[Federal Register Volume 72, Number 13 (Monday, January 22, 2007)]
[Notices]
[Pages 2732-2754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-217]



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Part II





Department of Housing and Urban Development





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

  Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / 
Notices  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-4878-N-02]


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

AGENCY: Office of the Assistant Secretary for Fair Housing and Equal 
Opportunity, HUD.

ACTION: Final notice.

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SUMMARY: The Department of Housing and Urban Development (HUD) is 
publishing the final ``Guidance to Federal Financial Assistance 
Recipients Regarding Title VI Prohibition Against National Origin 
Discrimination Affecting Limited English Proficient (LEP) Persons'' 
(Guidance) as required by Executive Order (EO) 13166. EO 13166 directs 
federal agencies that extend assistance, subject to the requirements of 
Title VI, to publish Guidance to clarify recipients' obligations to LEP 
persons. This final Guidance follows publication of the proposed 
Guidance on December 19, 2003.

DATES: Effective Date: February 21, 2007.

FOR FURTHER INFORMATION CONTACT: Pamela D. Walsh, Director, Program 
Standards and Compliance Division, Office of Fair Housing and Equal 
Opportunity, Department of Housing and Urban Development, 451 Seventh 
Street SW., Room 5226, Washington, DC 20410, telephone: (202) 708-2904 
(this is not a toll-free number). Persons with hearing or speech 
impairments may access this number via TTY by calling the toll-free 
Federal Information Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

I. Background--December 19, 2003, Proposed Guidance

    On December 19, 2003 (68 FR 70968), HUD published proposed Guidance 
to help recipients of federal financial assistance take reasonable 
steps to meet their regulatory and statutory obligations to ensure that 
LEP persons have meaningful access to HUD programs and activities. 
Under Title VI of the Civil Rights Act of 1964 (Title VI) and its 
implementing regulations, recipients of federal financial assistance 
have a responsibility to ensure meaningful access to programs and 
activities by LEP persons. Specifically, EO 13166, issued on August 11, 
2000, and reprinted at 65 FR 50121 (August 16, 2000), directs each 
federal agency that extends assistance subject to the requirements of 
Title VI to publish guidance for its respective recipients clarifying 
this obligation.
    This Guidance must adhere to the federal-wide compliance standards 
and framework detailed in the Department of Justice (DOJ) model LEP 
Guidance, published at 67 FR 41455 (June 18, 2002). HUD's proposed 
Guidance followed the established format used in the DOJ model, and 
solicited comments on the Guidance's nature, scope, and 
appropriateness. Specific examples set out in HUD's Guidance explain 
and/or highlight how federal-wide compliance standards are applicable 
to recipients of HUD's federal financial assistance.

II. Significant Differences Between the December 19, 2003, Proposed 
Guidance and This Final Guidance

    This final Guidance takes into consideration the public comments 
received on the December 19, 2003, proposed Guidance. There are no 
significant changes between the proposed Guidance and this final 
Guidance. However, for purposes of clarification, several minor changes 
were made in Appendix A, and a new Appendix B has been added to the 
Guidance. Appendix B, ``Questions and Answers (Q&A),'' responds to 
frequently asked questions (FAQs) related to providing meaningful 
access to LEP persons.

III. Discussion of Public Comments Received on the December 19, 2003, 
Proposed Guidance

    The public comment period on the December 19, 2003, proposed 
Guidance closed on January 20, 2004. On January 20, 2004, the comment 
period was extended to February 5, 2004. HUD received 21 comments. 
Comments were received from public housing agencies, state housing 
agencies, private sector housing providers, organizations serving LEP 
populations, organizations advocating that English be the official U.S. 
language, and trade associations representing public housing agencies. 
HUD also received more than 7,000 postcards from concerned citizens who 
opposed the Guidance as an ``onerous burden'' on small and underfunded 
organizations and groups that advocated adoption of English as the 
official language of the United States.
    The comments expressed a wide range of viewpoints. Many of the 
comments identified areas of the Guidance for improvement and/or 
revision. Other comments objected to sections of the Guidance or to the 
Guidance in its entirety. The most frequent dissenting comments 
involved: (1) Opposition to the Alexander v. Sandoval Supreme Court 
decision [53 U.S. 275 (2001)]; (2) enforcement and compliance efforts 
(including legal enforceability, validity of housing-related legal 
documents, and vulnerability of recipients); (3) applicability of the 
Guidance (including HUD's provision of clearer standards regarding when 
the provision of language services are needed); (4) cost 
considerations; (5) competency of interpreters (including use of 
informal interpreters) and translators; (6) vulnerability of recipients 
as a result of this Guidance (including ``safe harbors''); and (7) 
consistency of translations (including standardized translations of 
documents).
    In addition, four commenters stated that HUD did not solicit the 
input of stakeholders for the proposed Guidance, despite the mandate of 
EO 13166. These and other comments are discussed in greater depth 
below. This preamble presents a more detailed review of the most 
significant concerns raised by the public in response to the December 
19, 2003, proposed Guidance and HUD's response to each concern. The 
preamble's sections are:
     Section IV, which discusses comments regarding the 
Sandoval Supreme Court decision (including enforcement under Title VI);
     Section V, which discusses comments regarding enforcement 
and compliance efforts (including legal enforceability, validity of 
housing-related legal documents, and vulnerability of recipients);
     Section VI, which discusses comments regarding 
applicability of the Guidance (i.e., clearer standards regarding when 
language services can reasonably be expected to be provided);
     Section VII, which discusses comments regarding cost 
considerations;
     Section VIII, which discusses comments regarding 
competency of interpreters (including use of informal interpreters) and 
translators;
     Section IX, which discusses comments regarding 
vulnerability of recipients as a result of this Guidance (including 
``safe harbors'');
     Section X, which discusses comments regarding consistency 
of translations (including standardized translations of documents); and
     Section XI, which discusses other comments.

IV. Comments Regarding the Sandoval Supreme Court Decision (Including 
Enforcement Under Title VI)

    Comment: Several commenters wrote that the proposed Guidance was

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unsupported by law and, therefore, urged its withdrawal. The commenters 
expressed disagreement with the HUD and DOJ positions on the holding in 
Alexander v. Sandoval. Sandoval precludes individuals from bringing 
judicial actions to enforce those agency regulations based on Title VI. 
The commenters wrote that federal agencies have no power to enforce 
such regulations through this Guidance because it would violate the 
Sandoval decision to use the Guidance to determine compliance with 
Title VI and Title VI's regulations.
    HUD Response. HUD reiterates here, as it did in the proposed 
Guidance published on December 19, 2003, that its commitment to 
implement Title VI through regulations reaching language barriers is 
longstanding and is unaffected by the Sandoval decision. In its 
proposed Guidance, HUD stated that DOJ had disagreed with the 
interpretation voiced by the commenters, and in its final Guidance, HUD 
continues to take this position. The Guidance and the response to 
Appendix B, Q&As XV, XXIV, and XXV, state that the Supreme Court, in 
the Sandoval decision, did not strike down Title VI itself or Title 
VI's disparate impact regulations (at HUD, that would be its civil 
rights-related program requirements or ``CRRPRs''), but only ruled that 
individuals could not enforce these Title VI regulations through the 
courts and could only bring such court action under the statute itself. 
The Guidance further states that because the Supreme Court did not 
address the validity of the regulations or EO 13166, that both remain 
in effect. Individuals may still file administrative complaints with 
HUD alleging Title VI and Title VI regulatory violations for failing to 
take reasonable steps to provide meaningful access to LEP persons.
    Appendix B, Q&As II, III, and IV further clarify the requirements 
of both the EO and Title VI of the Civil Rights Act of 1964. These 
responses describe the obligations of federal agencies under the EO and 
how Title VI applies to situations involving discrimination against LEP 
persons. These Q&As explain that Title VI of the Civil Rights Act of 
1964 is the federal law that protects individuals from discrimination 
on the basis of their race, color, or national origin in programs that 
receive federal financial assistance. Federally conducted programs and 
activities are required to meet the standards for taking reasonable 
steps to provide meaningful access to LEP persons under EO 13166. In 
addition, all programs and operations of entities that receive 
financial assistance from the federal government, including, but not 
limited to, state agencies, local agencies, and for-profit and 
nonprofit entities, and all sub-recipients (those that receive funding 
passed through a recipient) must comply with the Title VI obligations 
(including those in the regulations). Programs that do not receive 
federal funding, such as those that receive Federal Housing 
Administration (FHA) insurance, are not required to comply with Title 
VI's obligations. (If the recipient received FHA insurance along with 
Rental Assistance, construction subsidy, or other federal assistance, 
it would be required to comply with Title VI requirements.) In certain 
situations, failure to ensure that LEP persons can effectively 
participate in, or benefit from, federally assisted programs may 
violate Title VI's prohibition against national origin discrimination. 
EO 13166, signed on August 11, 2000, directs all federal agencies, 
including HUD, to work to ensure that programs receiving federal 
financial assistance provide meaningful access to LEP persons. Section 
3 of the EO requires all federal agencies to issue LEP guidance to help 
federally assisted recipients in providing such meaningful access to 
their programs. This guidance must be consistent with DOJ Guidance, but 
tailored to the specific federal agency's federally assisted 
recipients. HUD has written its general Guidance and Appendices to meet 
these requirements.

V. Comments Regarding Enforcement and Compliance Efforts (Including 
Legal Enforceability and Validity of Housing-Related Legal Documents 
and Vulnerability of Recipients)

    Comment: Two commenters who supported adoption of the proposed 
Guidance recommended that HUD provide more detailed Guidance to its 
staff on enforcement and compliance and encouraged collaboration with 
nonprofit organizations, such as fair housing groups funded by the Fair 
Housing Initiatives Program (FHIP). A number of commenters, while 
supportive of the Guidance and HUD's leadership in this area, suggested 
modifications that would, in their view, provide a more definitive 
statement of the minimal compliance standards or better describe how 
HUD would evaluate activities under a more flexible compliance 
standard. There were also comments that claimed the Guidance was 
actually a set of regulatory requirements masquerading as ``Guidance''; 
one commenter stated that the Guidance would be used to determine 
compliance with Title VI and its regulations, rather than as 
discretionary advice.
    HUD Response. HUD's rule at 24 CFR 1.7(c) requires HUD to undertake 
``a prompt investigation whenever a compliance review, report, 
complaint, or any other information indicates a possible failure to 
comply with this part 1.'' As explained further in Appendix B, Q&As 
XVI, XVIII, and XIX, FHEO will investigate or review complaints or 
other information that suggests a recipient is not in compliance with 
its Title VI obligations. HUD will determine whether the recipient has 
made reasonable efforts to ensure participation of LEP persons in 
programs or activities receiving federal financial assistance from HUD. 
Review of the evidence will include, but may not be limited to, 
application of the four-factor analysis identified in the LEP Guidance, 
which provides a framework for reviewing the totality of the 
circumstances and objectively balances the need to ensure meaningful 
access by LEP persons and without imposing undue burdens on recipients. 
HUD will also collect and evaluate evidence about whether the recipient 
has adopted a Language Access Plan (LAP) that reflects LEP needs (or 
addressed LEP needs in another official plan, such as the PHA or 
Consolidated Plan), implemented the Plan, and maintained Title VI 
compliance records that demonstrate services provided to LEP persons. 
HUD will inform the recipient of any findings of compliance or non-
compliance in writing. If the investigation or review results in 
findings that the recipient has failed to comply with HUD's rules at 24 
CFR part 1, HUD will inform the recipient and attempt to resolve the 
findings by informal means [24 CFR 1.7(d)]. HUD may use other means of 
voluntary cooperation, such as negotiation and execution of a voluntary 
compliance agreement. If HUD determines that compliance cannot be 
secured by voluntary means, HUD may use other means to enforce its 
rules under Title VI, such as the suspension or termination of approved 
funding or refusal to grant future funding [24 CFR 1.8(a), (c), and 
(d)]. HUD also may refer the matter to DOJ for enforcement action.
    Appendix B, Q&A VII, provides additional guidance on the four-
factor analysis by explaining that recipients are required to take 
reasonable steps to ensure meaningful access to LEP persons. This 
standard is intended to be both flexible and fact-dependent and also to 
balance the need to ensure meaningful access by LEP persons to critical 
services while not imposing

