[Federal Register Volume 68, Number 241 (Tuesday, December 16, 2003)]
[Notices]
[Pages 70039-70048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30931]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

[Notice: 154]


Title VI of the Civil Rights Act of 1964, as Amended: Policy 
Guidance on the Prohibition Against National Origin Discrimination as 
It Affects Persons With Limited English Proficiency

AGENCY: National Aeronautics and Space Administration (NASA).

ACTION: Policy guidance document.

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SUMMARY: NASA adopts policy guidance to federal financial assistance 
recipients regarding Title VI prohibition against national origin 
discrimination affecting Limited English Proficient (LEP) persons. The 
NASA recipient LEP policy guidance is issued pursuant to Executive 
Order 13166 and supplants existing policy guidance on the same subject 
originally published at 66 FR 15141 (March 15, 2001).

DATES: Effective immediately.

FOR FURTHER INFORMATION CONTACT: Mr. Miguel A. Torres, 202-358-0937, or 
TDD: 202-358-3748. Arrangements to receive the policy in an alternative 
format may be made by contacting Mr. Miguel A. Torres.

SUPPLEMENTARY INFORMATION: The purpose of this policy guidance is to 
further clarify the responsibilities of institutions and/or entities 
that receive financial assistance from NASA, and assist them in 
fulfilling their responsibilities to LEP persons pursuant to Title VI 
of the Civil Rights Act of 1964. The policy guidance emphasizes that in 
order to avoid discrimination against LEP persons on grounds of 
national origin, recipients of NASA financial assistance must take 
adequate steps to ensure that people who are not proficient in English 
can effectively participate in and benefit from the recipient's 
programs and activities. Therefore, LEP persons should expect to 
receive the language assistance necessary to afford them meaningful 
access to the recipients' programs and activities, free of charge.
    This document was originally published as policy guidance for 
public comment on March 15, 2001. See 66 FR 15141. The document was 
based on the policy guidance issued by the Department of Justice 
entitled ``Enforcement of Title VI of the Civil Rights Act of 1964--
National Origin Discrimination Against Persons with Limited English 
Proficiency.'' 65 FR 50213 (August 16, 2000). No public comments were 
received.
    On October 26, 2001, and January 11, 2002, the Assistant Attorney 
General for

[[Page 70040]]

Civil Rights issued to federal departments and agencies guidance 
memoranda, which reaffirmed the Department of Justice's commitment to 
ensuring that federally assisted programs and activities fulfill their 
LEP responsibilities and which clarified and answered certain questions 
raised regarding the August 16th publication. In addition, on March 14, 
2002, the Office of Management and Budget (OMB) issued a Report to 
Congress titled ``Assessment of the Total Benefits and Costs of 
Implementing Executive Order No. 13166: Improving Access to Services 
for Persons with Limited English Proficiency.'' Among other things, the 
Report recommended the adoption of uniform guidance across all federal 
agencies, with flexibility to permit tailoring to each agency's 
specific recipients. Consistent with this OMB recommendation, DOJ 
published LEP Guidance for DOJ recipients that was drafted and 
organized to also function as a model for similar guidance documents by 
other Federal grant agencies. See 67 FR 41455 (June 18, 2002). NASA 
reviewed its March 15, 2001, publication in light of the aforementioned 
clarifications, to determine whether there was a need to clarify or 
modify the March 15th policy guidance.
    In furtherance of those memoranda, NASA republished revised policy 
guidance for additional public comment on August 15, 2003 (68 FR 
48947), for the purpose of obtaining additional public comment. Because 
the guidance must adhere to the federal-wide compliance standards and 
framework detailed in the model DOJ LEP Guidance, NASA specifically 
solicited comments on the nature, scope and appropriateness of the 
NASA-specific examples set out in the revised guidance explaining and/
or highlighting how those consistent federal-wide compliance standards 
are applicable to recipients of federal financial assistance through 
NASA. No public comments were received.
    It has been determined that this guidance, which supplants existing 
guidance on the same subject previously published at 66 FR 15141 (March 
15, 2001), does not constitute a regulation subject to the rulemaking 
requirements of the Administrative Procedure Act, 5 U.S.C. 553. It also 
has been determined that this guidance is not subject to Executive 
Order 12866.

