent part, the NRC's regulations promulgated pursuant to 
section 602 forbid recipients from ``utiliz[ing] criteria for methods 
of administration which have the effect of subjecting individuals to 
discrimination because of their race, color, or national origin, or 
have the effect of defeating or substantially impairing accomplishment 
of the objectives of the program [with respect to] individuals of a 
particular race, color, or national origin.'' See 10 CFR part 4 subpart 
A section 4.12(b) [29 FR 19277, December 31, 1964].
    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 language identical to that of 45 CFR 
part 1110, 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, ``Improving Access to 
Services for Persons with Limited English Proficiency,'' (65 FR 50121; 
August 16, 2000), was issued. 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 forbidden funding 
recipients from ``[restricting] and 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.\2\ The Assistance

[[Page 67222]]

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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    \2\ 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, 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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    This guidance is thus published pursuant to Executive Order 13166.

III. Who Is Covered?

    The NRC regulations at 10 CFR part 4, subpart A require all 
recipients of Federal financial assistance from the NRC to provide 
meaningful access to LEP persons.\3\ Federal financial assistance 
includes grants, training, use of equipment, donations of surplus 
property, and other assistance. Recipients of assistance from the NRC 
typically include, but are not limited to:
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    \3\ 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 
Federally conducted programs and activities of Federal agencies, 
including the NRC.
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    [sbull] Educational systems, universities, colleges, and research 
institutions;
    [sbull] Day care center providers;
    [sbull] Food service providers;
    [sbull] Emergency response entities;
    [sbull] State Health and Radiological Offices;
    [sbull] Fitness center providers;
    [sbull] Profit and non-profit organizations and institutions;
    [sbull] Healthcare center providers; and
    [sbull] Professional societies.
    Subrecipients are also 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 Federal assistance.\4\
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    \4\ 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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    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 the NRC's recipients and should be 
considered when planning language services include, but are not limited 
to:
    [sbull] Persons reasonably likely to be subject to emergency 
evacuation measures;
    [sbull] Residents located in reasonable proximity to NRC-licensed 
facilities;
    [sbull] Persons served by or subject to state health and 
radiological offices; and
    [sbull] Students and faculty at colleges and universities with 
associated research centers.

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 state and local governments 
or small nonprofit entities.
    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 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. The NRC's 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 of 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, by'' a recipient's's 
program or activity are those who are served or encountered in the 
eligible population. This population will be program-specific, and 
includes persons who are in the geographic are that has been approved 
by a Federal grant agency as the recipient's's service area. However, 
where, for instance, a research facility or university operates a day 
care center limited to children of recipient personnel, and that 
extended groups include a significant LEP population, the appropriate 
service area is most likely the pool of eligibles from which the center 
draws its potential participants. When considering the number or 
proportion of LEP individuals in a service area, recipients providing 
services to minor LEP individuals should also include the individual's 
LEP parent(s) or primary caretaker(s) among those likely to be 
encountered.
    Recipients should first examine their prior experiences with LEP 
encounters and determine the breadth the 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 under-services 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.\5\

[[Page 67223]]

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 where language services are provided.
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    \5\ 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 and LEP person on a one-time 
basis will be very different from 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 intestified 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. 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 using 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. For example, 
due to its direct impact on the public, the obligations of a federally 
assisted state health and radiological office enforcing health and 
safety standards are generally far greater than those of a federally 
assisted science or engineering program. 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 participation in an educational program or 
compliance with emergency procedures, can serve evidence of the 
program's importance. While all situations must be analyzed on a case-
by-case basis, the following general observations may be helpful to the 
NRC's recipients considering the implications of applying this factor 
of the four-factor test to their respective programs:
    [sbull] An assisted local environmental protection office providing 
information on radiological hazards and charged with responsibility to 
receive and investigate environmental complaints that serves in a city 
with a large Hispanic population including a significant number of LEP 
members should consider translating at least come of its informational 
pamphlets and its complaint form into Spanish (or implementing a 
procedure through which Spanish-speaking LEP persons could be served by 
Spanish-speaking officers). This same office could also consider 
Spanish summaries of its vital but technical or complex public 
documents as a possible alternative to full text translations.
    [sbull] Assisted emergency response entities serving a significant 
LEP community which are part of an emergency evacuation plan 
coordinated by an NRC Licensed Facility should consider either for 
themselves or as part of a coordinated plan on the part of related 
entities:
    (1) Employing of bilingual State Liaison Officers, or staff members 
capable of providing timely and vital information in the language and 
dialogue of the LEP population located in the vicinity of the NRC 
licensed facility;
    (2) Ensuring that the LEP population has access to emergency 
evacuation information, procedures for filing complaints of 
contamination, hazards, safety concerns, or denial of access;
    (3) Posting and disseminating information in the language of the 
LEP population, in high stress situations; and
    (4) Identifying individuals or community groups who might serve as 
bilingual volunteers with a small LEP population.
    As part of a language assistance emergency response plan, such 
recipients could, for example, consider reliance upon a telephonic 
interpretation service that is fast enough and reliable enough to 
attend to the emergency situation, or include some other accommodation 
short of hiring bilingual staff.
    With respect to the importance of a program, activity, or service 
provided by one of the Agency's recipients, the obligation to provide 
interpretation or translation services will most likely be greatest in 
educational/training situations or in connection with the provisions of 
safety, and/or emergency evacuation services. Entities that receive 
Federal financial assistance from another agency such as the Department 
of Education, may rely on the more particularized LEP guidance of that 
other agency to ensure compliance with the obligation to provide 
meaningful access in those respective contexts.
(4) The Resources Available to the Recipient and Costs
    A recipient's level of resources and the cost 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