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undue financial burdens on small businesses, small local governments, 
or small nonprofit organizations. The recipient may conduct an 
individualized assessment that balances the following four factors: (1) 
Number or proportion of LEP persons served or encountered in the 
eligible service population (``served or encountered'' includes those 
persons who would be served or encountered by the recipient if the 
persons were afforded adequate education and outreach); (2) frequency 
with which LEP persons come into contact with the program; (3) nature 
and importance of the program, activity, or service provided by the 
program; and (4) resources available to the recipient and costs to the 
recipient. It further refers recipients to examples of applying the 
four-factor analysis to HUD-specific programs in Appendix A of HUD LEP 
Guidance.
    Appendix B, Q&A IX, explains that after completing the four-factor 
analysis and deciding what language assistance services are 
appropriate, a recipient may develop a LAP or Implementation Plan to 
address identified needs of the LEP populations it serves. Some 
elements that may be helpful in designing an LAP include: (1) 
Identifying LEP persons who need language assistance and the specific 
language assistance that is needed; (2) identifying ways in which 
language assistance will be provided; (3) providing effective outreach 
to the LEP community; (4) training staff; (5) translating informational 
materials in identified language(s) that detail services and activities 
provided to beneficiaries (e.g., model leases, tenants' rights and 
responsibilities brochures, fair housing materials, first-time 
homebuyer guide); (6) providing appropriately translated notices to LEP 
persons (e.g., eviction notices, security information, emergency 
plans); (7) providing interpreters for large, medium, small, and one-
on-one meetings; (8) developing community resources, partnerships, and 
other relationships to help with the provision of LEP services; and (9) 
making provisions for monitoring and updating the LAP.
    However, HUD did not make changes to the Guidance itself. At this 
time, HUD does not feel that a specific separate statement of 
compliance standards is needed. HUD will continue to apply current 
Title VI investigative standards when conducting LEP investigations or 
compliance reviews. (See Appendix B, Q&A VI, for further discussion.)
    Comment: Several commenters stated that housing documents of a 
legal nature, such as leases, sales contracts, etc., that are 
translated into foreign languages might not be upheld in court as 
legally enforceable.
    HUD Response. HUD appreciates this concern that the documents 
required by the Guidance would complicate possible eviction actions. 
State and local law govern contractual agreements between residents and 
landlords.
    Comment: Commenters stated that questions could be raised about the 
accuracy of the translation and whether, for example, a tenant's 
signature on both English language and foreign language versions of a 
housing-related legal document would be upheld as valid in a judicial 
proceeding.
    HUD Response. HUD recommends that when leases are translated into 
other languages than English, the recipient only ask the tenant to sign 
the English lease. The translated document would be provided to the 
tenant but marked ``For information only.'' However, this 
recommendation in no way minimizes the need to ensure meaningful 
access, and therefore to take reasonable measures, such as second 
checks by professional translators, to ensure that the translation is 
accurate.

VI. Comments Regarding Applicability of the Guidance (i.e., HUD Should 
Provide Clearer Standards Regarding the Provision of Language Services)

    Comment: Several commenters wrote that the statement ``coverage 
extends to a recipient's entire program or activity * * * even if only 
one part of the recipient receives the federal assistance,'' places an 
unwarranted burden on an entire program. One commenter gave the example 
of a PHA that contracts with a Residents' Council that provides some 
level of LEP services. The commenter recommended that the PHA should 
not be required to enforce LEP requirements against the Residents' 
Council unless there is clear evidence of discriminatory intent.
    HUD Response. With regard to the specific example of a Residents' 
Council that provides some level of LEP services, given the context, we 
assume that this comment intended to characterize the Council as a 
subrecipient of federal financial assistance. The proposed Guidance 
issued on December 19, 2003, states that ``subrecipients likewise are 
covered when federal funds are passed through from one recipient to a 
subrecipient.'' Recipients such as Community Development Block Grant 
(CDBG) Entitlement jurisdictions, CDBG state programs, and PHAs are 
required to monitor their subrecipients who receive federal financial 
assistance for a variety of purposes. Among these purposes are that 
such entities are also subject to the requirements of Title VI of the 
Civil Rights Act of 1964, as amended by the Civil Rights Restoration 
Act of 1987. This final Guidance does not change the position taken on 
this issue as cited in the proposed Guidance. Therefore, the Resident 
Counsel in the above comment would be subject to Title VI if it 
received any funding from the PHA, although its analysis may indicate 
that it must provide little, if any, LEP services. The Guidance and 
Appendix B, Q&A IV, restate that Title VI's LEP obligations apply to 
(1) all programs and activities of entities that receive federal 
financial assistance, and (2) all subrecipients that receive federal 
funds that are passed through a recipient. Entities that are not 
recipients or subrecipients of federal financial assistance are not, 
themselves, subject to Title VI requirements (see 24 CFR 1.2), although 
recipients using contractors to carry out recipient activities remain 
obligated to ensure civil rights compliance in those activities. With 
regard to the comment that LEP requirements should only apply to 
subrecipients in the case of clear evidence of discriminatory intent, 
refer to Appendix B, Q&A IV, for a more in-depth response. Finally, 
this Guidance in no way expands the scope of coverage mandated by Title 
VI, as amended by the Civil Rights Restoration Act of 1987, which 
defined the terms ``program'' and ``program or activity.''

VII. Comments Regarding Cost Considerations

    Comments: A number of comments focused on the cost considerations 
as an element of HUD's flexible four-factor analysis for identifying 
and addressing the language assistance needs of LEP persons. For 
example, several commenters said that implementing this Guidance would 
constitute an unfunded mandate and that the total costs nationally 
would exceed the $100 million limit stipulated in the Unfunded Mandates 
Control Act. Commenters also stated that document translation is not a 
``one-time'' cost, since laws, regulations, and Guidance all change 
over time. In addition, several commenters noted that private housing 
providers and PHAs would not be able to recover the costs of 
implementing LEP services through rent increases, since LEP services 
are not included in HUD formulae used to calculate and approve rent 
increases. A few comments suggested that the flexible fact-dependent 
compliance standard incorporated by the Guidance, when combined with 
the desire of most recipients to avoid the risk of noncompliance, could 
lead some large,

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statewide recipients to incur unnecessary or inappropriate financial 
burdens in conjunction with already strained program budgets.
    While no comments urged that costs be excluded from the analysis, 
some commenters wrote that a recipient could use cost as an 
inappropriate justification for avoiding otherwise reasonable and 
necessary language assistance to LEP persons.
    HUD Response. HUD believes that costs are a material consideration 
in identifying the reasonableness of particular language assistance 
measures, and that the Guidance identifies an appropriate framework by 
which costs are to be considered. The Department recognizes that some 
projects' budgets and resources are constrained by contracts and 
agreements with the Department. These constraints may impose a material 
burden upon the projects. Where a recipient of HUD funds can 
demonstrate such a material burden, HUD views this as a critical item 
in the consideration of costs in the four-factor analysis. However, 
where documents share common text, costs can be significantly decreased 
through pooling resources. For instance, many HUD recipients of HUD 
funds belong to national organizations that represent their interests. 
HUD recommends that these national groups set aside some funds from 
membership fees to offset the written translations. In addition, the 
same national groups may contract with a telephone interpreter service 
to provide oral interpretation on an as-needed basis. Appendix A 
discusses this issue in greater depth. Appendix B, Q&A VII, integrates 
the issue of cost as part of the discussion of the four-factor analysis 
described in the Guidance by advising the recipient to take into 
account both the costs and resources available to the recipient.
    In addition, Appendix B, Q&A XII, explains how a recipient may 
supplement its limited resources to provide necessary language services 
without sacrificing quality and accuracy. The federal government's LEP 
Web site, http://www.lep.gov/recip.html (scroll to translator and 
interpreter organizations), lists some examples of associations and 
organizations whose members may provide translation and interpretation 
services. In addition, the General Services Administration maintains a 
language services database for both written translations and oral 
interpretation that can be accessed at: http://www.gsaelibrary.gsa.gov/ElibMain/SinDetails?executeQuery=YES&scheduleNumber=738+II&flag 
&filter=&specialItemNumber=382+1. Site visitors may choose an 
interpreter or translator from among a list of language service 
providers. Language service providers are available through other 
means, as well, and the above list is in no way meant to be an 
exclusive list or recommendations, but rather is shared for information 
purposes only.

VIII. Comments Regarding Competency of Interpreters (Including Use of 
Informal Interpreters) and Translators

    Comment: Several commenters wrote that written LAPs should include 
language strongly discouraging or severely limiting the use of informal 
interpreters, such as family members, guardians, or friends. Some 
recommended that the Guidance prohibit the use of informal interpreters 
except in limited or emergency situations. Commenters expressed concern 
that the technical and ethical competency of interpreters could 
jeopardize meaningful and appropriate access at the level and type 
contemplated under the Guidance.
    HUD Response. HUD believes that the Guidance is sufficient to allow 
recipients to achieve the proper balance between the many situations 
where the use of informal interpreters is inappropriate, and the few 
where the transitory and/or limited use of informal interpreters is 
necessary and appropriate in light of the nature of the service or 
benefit being provided and the factual context in which that service or 
benefit is being provided. Appendix B, Q&A XIII, states that a 
recipient should generally discourage the use of family members or 
other informal interpreters, but should permit the use of interpreters 
of the LEP person's choosing when that LEP person rejects the 
recipient's free language assistance services. This Guidance further 
explains and clarifies all aspects of how a recipient can provide 
different types of interpretation services, including informal 
interpreters for different situations. To ensure the quality of written 
translations and oral interpretations, HUD encourages recipients to use 
professional interpreters and translators.
    Comment: A number of commenters objected to requiring recipients to 
determine the competency of interpreters or translators, and strongly 
stated that such a requirement was too burdensome for the small- to 
medium-sized housing providers. A few commenters urged HUD to provide 
details on particular interpretation standards or approaches that would 
apply on a national basis.
    HUD Response. HUD declines to set such professional or technical 
standards. General guidelines for translator and interpreter competency 
are set forth in the Guidance. Recipients, beneficiaries, and 
associations of professional interpreters and translators could 
collaborate in identifying the applicable professional and technical 
interpretation standards that are appropriate for particular 
situations. For example, local, state, or national chapters of 
businesses or housing trade organizations can set up and enforce a set 
of rules and standards that will qualify interpreters and translators 
to participate in housing-related legal and other program-related 
transactions. Alternatively, PHAs may be able to find qualified 
interpreters and translators through associations representing that 
industry (e.g., American Translators Association, National Association 
of Judicial Interpreters and Translators, Translators and Interpreters 
Guild, and others) or even from for-profit organizations. Housing 
provider groups and/or individual housing providers can, as part of 
their LAPs, communicate with the state Attorney General's Office or the 
State Administrative Offices of the Courts regarding the regulations 
that govern the use of interpreters in most legal proceedings in state 
courts. Sections VI.A.1 and VI.B.4 of the general Guidance provide 
information on how to determine the competency of interpreters and 
translators. In addition, Appendix B, Q&A XII, re-emphasizes that the 
recipient should try to ensure the quality and accuracy of any 
interpretation or translation services provided.