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 
Language Assistance Plan (LAP). 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\ NASA 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 DOJ will use in evaluating whether recipients are in 
compliance with Title VI and Title VI regulations.
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    \2\ The policy guidance is not a regulation but rather a guide. 
Title VI and its implementing regulations require that recipients 
take responsible steps to ensure meaningful access by LEP persons. 
This guidance provides an analytical framework that recipients may 
use to determine how best to comply with statutory and regulatory 
obligations to provide meaningful access to the benefits, services, 
information, and other important portions of their programs and 
activities for individuals who are limited English proficient.
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    There are many productive steps that NASA 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, NASA plans to continue to provide assistance 
and guidance in this important area. In addition, NASA plans to work 
with its recipients, and LEP persons to identify and share model plans, 
examples of best practices, and cost-saving approaches. Moreover, NASA 
intends to explore how language assistance measures, resources and 
cost-containment approaches developed with respect to its own federally 
conducted programs and activities can be effectively shared or 
otherwise made available to recipients, particularly small businesses, 
and small non-profits. An interagency working group on LEP has 
developed a Web site, http://www.lep.gov, to assist in disseminating 
this information to recipients, federal agencies, and the communities 
being served.
    Many commentators, responding to the proposed DOJ LEP Policy 
Guidance, 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 Department of Justice has taken the position that 
this is not the case, and NASA agrees with that position. Accordingly, 
NASA will strive to ensure that federally assisted programs and 
activities work in a way

[[Page 70041]]

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.
    NASA regulations promulgated pursuant to Section 602 forbid 
recipients from utilizing 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 to individuals of a particular race, color, or national 
origin. 14 CFR 1250.103-2.
    The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974), 
interpreted regulations promulgated by the former Department of Health, 
Education, and Welfare, including a regulation similar to that of NASA, 
45 CFR 80.3(b)(2), to hold that Title VI prohibits conduct that has a 
disproportionate effect on LEP persons because such conduct constitutes 
national-origin discrimination. In Lau, a San Francisco school district 
that had a significant number of non-English speaking students of 
Chinese origin was required to take reasonable steps to provide them 
with a meaningful opportunity to participate in federally funded 
educational programs.
    On August 11, 2000, 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 restricting 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. Title VI regulations 
also prohibit utilizing 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). The DOJ role under Executive Order 13166 (the 
Executive Order) is unique. The Executive Order charges DOJ with 
responsibility for providing LEP Guidance to other Federal agencies and 
for ensuring consistency among each agency-specific guidance. 
Consistency among Departments of the Federal Government is particularly 
important. Inconsistency or contradictory guidance could confuse 
recipients of federal funds and needlessly increase costs without 
rendering the meaningful access for LEP persons that this guidance is 
designed to address.
    Subsequently, Federal agencies raised questions regarding the 
requirements of the 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 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 commentator's 
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, DOJ developed its own guidance 
document for recipients and initially issued it on January 16, 2001. 
Guidance to Federal Financial Assistance Recipients Regarding Title VI 
Prohibition Against National Origin Discrimination Affecting Limited 
English Proficient Persons, 66 FR 3834 (January 16, 2001) (LEP Guidance 
for DOJ Recipients). NASA published in the Federal Register (66 FR 
15141) its own LEP Guidance. NASA did not receive comments from the 
public.
    This guidance document is thus published pursuant to Executive 
Order 13166 and supplants the March 15, 2001, publication.