[[Page 67224]]

interpreter and translator services to achieve economies of scale, or 
the formalized use of qualified community volunteers, for example, may 
help reduce costs.\6\ 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. These 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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    \6\ 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 onsite interpreters for critical services provided to a high 
volume of LEP persons to access through commercially-available 
telephonic interpretation services. A written translation 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. Regardless of the type 
of language service provided, quality and accuracy of those service can 
be critical 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 Service

    Recipients have two main ways to provide language services: oral 
and written language services. Quality and accuracy of the language 
service is critical 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. Also, 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:
    [sbull] Demonstrate proficiency in an 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);
    [sbull] 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; \7\ 
and, if applicable, 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; and
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    \7\ Many languages have ``regionalism,'' 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 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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    [sbull] Understand and adhere to their role as interpreters without 
deviating into any other role such as counselor, or advisor.
    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.\8\ 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. The NRC recognizes, however, that such 
situations are infrequent in the types of programs and activities it 
typically funds.
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    \8\ For those languages in which no formal accreditation or 
certification currently exists, courts and law enforcement agencies 
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 compulsory educational classes, for example, must 
be quite while the quality and accuracy of language services in 
translation of general public announcements, 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. 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 and sub-recipients can, for example, 
fill public contact positions, such as program directors, with staff 
who are bilingual and competent to communicate directly with LEP 
persons in their language and at the appropriate level of competency. 
Similarly, a State Liaison Officer or a State Tribal Program serving an 
area with a significant LEP population could seek to match individuals 
with limited English skills with language-appropriate bilingual 
mentors. If bilingual staff are also used to interpret between English

[[Page 67225]]

speakers and LEP persons, or to orally interpret written documents from 
English into another language, they should be competent in the skill of 
interpreting. Being bilingual does not necessarily mean that a person 
has the ability to interpret. In addition, there may be times when the 
role of the bilingual employee may conflict with the role of an 
interpreter (for instance, a bilingual member of a formal review panel 
adjudicating allegations of program or fiscal noncompliance would 
probably not be able to perform effectively the role of interpreter and 
adjudicator at the same time, even if the bilingual employee were a 
qualified interpreter). Effective management strategies, including any 
appropriate adjustments in assignments and protocols for using 
bilingual staff, can ensure that bilingual staff are fully and 
appropriately used. 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 onsite 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 not 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 in public-contact situations. They may be particularly 
appropriate where the mode of communicating with a LEP 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 these services, the interpreters are competent to interpret 
any technical 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, when discussing documents, it 
is important to give telephonic interpreters adequate opportunity to 
review the document prior to the discussion, and to address any 
logistical problems.
    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 to 
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 skilled 
in interpreting between English speakers and LEP persons, or when sight 
translating documents, one should be competent in the skill of 
interpreting, and knowledgeable about applicable confidentiality and 
partiality rules, if any. 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 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 of these 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 interest in accurate interpretation. In many circumstances, family 
member (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 confidential information to 
a family member, friend, or member of the local community. In addition, 
these 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.
    While issues of competency, confidentiality, and conflict on 
interest in the use of family members 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 might be to use, as one part of a public 
information program, language-capable community groups or volunteers to 
help provide oral notice or disseminate written postings about 
important public meetings. There, the nature of the activity may be 
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, 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