IX. Comments Regarding Vulnerability of Recipients as a Result of This 
Guidance (Including ``Safe Harbors'')

    Comments: Some comments focused on providing ``safe harbors'' for 
oral translations and provision of written translation for vital 
documents. The commenters stated that there should be a level below 
which there would be no need to provide language services where the 
numbers and proportions of the population that are LEP are 
insignificant. Another commenter recommended that the ``safe harbor'' 
standards be less stringent and that compliance be determined based on 
the total circumstances.
    Comment: While not clearly stated in any of the comments, there 
appeared to be a misunderstanding about how the safe harbor 
requirements applied to the eligible population of the market area as 
opposed to current beneficiaries of the recipient.
    HUD Response. This final Guidance makes no changes to the ``safe 
harbor''

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provisions found at Paragraph VI.B.3 or the Guidance in Appendix A.
    Oral Interpretation v. Written Translation: The ``safe harbor'' 
provided in this Guidance is for written translations only. There is no 
``safe harbor'' for oral interpretation. In fact, Q&As XXII and XXIII 
clarify that no matter how few LEP persons the recipient is serving, 
oral interpretation services should be made available in some form. 
Recipients should apply the four-factor analysis to determine whether 
they should provide reasonable and timely, oral interpretation 
assistance, free of charge, in all cases, to any beneficiary that is 
LEP. Depending on the circumstances, reasonable oral interpretation 
assistance might be an in-person or telephone service line interpreter.
    Safe Harbor for Written Translations: Q&A XX explains how the four-
factor analysis and the recipient's subsequent actions may be used to 
provide a ``safe harbor'' for written translations. HUD LEP Guidelines 
in Paragraph VI(B)(3) explains how certain recipient activities would 
constitute a ``safe harbor'' against a HUD finding that the recipient 
had not made reasonable efforts to provide written language assistance. 
As has already been noted, this Guidance is not intended to provide a 
definitive answer governing the translation of written documents for 
all recipients, nor one that is applicable in all cases and for all 
situations. Rather, in drafting the ``safe harbor'' and vital documents 
provisions of the Guidance, HUD sought to provide one, but not 
necessarily the only point of reference for when a recipient should 
consider translations of documents (or the implementation of 
alternatives to translating such documents). The recipient should 
consider its particular program or activity, the document or 
information in question, and the potential LEP populations served.
    Specific Safe Harbor Guidance: Appendix B, Q&A XXI, provides a 
helpful table that further clarifies the ``safe harbors'' for written 
translations based on the number and percentages of the market area-
eligible population or current beneficiaries and applicants that speak 
a specific language. According to the table, HUD would expect 
translations of vital documents to be provided when the eligible LEP 
population in the market area or the current beneficiaries exceeds 
1,000 persons or if it exceeds 5 percent of the eligible population or 
beneficiaries along with more than 50 persons. In cases where more than 
5 percent of the eligible population speaks a specific language, but 
fewer than 50 persons are affected, there should be a translated 
written notice of the person's right to an oral interpretation. An oral 
interpretation should be made available in all cases.
    Vital Documents: Q&A XX defines a ``safe harbor'' for written 
translations for purposes of this Guidance as one where the recipient 
has undertaken efforts to prevent a finding of non-compliance with 
respect to the needed translation of vital written materials. HUD's 
Guidance follows DOJ's Guidance that define a ``safe harbor'' only for 
the translation of vital documents. Q&A X describes how to determine if 
a document is a ``vital document.'' Vital documents are those that are 
critical for ensuring meaningful access by beneficiaries or potential 
beneficiaries generally and LEP persons specifically. If a recipient 
(1) undertakes the four-factor analysis, (2) determines a need for 
translated materials, and (3) translates vital documents to accommodate 
the primary languages of its LEP applicants, beneficiaries, and 
potential beneficiaries, then HUD will consider this strong evidence of 
compliance with respect to translation of vital documents.
    The decision as to what program-related documents should be 
translated into languages other than English is a complex one. While 
documents generated by a recipient may be helpful in understanding a 
program or activity, not all are critical or vital to ensuring 
meaningful access by beneficiaries generally and LEP persons 
specifically. Some documents may create or define legally enforceable 
rights or responsibilities on the part of individual beneficiaries 
(e.g., leases, rules of conduct, notices of benefit denials, etc.). 
Others, such as applications or certification forms, solicit important 
information required to establish or maintain eligibility to 
participate in a federally assisted program or activity. For some 
programs or activities, written documents may be the core benefit or 
service provided. Moreover, some programs or activities may be 
specifically focused on providing benefits or services to significant 
LEP populations. Finally, a recipient may elect to solicit vital 
information orally as a substitute for written documents. Certain 
languages are oral rather than written, and thus a high percentage of 
such LEP speakers will likely be unable to read translated documents or 
written instructions. Each of these factors should play a role in 
deciding: (1) What documents should be translated; (2) what target 
languages other than English are appropriate; and (3) whether more 
effective alternatives exist, rather than continued reliance on written 
documents to obtain or process vital information.
    Eligible population in the housing market area vs. current 
beneficiaries and applicants: While the final Guidance makes no changes 
to the safe harbor provisions found in Section VI.B.3. of the Guidance 
or to that found in Appendix A, the latter has been changed to 
differentiate between how the results of the ``safe harbor'' will 
affect a recipient's outreach efforts to eligible LEP populations as 
opposed to its LEP services for current beneficiaries and applicants of 
its programs. We have clarified in the ``Housing'' portion of Appendix 
A, as well as in Appendix B, Q&A XXI, that the ``safe harbor'' 
evaluation will differ depending on the population the recipient is 
considering. When conducting outreach to the eligible population in the 
housing market area, the number and percentage of the eligible LEP 
population in that housing market area should be evaluated. When 
working with a recipient's own beneficiaries (e.g., residents of a 
specific housing development or applicants to the housing development), 
the number and percentage of LEP persons living in the housing and on 
the waiting list should be evaluated.
    Guidance v. Requirements: Regarding written translations, the 
general HUD Guidance does identify actions that will be considered 
strong evidence of compliance with Title VI LEP obligations. However, 
the failure to provide written translations under these cited 
circumstances does not necessarily mean that the recipient is in non-
compliance. Rather, the ``safe harbors'' provide a starting point for 
recipients to consider whether the following justify written 
translations of commonly used forms into frequently encountered 
languages other than English: (1) The importance of the service, 
benefit, or activity and the nature of the information sought; (2) the 
number or proportion of LEP persons served; (3) the frequency with 
which LEP persons need this particular information and the frequency of 
encounters with the particular language being considered for 
translation; and (4) resources available, including costs.
    Comment: One comment pointed out that current demographic 
information based on the 2000 Census or other data was not readily 
available to assist recipients in identifying the number or proportion 
of LEP persons and the significant language groups among their 
otherwise eligible beneficiaries.
    HUD Response. This information is now available at: http://

[[Page 2737]]

www.census.gov/main/www/com2000.html.

X. Comments Regarding Consistency of Translations (Including 
Standardized Translations of Documents)

    Comment: One commenter stated that the concept of ``safe harbors'' 
should reflect an agreed-upon split of responsibilities between HUD and 
its private and public sector partners. Several commenters proposed 
that HUD provide standardized translations of basic programmatic and 
legal documents associated with HUD housing programs (e.g., public 
housing lease, housing discrimination complaint form, etc). They also 
recommended that HUD assume the cost of such translations as a means of 
reducing the costs of LEP services.
    HUD Response. On an ad hoc basis, HUD's individual program offices 
have translated ``as needed'' important documents that affect that 
particular office's programs. This approach has been effective and will 
be continued.

XI. Other Comments

    Comment: Several national organizations representing assisted 
housing providers said HUD should place a ``disclaimer'' on its 
translated documents that stipulates they are: (1) HUD translations, 
(2) provided as supplementary information, (3) not replacement for the 
official English document, and (4) not word-for-word translations of 
the housing providers documents.
    HUD Response. After undertaking reasonable quality control measures 
to ensure the accuracy of the translation, HUD will use the following 
language as a disclaimer in its translated lease or other documents: 
``This document is a translation of a HUD-issued legal document. HUD 
provides this translation to you merely as a convenience to assist in 
your understanding of your rights and obligations. The English language 
version of this document is the official, legal, controlling document. 
This translated document is not an official document.''
    Comment: Recipients of HUD funds have commented on potential 
complications that may arise during legal proceedings on the eviction 
of non-compliant residents. Recipients noted that failure on the part 
of the housing providers to provide all vital documents in the 
resident's native language would create a defense against eviction.
    HUD Response. HUD appreciates this concern that the documents 
required by the Guidance would complicate possible eviction actions. As 
stated in Appendix B, Q&A XIV, state and local laws control contractual 
agreements between residents and landlords. Notwithstanding, HUD is 
unaware of any state or local case law that would encumber the eviction 
process.
    Comment: National organizations representing assisted housing 
providers commented that the definition of ``Who is LEP?'' is 
misleading. They pointed out that since all members of the family over 
18 years of age must sign the lease and related documents, they, 
therefore, are all legally responsible for the terms and conditions of 
the lease. If a member of the family who signs the lease is English 
proficient, then this family should not be counted as LEP, and the 
standards for providing alternate language services to that family 
should not apply.
    HUD response. HUD and its recipients do not determine who is LEP. 
The beneficiaries of the services and activities identify themselves as 
LEP.
    Comment: HUD received more than 7,000 postcards from individual 
citizens who opposed the Guidance as an ``onerous burden'' on small and 
underfunded organizations and who advocated adoption of English as the 
official language of the United States.
    HUD Response. As stated in Appendix B, Q&As II and III, the 
Guidance is based on Title VI of the Civil Rights Act of 1964, which 
prohibits discrimination based on national origin in programs and 
activities receiving federal financial assistance, and is, therefore, 
not a new requirement. The Guidance requires that meaningful access to 
programs, activities, and services that receive such assistance are 
expected to be provided to LEP persons. As explained in Appendix B, Q&A 
XXVI, recipients operating in jurisdictions in which English has been 
declared the official language continue to be subject to Title VI 
federal nondiscrimination requirements, including those applicable to 
the provisions of federally assisted services to LEP persons.
    Comment: Four commenters stated that HUD did not solicit the input 
of housing industry stakeholders in drafting the Guidance, despite the 
mandate of EO 13166. They recommended that HUD convene a stakeholder 
meeting to discuss issues relating to the final version of this 
Guidance.
    HUD Response. HUD contends that the process of publishing the 
December 19, 2003, proposed Guidance, providing the public comment 
period, reviewing the issues raised by the comments, and issuing this 
final version of the Guidance (with Appendices A and B) provided 
adequate opportunity for all housing industry stakeholders to review, 
discuss, and comment on the Guidance. HUD has determined that no 
separate housing industry stakeholder meetings are necessary.
    Since publication of the proposed Guidance, HUD has provided 
several training sessions to industry groups. After this final Guidance 
is published, HUD plans to hold a series of public forums where PHAs, 
housing and service providers, and other HUD program recipients and 
beneficiaries may exchange ideas on how to implement this Guidance and 
discuss and identify ``promising practices'' in serving LEP persons.
    In addition, the following clarifying comments have been added in 
Appendix B: (1) Q&A I defines LEP persons as ``persons who, as a result 
of national origin, do not speak English as their primary language and 
who have a limited ability to speak, read, write or understand 
English;'' (2) Q&A V describes the applicability of these requirements 
to immigration and citizenship by explaining that U.S. citizenship and 
LEP should not be used interchangeably. It is possible for a person to 
be a citizen and LEP, or for a person to be fluent in English but not a 
U.S. citizen. Some, but not all, HUD programs do require recipients to 
document the citizenship or eligible immigrant status of program 
beneficiaries. Title VI applies equally to citizens, documented non-
citizens and undocumented non-citizens, based on the LEP status of 
those who meet program requirements; (3) Q&A VIII specifies the types 
of language assistance that may be used. These include, but are not 
limited to, oral interpretation services, bilingual staff, telephone 
service lines interpreters, written translation services, notices to 
staff and recipients of the availability of LEP services, and referrals 
to community liaisons proficient in the language of LEP persons; (4) 
Q&A XI helps to determine the language needs of a beneficiary. 
Recipients may ask about language service needs from all prospective 
beneficiaries (regardless of the prospective beneficiary's race or 
national origin) and use language identification (or ``I speak'') cards 
that invite LEP persons to identify their own language needs. To reduce 
costs of compliance, the Bureau of the Census has made a set of these 
cards available on the Internet at http://www.usdoj.gov/crt/cor/13166.htm; (5) Q&A XIII tells beneficiaries how to file a complaint; 
and (6) Q&A XXVII provides the address for the Web site to obtain 
further