III. Who Is Covered?

    NASA regulations, 14 CFR Part 1250, require all recipients of 
federal financial assistance from NASA to provide meaningful access to 
LEP persons.\4\ Federal financial assistance includes grants, training, 
use of equipment, donations of surplus property, and other assistance. 
Recipients of NASA assistance include, for example:
    [sbull] State or local agencies
    [sbull] Non-profit institutions or organizations
    [sbull] Educational Institutions
    [sbull] Any public or private individual to whom federal assistance 
is extended, directly or through another recipient, including any 
successor, assignee, or transferee thereof.
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    \4\ Pursuant to Executive Order 13166, the meaningful access 
requirement of Title VI regulations and the four-factor analysis set 
forth in the DOJ LEP Guidance are to additionally apply to the 
programs and activities of federal agencies, including NASA.
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    Sub-recipients likewise are covered when federal funds are passed 
through from one recipient to a sub-recipient.
    Coverage extends to a recipient's entire program or activity, i.e., 
to all parts of a recipient's operations. This is true even if only one 
part of the recipient receives the federal assistance.\5\
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    \5\ However, if a federal agency were to decide to terminate 
federal funds based on noncompliance with Title VI or its 
regulations, only funds directed to the particular program or 
activity that is out of compliance would be terminated. 42 U.S.C. 
2000d-1.

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[[Page 70042]]

    Example: NASA provides assistance to a state department of 
education for curriculum enhancement in science and mathematics in its 
public schools. All of the operations of the entire state department of 
education--not just the schools--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 NASA recipients and should be considered 
when planning language services include, but are not limited to:
    [sbull] Students enrolled in NASA-funded science, mathematics, and 
technology enrichment activities.
    [sbull] Parents or family members of the above.
    [sbull] Individuals participating in NASA program orientations and 
visiting exhibits at NASA Visitor centers where the programs and 
activities are funded and conducted by a NASA financial assistance 
recipient.

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. NASA 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.
    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 school district receiving NASA 
financial assistance serves a large LEP population, the appropriate 
service area is most likely the school district, and not the entire 
state. 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, 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 are 
potential or actual participants or beneficiaries of NASA-funded 
programs and 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, 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 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 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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(1) 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.

[[Page 70043]]

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.

(2) 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 information on short and long-term weather 
patterns to rural communities via satellite pictures and computer 
modeling differ, for example, from those to provide curriculum 
enhancement in science and mathematics to middle school students. 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 NASA recipients to 
make an activity compulsory, such as instruction on safety and security 
requirements before touring a NASA facility, can serve as strong 
evidence of the program's importance.

(3) 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 
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 my find that 
entering into a bulk telephonic interpretation service 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 visit 
by the NASA Administrator to a largely Hispanic neighborhood may need 
immediate oral interpreters available. (Of course, many community 
organizations may have already made such arrangements.) In contrast, 
there may be circumstances where the importance and nature of the 
activity and number or proportion and frequency of contact with LEP 
persons may be low and the costs and resources needed to provide 
language services may be high, such as in the case of a voluntary 
general public tour of a NASA program site 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

[[Page 70044]]

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 that do not 
have an appropriate direct interpretation of some technical terms, 
the interpreter should be so aware of the issue. The interpreter and 
recipient can then work to develop a consistent and appropriate set 
of descriptions of these terms in that language so that they can be 
used again, when appropriate.
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    Understand and adhere to their role as interpreters without 
deviating into a role as counselor, legal advisor, or other roles.
    Some recipients, such as technical or scientific recipients, may 
have additional self-imposed requirements for interpreters. Where the 
technical integrity of the information depends on precise, complete, 
and accurate interpretation or translations, particularly in the 
contexts of communicating technology innovations to the public, the use 
of certified interpreters is strongly encouraged.\9\ Where such 
activities are lengthy, the interpreter will likely need breaks and 
team interpreting may be appropriate.
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    \9\ For those languages for which no formal accreditation or 
certification currently exists, NASA recipients should consider a 
formal process for establishing the credentials of the interpreter.
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    The quality and accuracy of language services is part of the 
appropriate mix of LEP services required. The quality and accuracy of 
language services during a safety and security briefing, for example, 
must be extraordinarily high, while the quality and accuracy of 
language services in responding to telephonic inquiries for general 
information 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 NASA recipients which 
involve the provision of enrollment information to parents of potential 
student participants in NASA-funded enrichment activities in science, 
mathematics, and/or technology, a recipient would likely not be 
providing meaningful access if it had one bilingual member of the staff 
available one day a week to provide the service. Such conduct would 
likely result in delays for LEP persons that would be significantly 
greater than those for English proficient persons. Conversely, where 
access to or exercise of a service, benefit, or right is not 
effectively precluded by a reasonable delay, language assistance can 
likely be delayed for a reasonable period.
    Hiring Bilingual Staff. When particular languages are encountered 
often, hiring bilingual staff offers one of the best, and often most 
economical, options. Recipients can, for example, fill public contact 
positions, such as public information specialists, guards, or program 
directors, with staff that 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 times when the role of the bilingual employee 
may conflict with the role of an interpreter (for instance, a bilingual 
security guard would probably not be able to perform effectively the 
role of a planetary science interpreter and security guard at the same 
time, even if the security guard were a qualified interpreter). 
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 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