[[Page 67226]]

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 (Transition)
    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.
    These written materials could include, for example:
    [sbull] Notices advising LEP persons of free language assistance;
    [sbull] 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; or
    [sbull] Applications to participate in a recipient's program or 
activity or to receive recipient benefits, grants, or services.
    Whether 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. 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 using 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 language over time. As a result, the extent of the 
recipient's obligation to provide written translations of documents 
should be determined by the recipient on a case-by-case basis, looking 
at the totality of the circumstances in light of the four-factor 
analysis. Because translation is a one-time expense, consideration 
should be given to whether the up-front 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), 
under Safe Harbor Guides, 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), under Safe Harbor Guides, 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 is 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 these circumstances.
    Safe Harbor Guides. The following actions will be considered strong 
evidence of compliance with the recipient's written-translation 
obligations:
    (a) The 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

[[Page 67227]]

    (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 effect the requirement to provide 
meaningful access to LEP individuals through competent oral 
interpreters where oral language services are needed and are 
reasonable.
    The NRC acknowledges that it provides assistance to a wide range of 
programs and activities serving different geographic areas with varying 
populations. Moreover, as noted above, the obligation to consider 
translations applies only to a recipient's vital documents having a 
significant impact on access rather than all types of documents used or 
generated by a recipient in the course of its activities. For these 
reasons, a strict reliance on the numbers of percentages set out in the 
safe harbor standards may not be appropriate for all of the NRC's 
recipients and for all their respective programs or activities. While 
the safe harbor standards outlined above offer a common guide, the 
decision as to what documents should be translated should ultimately be 
governed by the underlying obligation under Title VI to provide 
meaningful access by LEP persons by ensuring that the lack of 
appropriate translations of vital documents does not adversely impact 
upon an otherwise eligible LEP persons ability to access its programs 
or activities.
    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 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, 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\ There may be languages which do not have an appropriate 
direct translation of some 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, it 
is nonetheless part of the appropriate mix of LEP services required. 
For instance, documents that are simple and have no significant 
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. 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, these written 
plans would 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 their language 
assistance services in a written LEP plan, and show how the staff and 
LEP persons can access those services. Despite these benefits, certain 
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, he/she 
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''),

[[Page 67228]]

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. 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, positing 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; and
    [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; and
    [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 an organization 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. 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\
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    \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 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. 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 demographic 
services, and needs are more static. One 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; and
    [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 regulatory enforcement is to achieve 
voluntary compliance. The requirement to provide meaningful access to 
LEP persons is enforced and implemented by the NRC through the 
procedures identified in the Title VI regulations. These procedures 
include compliant investigations, compliance reviews, efforts to secure 
voluntary compliance, and technical assistance.
    The Title VI regulations provide that the NRC will investigate 
whenever it receives a compliant, 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, 
the NRC will inform the recipient in writing of this determination, 
including the basis for the determination. The NRC uses voluntary 
mediation to resolve most complaints. However, if a case is fully 
investigated and results in a finding of noncompliance, the NRC 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, the NRC must secure

[[Page 67229]]

compliance through the termination of Federal assistance after the 
recipient has been given an opportunity for an administrative hearing 
and/or by referring the matter to a DOJ litigation section to seek 
injunctive relief or pursue other enforcement proceedings. The NRC 
engages in voluntary compliance efforts and provides technical 
assistance to recipients at all stages of an investigation. During 
these efforts, the NRC proposes reasonable timetables for achieving 
compliance and consult with and assist recipients in exploring cost-
effective ways of coming into compliance. In determining a recipient's 
compliance with the Title VI regulations, the NRC'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, the NRC 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, the NRC 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 reasonable require a series of implementing actions 
over a period of time. However, in developing any phased implementation 
schedule, 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.
    In determining a recipient entity's compliance with Title VI, the 
NRC's primary concern is to ensure that the entity's policies and 
procedures overcome barriers resulting from language differences that 
would deny LEP persons a meaningful opportunity to participate in and 
access programs, services, and benefits. A recipient entity's 
appropriate use of the methods and options discussed in this policy 
guidance is viewed by the NRC as evidence of that entity's willingness 
to comply voluntarily with its Title VI obligations.

[FR Doc. 03-29790 Filed 11-28-03; 8:45 am]
BILLING CODE 7590-01-M