[[Page 2738]]

information. The Web site also contains a link to another set of ``I 
speak'' cards in a different format. A recipient of DOJ funds and 
translator and interpreter organizations jointly created these. They 
are available at http://www.lep.gov/ocjs_languagecard.pdf. Other 
promising practices can also be found in the General Chapter (Chapter 
1) of DOJ's Tips and Tools document, found at http://www.lep.gov/tips_tools_92104.pdf and at http://www.lep.gov/tips_tools_92104.htm.
    In addition to addressing the concerns noted above, HUD has 
substituted, where appropriate, technical or stylistic changes that 
more clearly articulate, in HUD's view, the underlying principles, 
guidelines, or recommendations detailed in the final Guidance. Language 
has been added that clarifies the Guidance's application to activities 
undertaken by a recipient either voluntarily or under contract in 
support of a federal agency's functions. After appropriate revision 
based on an in-depth review and analysis of the comments, with 
particular focus on the common concerns summarized above, HUD adopts 
its final ``Notice of Guidance to Federal Financial Assistance 
Recipients Regarding Title VI Prohibition Against National Origin 
Discrimination Affecting Limited English Proficiency Persons.'' The 
text of this final Guidance, along with Appendices A and B, are below. 
Title VI regulations that deal with discrimination based on national 
origin have not changed, and violations of the prohibition on national 
origin discrimination will continue to be enforced as in the past. 
Therefore, no substantive changes have been made to the general 
Guidance, although some editorial changes were made. A few substantive 
changes were made to the HUD-specific Guidance in Appendix A, from that 
which was published as proposed Guidance at 68 FR 70968 on December 19, 
2003. The changes were made to provide clarity. Some editorial changes 
were also made.

Final Guidance

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.'' In the 2000 
census, 28 percent of all Spanish and Chinese speakers and 32 percent 
of all Vietnamese-speakers reported that they spoke English ``not 
well'' or ``not at all.''
    Language for LEP persons 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 programs, services, and activities 
that can be made accessible to otherwise-eligible LEP persons. The 
federal government is committed to improving the accessibility of these 
programs and activities to eligible LEP persons, a goal that reinforces 
its equally important commitment to promoting programs and activities 
designed to help individuals learn English. Recipients should not 
overlook the long-term positive impacts of incorporating or offering 
English as a Second Language (ESL) programs in parallel with language 
assistance services. ESL courses can serve as an important adjunct to a 
proper LEP plan or Language Access 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 programs, 
services, and activities. HUD 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.
    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 
describing the factors recipients should consider in fulfilling their 
responsibilities to LEP persons. 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. These are the same criteria HUD will use in evaluating 
whether recipients are in compliance with Title VI and Title VI 
regulations.
    As with most government initiatives, guidance on LEP requires 
balancing several principles. While this Guidance discusses that 
balance in some detail, it is important to note the basic principles 
behind that balance. First, HUD must ensure that federally assisted 
programs aimed at the American public do not leave some behind simply 
because they face challenges communicating in English. This is of 
particular importance because, in many cases, LEP individuals form a 
substantial portion of those encountered in federally assisted 
programs. Second, HUD must achieve this goal while finding constructive 
methods to reduce the costs of LEP requirements on small businesses, 
small local governments, or small non-profit entities that receive 
federal financial assistance.
    There are many productive steps that the federal government, either 
collectively or as individual grant agencies, can take to help 
recipients reduce the costs of language services, without sacrificing 
meaningful access for LEP persons. Without these steps, certain smaller 
grantees may well choose not to participate in federally assisted 
programs, threatening the critical functions that the programs strive 
to provide. To that end, HUD plans to continue to provide assistance 
and guidance in this important area. In addition, HUD plans to work 
with representatives of state and local governments, public housing 
agencies, assisted housing providers, fair housing assistance programs 
and other HUD recipients, and LEP persons to identify and share model 
plans, examples of best practices, and cost-saving approaches. 
Moreover, HUD intends to explore how language assistance measures, 
resources, and cost-containment approaches developed with respect to 
its own federally conducted programs and

[[Page 2739]]

activities can be effectively shared or otherwise made available to 
recipients, particularly small businesses, small local governments, and 
small non-profit entities. 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 persons who commented on the Department of Justice's (DOJ) 
proposed LEP guidance, published January 16, 2001 (66 FR 3834), later 
published for additional public comment on January 18, 2002 (67 FR 
2671), and published as final on June 18, 2002 (67 FR 41455), have 
noted that some have interpreted the case of Alexander v. Sandoval, 532 
U.S. 275 (2001), as implicitly 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. DOJ and HUD have taken the position that this is not the 
case, for reasons explained below. Accordingly, HUD will strive to 
ensure that federally assisted programs and activities work in a way 
that is effective for all eligible beneficiaries, including those with 
limited English proficiency.

II. Legal Authority

    Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d, provides that no person shall ``on the ground of race, color, or 
national origin, be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination under any program or 
activity receiving federal financial assistance.'' Section 602 
authorizes and directs federal agencies that are empowered to extend 
federal financial assistance to any program or activity ``to effectuate 
the provisions of [section 601] * * * by issuing rules, regulations, or 
orders of general applicability'' (42 U.S.C. 2000d-1).
    HUD regulations promulgated pursuant to section 602 forbid 
recipients from ``utiliz[ing] criteria or methods of administration 
which have the effect of subjecting individuals to discrimination 
because of their race, color, or national origin, or have the effect of 
defeating or substantially impairing accomplishment of the objectives 
of the program as respects individuals of a particular race, color, or 
national origin'' (24 CFR 1.4).
    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 HUD, 
24 CFR 1.4, 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,'' was issued and 
published on August 16, 2000 (65 FR 50121). Under that order, every 
federal agency that provides financial assistance to non-federal 
entities must publish guidance on how their recipients can provide 
meaningful access to LEP persons and thus comply with Title VI 
regulations forbidding funding recipients from ``restrict[ing] an 
individual in any way in the enjoyment of any advantage or privilege 
enjoyed by others receiving any service, financial aid, or other 
benefit under the program'' or from ``utiliz[ing] criteria or methods 
of administration which have the effect of subjecting individuals to 
discrimination because of their race, color, or national origin, or 
have the effect of defeating or substantially impairing accomplishment 
of the objectives of the program as respects individuals of a 
particular race, color, or national origin.''
    On that same day, DOJ issued a general guidance document addressed 
to ``Executive Agency Civil Rights Officers'' setting forth general 
principles for agencies to apply in developing guidance documents for 
recipients pursuant to the Executive Order. The DOJ document is titled, 
``Enforcement of Title VI of the Civil Rights Act of 1964 National 
Origin Discrimination Against Persons With Limited English 
Proficiency,'' published on August 16, 2000 (65 FR 50123) (``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, the 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. 
This Guidance noted that some have interpreted Sandoval as implicitly 
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.''). This guidance, however, makes clear that the DOJ disagreed 
with this interpretation. Sandoval holds principally that there is no 
private right of action to enforce Title VI disparate-impact 
regulations. The case 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. 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.
    This HUD policy is thus published pursuant to Title VI, Title VI 
regulations, and Executive Order 13166. It is consistent with the final 
DOJ ``Guidance to Federal Financial Recipients Regarding Title VI 
Prohibition Against National Origin Discrimination Affecting Limited 
English Proficient Persons,'' published on June 18, 2002 (67 FR 41455).

III. Who Is Covered?

    HUD's regulation, 24 CFR Part 1, ``Nondiscrimination in Federally 
Assisted Programs of the Department of Housing and Urban Development--
Effectuation of Title VI of the Civil Rights Act of 1964,'' requires 
all recipients of federal financial assistance from HUD to provide 
meaningful access to LEP persons. Pursuant to Executive Order 13166, 
the meaningful access requirement of the Title VI regulations and the 
four-factor analysis set forth in this LEP Guidance are to additionally 
apply to the programs and activities of federal agencies, including 
HUD. Federal financial assistance includes grants, training, use of 
equipment, donations of surplus property, and other assistance. 
Recipients of HUD assistance include, for example:
     State and local governments;
     Public housing agencies;
     Assisted housing providers;

[[Page 2740]]

     The Fair Housing Initiative Program and the Fair Housing 
Assistance Program; and
     Other entities receiving funds directly or indirectly from 
HUD.
    Subrecipients and state grant recipients are likewise covered when 
federal funds are passed to them through the grantee. For example, 
Entitlement Community Development Block Grant, State Community 
Development Block Grant, and HOME Investment Partnership Program 
recipients' subrecipients are covered. 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.
    For example, HUD provides assistance to a state government's 
Department of Community Development, which provides funds to a local 
government to improve a particular public facility. All of the 
operations of the entire state Department of Community Development--not 
just the particular community and/or facility--are covered. 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). Finally, some recipients operate in 
jurisdictions in which English has been declared the official language. 
Nonetheless, these recipients continue to be subject to federal 
nondiscrimination 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?

    Persons 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,'' and may be 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 HUD recipients and should 
be considered when planning language services include, but are not 
limited to:
     Persons who are seeking housing assistance from a public 
housing agency or assisted housing provider or are current tenants in 
such housing;
     Persons seeking assistance from a state or local 
government for home rehabilitation;
     Persons who are attempting to file housing discrimination 
complaints with a local Fair Housing Assistance Program grantee;
     Persons who are seeking supportive services to become 
first-time homebuyers;
     Persons seeking housing-related social services, training, 
or any other assistance from HUD recipients; and
     Parents and family members of the above.