[[Page 70045]]

programs and activities, where LEP persons so desire, they should be 
permitted to use, at their own expense, an interpreter of their own 
choosing (whether a professional interpreter, family member, or friend) 
in place of or as a supplement to the free language services expressly 
offered by the recipient. LEP persons may feel more comfortable when a 
trusted family member, or friend, acts as an interpreter. In addition, 
in exigent circumstances that are not reasonably foreseeable, temporary 
use of interpreters not provided by the recipient may be necessary. 
However, with proper planning and implementation, recipients should be 
able to avoid such situations.
    Recipients, however, should take special care to ensure that 
family, legal guardians, caretakers, and other informal interpreters 
are appropriate in light of the circumstances and subject matter of the 
program, service or activity, including protection of the recipient's 
own administrative or enforcement interest in accurate interpretation. 
In many circumstances, family members (especially children), or 
friends, persons 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 medical, law enforcement (e.g., sexual or violent 
assaults), family, or financial information to a family member, friend, 
or member of the local community.\10\ 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 person in certain matters. For these reasons, 
when oral language services are necessary, recipients should generally 
offer competent interpreter services free of cost to the LEP person. 
For NASA recipient programs and activities, this is particularly true 
in situations in which health, safety, or security is at stake, or when 
credibility and accuracy are important to protect an individual's 
rights and access to important services.
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    \10\ For example, special circumstances may raise additional 
serious concerns regarding the voluntary nature, conflicts of 
interest, and privacy issues surrounding the use of persons other 
than qualified interpreters, particularly where technical 
information, an important right, benefit, service, or access to 
personal or law enforcement information is at stake. In some 
situations, individuals could potentially misuse information they 
obtained in interpreting for other persons. In addition to ensuring 
competency and accuracy of the interpretation, recipients should 
take these special circumstances into account when determining 
whether a person makes a knowing and voluntary choice to use another 
person to interpret, instead of an interpreter provided by the 
recipient.
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    An example of such a case is when security guards respond to an 
illegal entry call. In such a case, use of family members or neighbors 
to interpret for the alleged perpetrator or witnesses may raise 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), or friends, often make their use inappropriate, the use of 
these individuals as interpreters may be an appropriate option where 
proper application of the four factors would lead to a conclusion that 
recipient-provided services are not necessary. An example of this is a 
voluntary, unescorted tour of artwork in a NASA facility open to the 
general public. There, the importance and nature of the activity may be 
relatively low and unlikely to implicate issues of confidentiality, 
conflict of interest, or the need for accuracy. In addition, the 
resources needed and costs of providing language services may be high. 
In such a setting, an LEP person's use of family members, 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 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 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 Language 
Assistance Plan (LAP) for its particular program or activity includes 
the translation of vital written materials into the language of each 
frequently-encountered LEP group eligible to be served and/or likely to 
be affected by the recipient's program.
    Such written materials could include, for example:
    [sbull] Consent and complaint forms
    [sbull] Written notices of rights, or discontinuation of programs 
and/or activities
    [sbull] Notices advising LEP persons of free language assistance
    [sbull] Security or safety brochures for visitors to NASA 
facilities
    [sbull] Applications to participate in a recipient's program or 
activity or to receive recipient benefits or services.
    Whether or not a document (or the information it solicits) is vital 
may depend upon the importance of the program, information, encounter, 
or service involved, and the consequence to the LEP person if the 
information in question is not provided accurately or in a timely 
manner. For instance, applications for participation in an after-school 
science and mathematics enrichment program 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