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 persons 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 nonprofit entities.
    After applying the 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. HUD 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 could take to ensure meaningful 
access for LEP persons.

A. The Number or Proportion of LEP Persons Served or Encountered in the 
Eligible Service Area

    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 have 
been approved by HUD as the recipient's jurisdiction or service area. 
However, where, for instance, a public housing project serves a large 
LEP population, the appropriate service area for LEP services is most 
likely the public housing project neighborhood, and not the entire 
population served by the PHA. Where no service area has previously been 
approved, the relevant service area may be that which is approved by 
state or local authorities or designated by the recipient itself, 
provided that these designations do not themselves discriminatorily 
exclude certain populations. Appendix A provides examples to assist in 
determining the relevant service area. When considering the number or 
proportion of LEP persons in a service area, recipients should consider 
LEP parent(s) when their English-proficient or LEP minor children and 
dependents encounter the recipient.
    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 could 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. 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 and who speak or 
understand English less than well. Some of the most commonly spoken

[[Page 2741]]

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 proficiency 
persons. When using demographic data, it is important to focus in on 
the languages spoken by those who are not proficient in English. 
Community agencies, school systems, grassroots and faith-based 
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 if language 
services were provided.

B. 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 the need for 
enhanced language services in that language. 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 
extensive assistance in Spanish. Less frequent contact with different 
language groups may suggest a different and less intensified solution. 
If an LEP individual accesses a program or service on a daily basis, a 
recipient has greater duties than if the same individual's program or 
activity contact is unpredictable or infrequent. But even recipients 
that serve LEP persons on an unpredictable or infrequent basis should 
use this balancing analysis to determine what to do if an LEP 
individual seeks services under the program in question. This plan need 
not be intricate. It may be as simple as being prepared to use one of 
the commercially available telephonic interpretation services to obtain 
immediate interpreter services. In applying this standard, recipients 
should consider whether appropriate outreach to LEP persons could 
increase the frequency of contact with LEP language groups.

C. 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 
persons, the more likely the need for language services. The 
obligations to communicate rights to a person who is being evicted 
differ, for example, from those to provide recreational programming. 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 HUD, another Federal, 
State, or local entity, or the recipient to make a specific activity 
compulsory in order to participate in the program, such as filling out 
particular forms, participating in administrative hearings, or other 
activities, can serve as strong evidence of the program's importance.

D. 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; 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. Recipients 
should carefully explore the most cost-effective means of delivering 
competent and accurate language services before limiting services due 
to resource concerns. Small recipients with limited resources may find 
that entering into a bulk telephonic interpretation service contract 
will prove cost effective. 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 articulate, through documentation or in some other 
reasonable manner, their process for determining that language services 
would be limited based on resources or costs.
    This four-factor analysis necessarily implicates the ``mix'' of LEP 
services the recipient will provide. Recipients have two main ways to 
provide language services: Oral interpretation in person or via 
telephone interpretation service (hereinafter ``interpretation'') and 
through written translation (hereinafter ``translation''). Oral 
interpretation can range from on-site interpreters for critical 
services provided to a high volume of LEP persons 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 public 
housing provider in a largely Hispanic neighborhood may need immediate 
oral interpreters available and should give serious consideration to 
hiring some bilingual staff. (Of course, many have already made such 
arrangements.) By 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 public tour of a recreational facility--in 
which pre-arranged language services for the particular service may not 
be necessary. Regardless of the type of language service provided, 
quality and accuracy of those services can be critical in order to 
avoid serious consequences to the LEP person and to the recipient. 
Recipients have substantial flexibility in determining the appropriate 
mix.

VI. Selecting Language Assistance Services

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

[[Page 2742]]

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 (target 
language). Where interpretation is needed and is a reasonable service 
to provide, recipients should consider some or all of the following 
options for providing competent interpreters in a timely manner:
1. Competence of Interpreters
    When providing oral assistance, recipients are expected to 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. Formal 
certification as an interpreter is not necessary, although it would 
serve as documentation of competency to interpret. When using 
interpreters, recipients are expected to 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; and 
understand and follow confidentiality and impartiality rules to the 
same extent the recipient employee for whom they are interpreting and/
or to the extent their position requires. 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, there may 
be languages that do not have an appropriate direct interpretation of 
some courtroom or legal terms. The interpreter should be so aware and 
be able to provide the most appropriate interpretation. The interpreter 
should make the recipient aware of the issue when it arises and then 
work to develop a consistent and appropriate set of descriptions of 
these terms so that the terms can be used again, when appropriate; and
     Understand and adhere to their role as interpreters 
without deviating into a role as counselor, legal advisor, or other 
roles (particularly in court, administrative hearings, or law 
enforcement contexts).
    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. For the many languages in which no 
formal certification assessments currently exist, other qualifications 
should be considered, such as whether the person has been deemed 
otherwise qualified by a state or federal court, level of experience 
and participation in professional trainings and activities, 
demonstrated knowledge of interpreter ethics, etc. Where such 
proceedings are lengthy, the interpreter will likely need breaks. 
Therefore, team interpreting may be appropriate to ensure accuracy and 
to prevent errors caused by mental fatigue of interpreters and to allow 
for breaks.
    While quality and accuracy of language services is critical, it 
should be evaluated as part of the appropriate mix of LEP services. The 
quality and accuracy of language services in an abused woman's shelter, 
for example, should be extraordinarily high, while the quality and 
accuracy of language services in a recreational program generally need 
not meet such 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 certain activities of HUD recipients in providing 
housing, health, and safety services, and when important legal rights 
are at issue, a recipient would likely not be providing meaningful 
access if it had one bilingual staff person 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 be delayed for a reasonable period.

2. 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 
persons who take public housing or Section 8 applications, with staff 
who are bilingual and competent to communicate directly with LEP 
persons in the LEP persons' own 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 
intake specialist would probably not be able to perform effectively the 
role of an administrative hearing interpreter and intake specialist at 
the same time, even if the intake specialist 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 would turn 
to other options.
3. 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.
4. 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-

[[Page 2743]]

effective option for providing language services to LEP persons from 
those language groups.
5. Using Telephone Interpreter Line
    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.
6. 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 be a cost-effective way of 
providing supplemental language assistance 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.
7. Use of Family Members or Friends as Interpreters
    Although recipients should not plan to rely on an LEP person's 
family members, friends, or other informal interpreters to provide 
meaningful access to important programs and activities, where LEP 
persons so desire, they should be permitted to use, at their own 
expense, an interpreter of their own choosing (whether a professional 
interpreter, family member, friend) in place of or as a supplement to 
the free language services expressly offered by the recipient. LEP 
persons may feel more comfortable when a trusted family member or 
friend acts as an interpreter. In addition, in exigent circumstances 
that are not reasonably foreseeable, temporary use of interpreters not 
provided by the recipient may be necessary. However, with proper 
planning and implementation, recipients should be able to avoid most 
such situations.
    Recipients should take special care to ensure that family, legal 
guardians, caretakers, and other informal interpreters are appropriate 
in light of the circumstances and subject matter of the program, 
service, or activity, including protection of the recipient's own 
administrative or enforcement interest in accurate interpretation. In 
many circumstances, family members (especially children) or friends are 
not competent to provide quality and accurate interpretations. 
Confidentiality, privacy, or conflict-of-interest issues may also 
arise. LEP persons 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. For example, special circumstances may raise additional 
serious concerns regarding the voluntary nature, conflicts of interest, 
and privacy issues surrounding the use of family members and friends as 
interpreters, particularly where an important right, benefit, service, 
disciplinary concern, or access to personal or law enforcement 
information is at stake. In addition to ensuring competency and 
accuracy of the interpretation, recipients should take these special 
circumstances into account when determining whether a beneficiary makes 
a knowing and voluntary choice to use another family member or friend 
as an interpreter. Furthermore, 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 
perpetrator in a domestic violence or other criminal matter. For these 
reasons, when oral language services are necessary, recipients would 
generally offer competent interpreter services free of cost to the LEP 
person. For HUD-recipient programs and activities, this is particularly 
true in a courtroom or administrative hearing or in situations in which 
health, safety, or access to important housing benefits and services 
are at stake; or when credibility and accuracy are important to protect 
an individual's rights and access to important services.
    An example of such a case is when a property manager/or PHA 
security personnel or local police respond to a domestic disturbance. 
In such a case, use of family members or neighbors to interpret for the 
alleged victim, 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 public tour of a community recreational facility built with 
CDBG funds. There, the importance and nature of the activity may be 
relatively low and unlikely to implicate issues of confidentiality, 
conflict of interest, or the need for accuracy. In addition, the 
resources needed and costs of providing language services may be high. 
In such a setting, an LEP person's use of family, friends, or others 
may be appropriate.
    If the LEP person chooses to provide his or her own interpreter, a 
recipient should consider whether a record of that choice and of the 
recipient's offer of assistance is appropriate. Where precise, 
complete, and accurate interpretations or translations of information 
and/or testimony are critical for legal reasons, or where the 
competency of the LEP person's interpreter is not established, a 
recipient might decide to provide its own, independent interpreter, 
even if an LEP person wants to use his or her own interpreter as well. 
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. Extra 
caution should be exercised when the LEP person chooses to use a minor. 
The

[[Page 2744]]

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 the recipient could provide a competent interpreter at no cost to 
the LEP person.

B. Written Language Services (Translation)

    Translation is the replacement of a written text from one language 
(source language) into an equivalent written text in the target 
language. It should be kept in mind that because many LEP persons may 
not be able to read their native languages, back-up availability of 
oral interpretation is always advantageous.
1. What Documents Should be Translated?
    After applying the four-factor analysis, a recipient may determine 
that an effective LAP for its particular program or activity includes 
the translation of vital, or generic widely used written materials into 
the language of each frequently encountered LEP group eligible to be 
served and/or likely to be affected by the recipient's program. Such 
written materials could include, for example:
     Consent and complaint forms;
     Intake forms with the potential for important 
consequences;
     Written notices of rights, denial, loss, or decreases in 
benefits or services, and other hearings;
     Notices of eviction;
     Notices advising LEP persons of free language assistance;
     Notices of public hearings, especially those that meet 
Community Planning and Development's citizen participation 
requirements;
     Leases and tenant rules; and/or
     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 recreational activities 
would not generally be considered vital documents, relative to 
applications for housing. 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 such as 
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 persons meaningful access. Thus, where a recipient 
is engaged in community outreach activities in furtherance of its 
activities, it would regularly assess the needs of the populations 
frequently encountered or affected by the program or activity to 
determine whether certain critical outreach materials should be 
translated. Community organizations may be helpful in determining what 
outreach materials may be most helpful to translate. In addition, the 
recipient should consider whether translations of outreach material may 
be made more effective when done in tandem with other outreach methods, 
including utilizing the ethnic media, schools, grassroots and faith-
based organizations, 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.
2. Into What Languages Should Documents be Translated?
    The languages spoken by the LEP persons 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 those less commonly 
encountered. Many recipients serve communities in large cities or 
across the country. They regularly serve LEP persons speaking dozens 
and sometimes more than 100 different languages. To translate all 
written materials into all 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.
3. 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) below 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 
noncompliance. Rather, the circumstances provide a common starting 
point for recipients to consider the importance of the service, 
benefit, or activity involved; the nature of the information sought; 
and whether 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.
    For example, even if the safe harbors are not used, should written 
translation of a certain document(s) be so burdensome as to defeat the 
legitimate objectives of its program, translation of the written 
materials is not necessary. Other ways of providing meaningful access, 
such as effective oral interpretation of vital documents, might

[[Page 2745]]

be acceptable under such circumstances.
    The following actions will be considered strong evidence of 
compliance with the recipient's written-translation obligations:
    (a) The HUD recipient provides written translations of vital 
documents for each eligible LEP language group that constitutes 5 
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 5 percent trigger in (a), the recipient does not translate 
vital written materials but instead 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 persons through competent oral interpreters 
where oral language services are needed and are reasonable. For 
example, housing facilities should, where appropriate, ensure that 
leases have been explained to LEP residents, at intake meetings, for 
instance, prior to taking adverse action against such persons.
4. Competence of Translators
    As with oral interpreters, all attempts should be made to ensure 
that translators of written documents are competent. Many of the same 
considerations apply. However, the skill of translating is very 
different from the skill of interpreting, and a person who is a 
competent interpreter may or may not be competent to translate.
    Particularly where legal or other vital documents are being 
translated, competence can often be achieved by use of certified 
translators. Certification or accreditation may not always be possible 
or necessary. 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. 
Having a second, independent translator ``check'' the work of the 
primary translator can often ensure competence. 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.''
    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. For instance, there may be languages that 
do not have an appropriate direct translation of some English language 
terms. In such cases, the translator should be able to provide an 
appropriate alternative. 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. 
Community organizations may be able to help consider whether a document 
is written at an appropriate level for the audience. Likewise, 
consistency in the words and phrases used to translate terms of art, 
legal, or other technical concepts will help avoid confusion by LEP 
persons and may reduce costs.
    While quality and accuracy of translation services is critical, 
they are part of the appropriate mix of LEP services. For instance, 
documents that are simple and have no legal or other consequence for 
LEP persons who rely on them may require translators that are less 
skilled than important documents with legal or other information upon 
which reliance has important consequences (including, for example, 
information or documents of HUD recipients regarding safety issues and 
certain legal rights or programmatic or other obligations). 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 an Effective LAP

    After completing the four-factor analysis and deciding what 
language assistance services are appropriate, a recipient would develop 
an implementation plan to address the identified needs of the LEP 
populations they serve. Recipients have flexibility in developing this 
plan. The development and maintenance of a periodically updated written 
plan on language assistance for LEP persons, or a LAP 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 HUD 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, grassroots and faith-based 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 LAP and are 
typically part of effective implementation plans.

A. 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 they have 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, and ``I 
speak Vietnamese'' in both English and Vietnamese. To reduce costs of 
compliance, the federal

[[Page 2746]]

government has made a set of these cards available on the Internet. The 
Census Bureau ``I speak card'' can be found and downloaded at http://www.usdoj.gov/crt/cor/13166.htm. When records are normally kept of past 
interactions with members of the public, the language of the LEP person 
can be included as part of the record. In addition to helping employees 
identify the language of LEP persons they encounter, this process will 
help in future applications of the first two factors of the four-factor 
analysis. In addition, posting notices in commonly encountered 
languages notifying LEP persons of language assistance will encourage 
them to self-identify.

B. Language Assistance Measures

    An effective Language Assistance Plan (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:
     Types of language services available;
     How staff can obtain those services;
     How to respond to LEP callers;
     How to respond to written communications from LEP persons;
     How to respond to LEP persons who have in-person contact 
with recipient staff; and
     How to ensure competency of interpreters and translation 
services.

C. Training Staff

    Staff should know their obligations to provide meaningful access to 
information and services for LEP persons. An effective LAP would likely 
include training to ensure that:
     Staff knows about LEP policies and procedures; and
     Staff having contact with the public is trained to work 
effectively with in-person and telephone interpreters.
    Recipients may want to include this training as part of the 
orientation for new employees. It is important to ensure that all 
employees in public contact positions (or having contact with those in 
a recipient's custody) 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 Language Action 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.

D. Providing Notice to LEP Persons

    Once an agency has decided, based on the four factors, that it will 
provide language services, it is important for the recipient to let LEP 
persons know that those services are available and that they are free 
of charge. Recipients should provide this notice in a language that LEP 
persons will understand. Examples of notification that recipients 
should consider include:
     Posting signs in common areas, offices, and anywhere 
applications are taken. When language assistance is needed to ensure 
meaningful access to information and services, it is important to 
provide notice in appropriate languages in initial points of contact so 
that LEP persons can learn how to access those language services. This 
is particularly true in geographic areas with high volumes of LEP 
persons seeking access to the recipient's major programs and 
activities. For instance, signs in offices where applications are taken 
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. 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;
     Stating in outreach documents that language services are 
available from the recipient. Announcements could be in, for instance, 
brochures, booklets, and in outreach and recruitment information. These 
statements should be translated into the most common languages and 
could be ``tagged'' onto the front of common documents;
     Working with grassroots and faith-based community 
organizations and other stakeholders to inform LEP individuals of the 
recipients' services, including the availability of language assistance 
services;
     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;
     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; and
     Presentations and/or notices at schools and grassroots and 
faith-based organizations.

E. 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 persons, 
and recipients 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 members of the community that the plan serves.
    In their reviews, recipients may want to consider assessing changes 
in:
     Current LEP populations in the housing jurisdiction 
geographic area or population affected or encountered;
     Frequency of encounters with LEP language groups;
     The nature and importance of activities to LEP persons;
     The availability of resources, including technological 
advances and sources of additional resources, and the costs imposed;
     Whether existing assistance is meeting the needs of LEP 
persons;
     Whether staff knows and understands the LAP and how to 
implement it; and
     Whether identified sources for assistance are still 
available and viable.
    In addition to these elements, effective plans set clear goals, 
make management accountable, and provide 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 HUD 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 HUD will investigate whenever 
it receives a complaint, report, or other information that alleges or 
indicates possible noncompliance with Title VI or its regulations. The 
Office of Fair Housing and Equal Opportunity (FHEO) is responsible for 
conducting the investigation to ensure that federal program recipients 
are in compliance with civil rights-related program

[[Page 2747]]

requirements. If the investigation results in a finding of compliance, 
HUD will inform the recipient in writing of this determination, 
including the basis for the determination. HUD uses voluntary methods 
to resolve most complaints. However, if a case is fully investigated 
and results in a finding of noncompliance, HUD must inform the 
recipient of the noncompliance through a Letter of Findings that sets 
out the areas of noncompliance and the steps that should be taken to 
correct the noncompliance. HUD must attempt to secure voluntary 
compliance through informal means. If the matter cannot be resolved 
informally, HUD must secure compliance through the termination of 
federal assistance after the HUD 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. At all stages of an investigation, HUD 
engages in voluntary compliance efforts and provides technical 
assistance to recipients. During such efforts, HUD 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, 
HUD'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 persons, HUD acknowledges that the implementation 
of a comprehensive system to serve LEP persons 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, 
HUD 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, HUD expects its recipients to ensure that the provision of 
appropriate assistance for significant LEP populations or with respect 
to activities having a significant impact on the housing, health, 
safety, legal rights, or livelihood of beneficiaries is addressed 
first. Recipients are encouraged to document their efforts to provide 
LEP persons with meaningful access to federally assisted programs and 
activities.

IX. Application to Specific Types of Recipients

    Appendix A of this Guidance provides examples of how the meaningful 
access requirement of the Title VI regulations applies to HUD funded 
recipients. It further explains how recipients can apply the four 
factors to a range of situations, to determine their responsibility for 
providing language services in each of these situations. This Guidance 
helps recipients identify the population they should consider when 
determining the extent and types of services to provide. For instance, 
it gives examples on how to apply this guidance in situations like:
     Holding public meetings on Consolidated Plans for 
Community Planning and Development Programs [Community Development 
Block Grants (CDBG), HOME Investment Partnership Program (HOME), 
Housing Opportunities for Persons with AIDS (HOPWA), and Emergency 
Shelter Grants (ESG)];
     Interviewing victims of housing discrimination;
     Helping applicants to apply for public housing units;
     Explaining lease provisions; and
     Providing affirmative marketing housing counseling 
services.

X. Environmental Impact

    This notice sets out nondiscrimination standards. Accordingly, 
under 24 CFR 50.19 (c) (3), this notice is categorically excluded from 
environmental review under the National Environmental Policy Act (42 
U.S.C. 4321).

    Dated: August 16, 2006.
Kim Kendrick,
Assistant Secretary for Fair Housing, and Equal Opportunity.

    Editorial Note: This document was received at the Office of the 
Federal Register on January 16, 2007.

Appendix A:--Application of Limited English Proficiency (LEP) Guidance 
for JUH Recipients

Introduction

    A wide range of entities receives federal financial assistance 
through HUD. HUD provides assistance to the following types of 
recipients, among others: Assisted housing providers; public housing 
agencies (PHAs); Indian tribes, state and local governments; 
nonprofit organizations, including housing counseling agencies, 
grassroots community-based organizations, and faith-based 
organizations; state and local fair housing agencies; and providers 
of a variety of services. Most organizations can check their status 
as to whether or not they are covered by reviewing the ``List of 
Federally Assisted Programs,'' published in the Federal Register on 
November 24, 2004 (69 FR 68700). This list may not be all-inclusive 
or reflect newer programs. Subrecipients are also covered. All HUD-
funded recipients, except for Indian tribes, are required to certify 
to nondiscrimination and affirmatively furthering fair housing, 
either through the Office of Community Planning and Development's 
(CPD) Consolidated Plan [24 CFR 91.225 (a)(1) and (b)(6), 
92.325(a)(1), and 91.425(a)(i)]; the public housing agency plans [24 
CFR 903.7(o)] or the certifications required in the competitive 
programs funded through the Super Notice of Funding Availability 
(SuperNOFA). HUD publishes the SuperNOFA on an annual basis. The 
nondiscrimination and the affirmatively furthering fair housing 
requirements are found in the General Section of the SuperNOFA. The 
Web site link to the SuperNOFA is: http://www.hud.gov/library/bookshelf18/supernofa/nofa05/gensec.pdf. This appendix does not 
change current civil rights-related program requirements contained 
in HUD regulations.
    Appendix A provides examples of how HUD recipients might apply 
the four-factor analysis described in the general Guidance. The 
Guidance and examples in Appendix A are not meant to be exhaustive 
and may not apply in some situations. CPD's citizen participation 
plan requirement, in particular, specifically instructs 
jurisdictions that receive funds through the Consolidated Plan 
process to take appropriate actions to encourage the participation 
of ``* * * non-English speaking persons * * *'' [24 CFR 
91.105(a)(2)(ii), 91.115(a)(2), 24 CFR 91.105(a)(2)(ii), and 
91.115(a)(2)]. Such recipients may therefore have processes in place 
to address the needs of their LEP beneficiaries that already take 
into consideration the four-factor analysis and meet the Title VI 
and Title VI regulatory requirements described in this Guidance.
    This Guidance does not supplant any constitutional, statutory, 
and/or regulatory provisions that may require LEP services. Rather, 
this Guidance clarifies the Title VI and Title VI regulatory 
obligation to address, in appropriate circumstances and in a 
reasonable manner, the language assistance needs of LEP persons. The 
Guidance does not address those required by the Constitution or 
statutes and regulations other than Title VI and the Title VI 
regulations.
    Tribes and tribally designated housing entities (TDHEs) are 
authorized to use federal housing assistance made available under 
the Native American Housing Assistance and Self-Determination Act of 
1996 (25 U.S.C. 4101-4212) (NAHASDA) for low-income housing programs 
or activities for the specific benefit of tribal members and/or 
other Native Americans. Programs or activities funded in