[[Page 70046]]

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 may serve LEP persons who speak many 
different languages. To translate all written materials into all of 
those languages is unrealistic. Although recent technological advances 
have made it easier for recipients to store and share translated 
documents, such an undertaking would incur substantial costs and 
require substantial resources. Nevertheless, well-substantiated claims 
of lack of resources to translate all vital documents into dozens of 
languages do not necessarily relieve the recipient of the obligation to 
translate those documents into at least several of the more frequently-
encountered languages and to set benchmarks for continued translations 
into the remaining languages over time. As a result, the extent of the 
recipient's obligation to provide written translations of documents 
should be determined by the recipient on a case-by-case basis, looking 
at the totality of the circumstances in light of the four-factor 
analysis. Because translation is a one-time expense, consideration 
should be given to whether the upfront cost of translating a document 
(as opposed to oral interpretation) should be amortized over the likely 
lifespan of the document when applying this four-factor analysis.
    Safe Harbor. Many recipients would like to ensure with greater 
certainty that they comply with their obligations to provide written 
translations in languages other than English. Paragraphs (a) and (b) 
outline the circumstances that can provide a safe harbor for recipients 
regarding the requirements for translation of written materials. A safe 
harbor means that if a recipient provides written translations under 
these circumstances, such action will be considered strong evidence of 
compliance with the recipient's written-translation obligations.
    The failure to provide written translations under the circumstances 
outlined in paragraphs (a) and (b) does not mean there is non-
compliance. Rather, they provide a common starting point for recipients 
to consider whether and at what point the importance of the service, 
benefit, or activity involved; the nature of the information sought; 
and the number or proportion of LEP persons served call for written 
translations of commonly-used forms into frequently-encountered 
languages other than English. Thus, these paragraphs merely provide a 
guide for recipients that would like greater certainty of compliance 
than can be provided by a fact-intensive, four-factor analysis.
    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:
    (a) The NASA recipient provides written translations of vital 
documents for each eligible LEP language group that constitutes five 
percent or 1,000, whichever is less, of the population of persons 
eligible to be served or likely to be affected or encountered. 
Translation of other documents, if needed, can be provided orally; or
    (b) If there are fewer than 50 persons in a language group that 
reaches the five percent trigger in (a), the recipient does not 
translate vital written materials but provides written notice in the 
primary language of the LEP language group of the right to receive 
competent oral interpretation of those written materials, free of cost.
    These safe harbor provisions apply to the translation of written 
documents only. They do not affect the requirement to provide 
meaningful access to LEP individuals through competent oral 
interpreters where oral language services are needed and are 
reasonable. For example, NASA-funded educational enrichment programs 
should, where appropriate, ensure that NASA safety and security rules 
have been explained to LEP participants, at orientation, for instance, 
prior to taking a tour of any NASA facility.
    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 scientific and other technical 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 Aback 
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.
---------------------------------------------------------------------------

    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

[[Page 70047]]

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, of Federal agencies may be helpful.
---------------------------------------------------------------------------

    \12\ For instance, there may be languages which do not have an 
appropriate direct translation of some 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.
---------------------------------------------------------------------------

    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 for LEP persons who rely on them may use translators that 
are less skilled than important documents upon which reliance has 
important consequences (including, e.g., information or documents of 
NASA recipients regarding certain security, health, and safety 
requirements.). 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 LAP for LEP persons 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 LAP, their language assistance 
services, and how staff and LEP persons can access those services. 
Despite these benefits, certain NASA recipients, such as recipients 
serving very few LEP persons and recipients with very limited 
resources, may choose not to develop a written LAP. However, the 
absence of a written LAP 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 a LAP 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.usdoj.gov/crt/cor/13166.htm. When 
records are normally kept of past interactions with members of the 
public, the language of the LEP person can be included as part of the 
record. In addition to helping employees identify the language of LEP 
persons they encounter, this process will help in future applications 
of the first two factors of the four-factor analysis.