[[Page 2748]]

whole or in part with federal assistance and in compliance with 
NAHASDA are exempt from Title VI of the Civil Rights Act of 1964 and 
Title VIII of the Civil Rights Act of 1968. Although Title VI may 
not apply to housing programs undertaken by these entities under 
NAHASDA, recipients of NAHASDA funds are encouraged to use this 
Guidance as a technical assistance tool in determining whether and 
to what degree language assistance may be appropriate to ensure 
meaningful access by otherwise eligible low-income Native Americans.
    Members of the public are most likely to come into contact with 
recipients of HUD funds when they need housing and/or housing-
related services or when the recipients conduct education and 
community outreach activities. The common thread running through 
contacts between the public and recipients of HUD funds is the 
exchange of information. Recipients of HUD assistance, depending on 
circumstances, have an obligation to provide appropriate types and 
levels of LEP services to LEP persons to ensure that they have 
meaningful access to, and choice of, housing and other HUD-funded 
programs. Language barriers can, for instance, prevent persons from 
learning of housing opportunities or applying for and receiving such 
opportunities; learning of environmental or safety problems in their 
communities and of the means available for dealing with such 
problems; and/or effectively reporting housing discrimination to the 
local fair housing agency or HUD, thus hindering investigations of 
these allegations.
    Many recipients already provide language services in a wide 
variety of circumstances to obtain information effectively and help 
applicants obtain suitable housing and/or support services. For 
example, PHAs may have leases available in languages other than 
English and has interpreters available to inform LEP persons of 
their rights and responsibilities. In areas where significant LEP 
populations reside, PHAs may have forms and notices in languages 
other than English or they may employ bilingual intake personnel, 
housing counselors, and support staff. Such recipients may, 
therefore have processes in place to address the needs of their LEP 
beneficiaries that already take into consideration the four-factor 
analysis and meet the Title VI and regulatory Title VI requirements 
described in this Guidance. These experiences can form a strong 
basis for applying the four-factor analysis and complying with the 
Title VI regulations.

General Principles

    The touchstone of the four-factor analysis is reasonableness 
based upon: (a) The specific needs and capabilities of the LEP 
population among the beneficiaries of HUD programs (tenants, 
applicants, community residents, complainants, etc.); (b) the 
program purposes and capabilities of the HUD-funded recipients 
providing the services to the LEP population; and (c) local housing, 
demographics, and other community conditions and needs. Accordingly, 
the analysis cannot provide a single uniform answer on how service 
to LEP persons must be provided in all programs or activities in all 
situations or whether such service need be provided at all. Each HUD 
recipient's evaluation of the need for, and level of LEP services 
must be highly individualized for each process in its services.
    Before giving specific program examples, several general points 
should assist the wide variety of recipients of HUD funds in 
applying this analysis.

Factors (1) and (2): Target Audiences

    In evaluating the target audience, the recipient should take 
into account the number and proportion of LEP persons served or 
eligible to be served in the target population, as well as the 
frequency with which this target audience will or should be served.
    Factor (1): For most recipients, the target audience is defined 
in geographic rather than programmatic terms. In many cases, even if 
the overall number or proportion of LEP persons in the local area is 
low, the number of contacts with LEP persons may be high.
    Recipients of HUD funds are required by existing regulations to 
outreach, educate, and affirmatively market the availability of 
housing and housing-related services to eligible persons in the 
geographic area that are least likely to apply for and/or receive 
the benefits of the program without such outreach and education 
activities and/or affirmative marketing [(24 CFR 200.625; 24 CFR 
92.351; and 24 CFR 903.2(d)(1) and (2)]. In many cases, those least 
likely to apply for a benefit are LEP persons. In addition, in some 
cases where there are few LEP persons in the immediate geographic 
area, outreach, education, and affirmative marketing may require 
marketing to residents of adjoining areas, communities, or 
neighborhoods [(24 CFR 200.625; 24 CFR 92.351; 903.2(d)(1) and (2)].
    The programs of many recipients require public meetings and 
input (24 CFR 91, subpart B; 24 CFR 903.13(a); 24 CFR part 964). 
Even within the large geographic area covered by a city government, 
certain target areas may have concentrations of LEP persons. These 
persons may be those who might be most affected by the issue being 
discussed. In addition, some programs are specifically targeted to 
reach a particular audience (e.g., persons with HIV/AIDS, elderly, 
residents of high crime areas, persons with disabilities, and 
minority communities). In some communities, these populations may 
disproportionately be LEP persons.
    Factor (2): Frequency of contact should be considered in light 
of the specific program or the geographic area being served. Some 
education programs or complaint processing may only require a single 
or limited interaction with each LEP individual served. In contrast, 
housing, counseling, and housing supportive services programs 
require ongoing communication. In the former case, the type and 
extent of LEP services may be of shorter duration, even for a 
greater number of LEP persons, than in the latter case. Therefore, 
decisions must be made accordingly.

Factor (3): Importance of Service/Information/Program/Activity

    Given the critical role housing plays in maintaining quality of 
life, housing and complementary housing services rank high on the 
critical/non-critical continuum. However, this does not mean that 
all services and activities provided by recipients of HUD funds must 
be equally accessible in languages other than English. For instance, 
while clearly important to the quality of life in the community, 
certain recreational programs provided by a HUD-funded recipient may 
not require the same level of interpretive services as does the 
recipient's underlying housing service. Nevertheless, the need for 
language services with respect to these programs should be 
considered in applying the four-factor analysis. The recipient 
should always consider the basic activity for which it was funded as 
being of high importance.

Factor (4): Costs v. Resources and Benefits

    The final factor that must be taken into account is the cost of 
providing various services balanced against the resources available 
to the HUD-funded recipient providing the service.
    Type of Program: There are some programs for which translation 
and interpretation are such an integral part of the funded program 
that services would be provided in some way to any client that 
requires them. In important programs or activities (e.g., tenant 
selection and assignment, homeownership counseling, fair housing 
complaint intake, conflict resolution between tenants and landlords, 
etc.) that require one-on-one contact with clients, oral and written 
translations would be provided consistent with the four-factor 
analysis used earlier. Recipients could have competent bi-or 
multilingual employees, community translators, or interpreters to 
communicate with LEP persons in languages prevalent in the 
community. In some instances, a recipient may have to contract or 
negotiate with other agencies for language services for LEP persons.
    Outreach: Affirmative marketing activities, as described above, 
require written materials in other languages, at a minimum [24 CFR 
200.625; 24 CFR 92.351; and 24 CFR 903.2 (d)(1) and (2)]. As with 
counseling, affirmative marketing in large LEP communities could be 
fruitless without translations of outreach materials. Preferably, 
outreach workers would speak the language of the people to whom they 
are marketing.
    Size of Program: A major issue for deciding on the extent of 
translation/interpretation/bilingual services is the size of the 
program. A large PHA may be expected to have multilingual employees 
representing the languages spoken by LEP persons who may reside in 
the communities. These employees may be involved in all activities, 
including affirmative marketing, taking and verifying applications, 
counseling, explaining leases, holding and/or interpreting at tenant 
meetings, and ongoing tenant contact, as well as translating 
documents into applicable languages. Similarly, a funded recipient 
receiving millions of dollars in CDBG Program funds may be expected 
to provide translation/interpretation services in major local 
languages and have bilingual staff in those languages. Recipients 
with limited resources (e.g., PHAs with a small number of units, or 
small nonprofit organizations) would not be expected to provide the 
same

[[Page 2749]]

level and comprehensiveness of services to the LEP population, but 
should consider the reasonable steps, under the four-factor 
analysis, they should take in order to provide meaningful access.
    Outreach v. Size of the Program: When the same recipient 
conducts a range of activities, even within the same community, 
translation needs for each activity may differ. The translation 
needs may also be mandated according to the number of LEP persons 
being served. For instance, a housing provider doing outreach and 
marketing to an eligible population may have to provide written 
translations of materials because the target population itself is 
large. Within that target population, there could be an LEP 
population that exceeds 1,000 persons for one language, or a 
specific language group that exceeds 5 percent of the population. 
Outreach materials to that LEP population should be provided in 
translation to that language. Written translations may not be 
necessary if, within a housing development, there is no LEP 
population that meets the ``safe harbor'' threshold for written 
translation. In these situations, housing providers need only 
arrange for oral interpretation.
    Relevance of Activity to the Program: A program with monthly 
information sessions in a community with many LEP persons speaking 
the same language should consider employing a bilingual employee who 
can hold these sessions in the LEP language. Alternatively, if a 
community's major LEP language does not have many applicants to the 
program, having an interpreter at sessions only when needed (by, for 
instance, announcing in major languages in any public notice of the 
meeting that anyone in need of an interpreter should call a certain 
number before the meeting to request one, and ensuring that someone 
at that number can communicate with the person) may be sufficient.
    Availability/Costs of Services: A HUD recipient with limited 
resources and located in a community with very few LEP persons 
speaking any one language should target interpretation and 
translation to the most important activities. The recipients may 
decide, as appropriate, to provide those services through agreements 
with competent translators and interpreters in the community-based 
organizations, or through telephonic interpretation services. Costs 
may also be reduced if national organizations pool resources to 
contract with oral interpretation/written translation services.
    Services Provided: HUD recipients have a variety of options for 
providing language services. Under certain circumstances, when 
interpreters are needed and recipients should provide competent 
interpreter services free of cost to the LEP person, LEP persons 
should be advised that they may choose either to use a competent 
interpreter provided by the recipient or to secure the assistance of 
an interpreter of the LEP person's own choosing, at his or her own 
expense. If the LEP person decides to provide his/her own 
interpreter, the LEP person's election of this choice would be 
documented. The Guidance doesn't preclude the use of family members 
or friends as oral interpreters. However, HUD recommends that the 
recipient use caution when family members or friends are used. While 
an LEP person may prefer bilingual family members, friends, or other 
persons with whom they are comfortable, there are many situations 
where recipient-supplied interpretative services may be better. 
Family and friends may not be available when and where they are 
needed, or may not have the ability to interpret program-specific 
technical information. Alternatively, an individual may feel 
uncomfortable revealing or describing sensitive, confidential, or 
potentially embarrassing medical, family, or financial information 
to a family member, friend, or member of the local community.
    Similarly, there may be situations where a HUD-funded 
recipient's own interests justify the provision of an interpreter 
regardless of whether the LEP individual also provides his/her own 
interpreter. For example, where precise, complete, and accurate 
translations of information are critical for lease enforcement, a 
recipient might decide to provide its own, independent interpreter, 
even if several LEP persons use their own interpreter(s) as well. In 
group meetings dealing with vital issues, such as explanations of 
pending displacement, having the recipient provide interpretation 
services among multiple interpreters may be preferable, even if the 
LEP person brings his/her own interpreter as well.
    In emergency situations that are not reasonably foreseeable, the 
recipient may have to temporarily rely on non-recipient-provided 
language services. Reliance on children is especially discouraged 
unless there is an extreme emergency and no competent interpreters 
are available.
    While all language services need to be competent, the greater 
the potential consequences, the greater the need to monitor 
interpretation services for quality. For instance, it is important 
that interpreters of legal concepts be highly competent to translate 
legal and lease enforcement concepts, as well as be extremely 
accurate in their interpretation when discussing relocation and 
displacement issues. It may be sufficient, however, for a desk clerk 
who is fully bilingual but not skilled at interpreting to help an 
LEP person fill out an application in the language shared by the LEP 
person and bilingual person.