(2) Language Assistance Measures

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

(3) Training Staff

    Staff should know their obligations to provide meaningful access to 
information and services for LEP persons. An effective LAP plan would 
likely include training to ensure that:
    [sbull] Staff know about LEP policies and procedures.
    [sbull] Staff having contact with the public (or those in a 
recipient's custody) 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 a LAP. However, 
management staff, even if they do not interact regularly with LEP 
persons, should be fully aware of and understand the plan so they can 
reinforce its importance and ensure its implementation by staff.

(4) Providing Notice to LEP Persons

    Once a recipient has decided, based on the four factors, that it 
will provide language services, it is important for the recipient to 
let LEP persons know that those services are available and that they 
are free of charge. Recipients should provide this notice in a language 
LEP persons will understand. Examples of notification that recipients 
should consider include:
    [sbull] Posting signs in intake areas and other entry points. When 
language assistance is needed to ensure meaningful access to 
information and services, it is important to provide notice in 
appropriate languages in intake areas or initial points of contact so 
that LEP persons can learn how to access those language services. This 
is particularly true in areas with high volumes of LEP persons seeking 
access to certain NASA programs, activities and or facilities run by 
NASA recipients. For instance, signs in entry areas 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. In addition, posting notices in commonly 
encountered languages notifying LEP persons of language assistance will 
encourage them to self-identify.
    [sbull] Stating in outreach documents that language services are 
available from the NASA recipient. Announcements could

[[Page 70048]]

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 placed on the front of common 
documents.
    [sbull] Working with community-based organizations and other 
stakeholders to inform LEP individuals of the recipients' services, 
including the availability of language assistance services.
    [sbull] Using a telephone voice mail menu. The menu could be in the 
most common languages encountered. It should provide information about 
available language assistance services and how to get them.
    [sbull] Including notices in local newspapers in languages other 
than English.
    [sbull] Providing notices on non-English-language radio and 
television stations about the available language assistance services 
and how to get them.
    [sbull] Presentations and/or notices at schools and religious 
organizations.

(5) Monitoring and Updating the LAP

    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 LAP. Less frequent 
reevaluation may be more appropriate where demographics, services, and 
needs are more static. One good way to evaluate the LAP 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 LAP and how to 
implement it.
    [sbull] Whether identified sources for assistance are still 
available and viable.
    In addition to these five elements, effective plans set clear 
goals, management accountability, and opportunities for community input 
and planning throughout the process.

VIII. Voluntary Compliance Effort

    The goal for Title VI and Title VI regulatory enforcement is to 
achieve voluntary compliance. The requirement to provide meaningful 
access to LEP persons is enforced and implemented by NASA 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 NASA will investigate 
whenever it receives a complaint, report, or other information that 
alleges or indicates possible noncompliance with Title VI or NASA 
regulations.\13\ If an investigation results in a finding of 
noncompliance, NASA will inform the recipient in writing of this 
determination, including the basis for the determination. NASA uses 
voluntary mediation to resolve most complaints. However, if a case is 
fully investigated and results in a finding of noncompliance, NASA 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, NASA must secure compliance through the termination of 
federal assistance after the NASA 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. NASA engages in voluntary compliance efforts and provides 
technical assistance to recipients at all stages of an investigation. 
During these efforts, NASA 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, NASA'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.
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    \13\ At educational institutions, investigations will be 
conducted by the U.S. Department of Education under a Memorandum of 
Understanding (MOU) between NASA and the U.S. Department of 
Education.
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    While all recipients must work toward building systems that will 
ensure access for LEP individuals, NASA 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, NASA 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, NASA recipients should ensure that the provision of 
appropriate assistance for significant LEP populations or with respect 
to activities having a significant impact on beneficiaries is addressed 
first. Recipients are encouraged to document their efforts to provide 
LEP persons with meaningful access to federally assisted programs and 
activities.

Dorothy Hayden-Watkins,
Assistant Administrator for Equal Opportunity Programs.
[FR Doc. 03-30931 Filed 12-15-03; 8:45 am]
BILLING CODE 7510-01-P