Applying the Four-Factor Analysis

    While all aspects of a recipient's programs and activities are 
important, the four-factor analysis requires some prioritizing so 
that language services are targeted where most needed because of the 
nature and importance of the particular activity involved. In 
addition, because of the ``reasonableness'' standard, and frequency 
of contact and resources/costs factors, the obligation to provide 
language services increases where the importance of the programs and 
activities is greater.
    HUD has translated generic documents into some of the most 
frequently encountered languages (i.e., Spanish, and depending on 
circumstances, Russian, Chinese, Korean, Vietnamese, and Arabic). 
Recipients should not interpret this to mean that these translations 
are the total universe of documents and languages requiring 
translations. HUD translations are intended to help recipients. 
However, the recipient-responsibility is determined by the four-
factor analysis and the documents that are vital to their programs. 
Since most documents are not generic and there are so many languages 
spoken throughout the country, HUD cannot provide all applicable 
translations.
    ``Promising Practices.'' This section provides hypothetical 
examples of ``promising practices'' in which recipients may engage. 
Grantees or funded recipients are responsible for ensuring 
meaningful access to all portions of their program or activity, not 
just those portions to which HUD funds are targeted. So long as the 
language services are accurate, timely, and appropriate in the 
manner outlined in this guidance, the types of promising practices 
summarized below can assist recipients in meeting the meaningful 
access requirements of Title VI and the Title VI regulations.

Office of Fair Housing and Equal Opportunity

    1. The Fair Housing Initiatives Program (FHIP): FHIP assists 
fair housing activities that promote compliance with the Fair 
Housing Act or with substantially equivalent fair housing laws 
administered by state and local government agencies under the Fair 
Housing Assistance Program. FHIP awards funds competitively and 
these funds enable recipients to carry out activities to educate and 
inform the public and housing providers of their fair housing rights 
and responsibilities.
    For example, a community organization in a large metropolitan 
area has received FHIP funds to develop an education curriculum to 
assist newly arrived immigrants. Data showed that non-English 
speaking persons were having difficulty in applying and securing 
housing in that geographic area. The organization has identified a 
large Hispanic clientele in the area who need this service, and has 
a well-developed program for this LEP population. However, the 
community's population was changing. The recipient found that there 
was also a large community of recent immigrants from Cambodia who 
are also in need of this service. To address this need, the FHIP 
partnered with Asian Action Network, a community-based social 
service agency, to translate materials and to present free seminars 
at the local public library. In addition, if needed, the Asian 
Action Network has on its staff a Cambodian-speaking counselor who 
is able to provide interpretation services.
    2. The Fair Housing Assistance Program (FHAP): FHAP provides 
funds to state and local agencies that administer fair housing laws 
that are substantially equivalent to the federal Fair Housing Act.
    A local FHAP is located in a small metropolitan area that has a 
population that is 3 percent Korean-speaking, 25 percent Spanish-
speaking and 72 percent English-speaking. One of the FHAP agency's 
primary responsibilities is to process fair housing discrimination 
complaints. The FHAP Office has many Hispanic complainants who are 
LEP and Spanish-speaking; therefore, it has hired a Hispanic intake 
clerk who is

[[Page 2750]]

proficient in Spanish and English. The Fair Housing Poster and the 
complaint form have been translated into Spanish. The FHAP Office 
has a contract with a nonprofit Hispanic organization for 
interpreters on an as-needed basis, for its education and outreach 
activities to the Hispanic community. Some of the FHAP's 
organizations are small and have limited resources. In competing for 
the available resources, the FHAP chooses not to translate the 
material into the language of the Korean population this year. 
However, it has plans to translate material into Korean in coming 
years to address the accessibility needs of the LEP population.

Office of Public and Indian Housing

    1. HOPE VI: The HOPE VI Revitalization of Distressed Public 
Housing Program provides revitalization and demolition-only grants 
on a competitive basis for eligible PHAs that operate public housing 
units. During the HOPE VI lifecycle, PHAs are required to 
communicate with all tenants, including LEP tenants, through 
informational meetings that describe both the proposed project and 
the rights of the tenants during every stage of the application and 
implementation process. All residents need to be educated about both 
the HOPE VI project and their rights to be relocated into decent, 
safe, and sanitary housing and how they can return to the new 
project once it is completed.
    A housing agency is planning to demolish a 400-unit public 
housing project and construct a 375-unit HOPE VI mixed-finance 
development and other amenities on the site. The 400-unit building 
is still occupied by a tenant population, of which 55 percent are 
Spanish-speaking LEP families. For a number of years, the PHA has 
had bilingual employees in its occupancy office, as well as copies 
of leases and other written documents translated into Spanish. The 
PHA would now need to translate public notices and other documents 
into Spanish.
    2. Public Housing (leases and other vital documents): There are 
approximately 3,400 PHAs in the United States that provide a 
majority of the housing to very low income and low-income families. 
A PHA in a large metropolitan area has a large number of Hispanic, 
Chinese, and Vietnamese LEP tenants such that they would translate 
vital documents into all three languages under the ``safe harbor.'' 
All tenants must sign a lease before they can live in public 
housing. The lease clearly states the rules and requirements that 
the PHA and tenants must follow. Therefore, the PHA should have its 
lease and rental notices translated into Spanish, Chinese, and 
Vietnamese. The documents should be clearly labeled ``for 
information purposes only.'' PHAs should have a procedure to access 
interpreters for these languages if oral discussions of the lease 
are necessary.
    3. Public Housing (outreach for waiting list): The same PHA is 
preparing to re-open its waiting list for its Low-Income Public 
Housing (LIPH) after having it closed for over a year. The PHA must 
affirmatively market the availability of its units to all eligible 
families living in its jurisdiction. It should place a public 
service announcement in English, Spanish, Chinese, and Vietnamese in 
the local general circulation Spanish, Chinese, and Vietnamese 
newspapers and/or radio and TV stations.

Office of Community Planning and Development

    1. Consolidated Plan: Consolidated planning means developing a 
Consolidated Plan based upon public participation and input. When 
planning the required public hearings, jurisdictions must identify 
how the needs of LEP residents will be met, if a significant number 
of LEP residents can be reasonably expected to participate (24 CFR 
91, Subpart B, ``Citizen Participation and Consultation''). In 
addition, there are activities surrounding citizen participation 
where the needs of the LEP population are expected to be met, such 
as: (1) Translation of the notification of the public hearings; and 
(2) translation of draft and final action, and consolidated plans, 
and dissemination of those documents to individuals and the 
appropriate organization(s) in the LEP community.
    2. Housing Opportunities for Persons with AIDS (HOPWA): A major 
city has been providing permanent supportive housing to persons 
living with AIDS, and such assistance has been an integral part of 
its Consolidated Plan. However, it recently learned from a national 
study that 20 percent of its 2,000 HIV-infected persons are LEP 
persons. The city previously had not contacted these people about 
their needs. In formulating its Consolidated Plan, the city's 
Community Development Department contacted both the Department of 
Health and the city's leading AIDS-related housing provider for 
assistance in reaching out to this population. The city offered to 
provide funding for housing information services through its HOPWA 
formula grant to fund bilingual interpreters and health outreach 
workers who would contact the LEP persons living with HIV to assist 
eligible persons to locate, acquire, and maintain housing. In 
addition, as part of fulfilling the citizen participation 
requirements under the Consolidated Plan provisions, the city 
offered to conduct a multilingual meeting in which local government 
officials and local AIDS housing and service providers would 
participate and inform the public at large of the resources 
available to assist those living with HIV/AIDS.
    3. HOME Investment Partnership Program (HOME): In general, under 
the HOME Program, HUD allocates funds by formula among eligible 
state and local governments to strengthen public-private 
partnerships and to expand the supply of decent, safe, sanitary, and 
affordable housing. Families, including LEP families, may obtain 
homeownership and rental housing opportunities from participating 
jurisdictions (PJs). Under the program requirements, PJs are 
required to implement affirmative marketing strategies, under which 
they identify groups within the eligible population that are least 
likely to apply and to conduct special outreach efforts through 
advertising in local media, including media targeted at LEP citizens 
(24 CFR 92.351).
    A small HOME participating jurisdiction is using its HOME 
formula-based funds to implement a tenant-based rental assistance 
(TBRA) program. Under TBRA, the assisted tenant may move from a 
dwelling unit, but retains the right to continued assistance. The 
rental assistance also includes the security deposit. The HOME PJ, 
as part of its affirmative marketing strategy, has submitted 
advertising to the local Spanish language newspapers and radio 
station that serve the community's small but growing Hispanic 
population. Since the costs of implementing the affirmative 
marketing strategy are eligible costs under the program regulations, 
the PJ is increasing its budget to train occupancy staff to address 
issues faced by LEP applicants and to hire a bilingual staff member.

Office of Housing

    1. Single-Family Housing Counseling Program: HUD provides funds 
to housing counseling agencies that assist persons and families in 
specific geographic areas to enable them to buy homes and to keep 
homes already purchased. This requires one-on-one and group 
counseling on home-selection skills, understanding mortgages, 
understanding legal ramifications of various documents, establishing 
a budget, housekeeping and maintenance skills, understanding fair 
housing rights, etc.
    In a majority-Hispanic community, La Casa has been the only HUD-
funded counseling agency, and has been providing these services for 
many years. It has bilingual staff to serve the largely Hispanic 
population. Frequently, clients from a neighboring, low-income and 
primarily African-American community also use its services, since La 
Casa is well known in the area. However, over the past few years, 
many low-income LEP Iranian-Americans have been moving into the 
neighboring community, so that they now constitute almost 5 percent 
of the population. A housing counseling agency is required to 
provide one-on-one counseling services as the nature of its program. 
It is also required to outreach to those who are least likely to 
apply for its services. As a relatively small Agency, La Casa 
employs at least one person or has regular access to a person who 
can speak Farsi and interpret English to Farsi. This person should 
contact the Iranian communities and work through the local agencies 
to affirmatively market La Casa's program. La Casa should arrange to 
get key materials translated to Farsi and provide counseling and 
interpretation services, as needed.
    2. Single-Family Property Disposition Program: When developers 
or organizations buy HUD-held housing to renovate and resell, they 
are required to affirmatively market the properties. Such developers 
or organizations are required to provide language assistance to 
attract eligible LEP persons who are least likely to apply as does 
any other housing provider.
    3. Supportive Housing for the Elderly and Persons with 
Disabilities: The Section 202 Supportive Housing for the Elderly 
Program funds the construction of multifamily projects that serve 
elderly persons. Project sponsors are required to affirmatively 
market their services and housing opportunities to those segments of 
the elderly population that are identified as least likely to apply 
for the housing without special outreach. Even more

[[Page 2751]]

importantly, many LEP elderly may require care from bilingual 
medical or support services staff, and recipients may devote 
considerable financial and other resources to provide such 
assistance.
    The sponsor of a Section 202 Supportive Housing for the Elderly 
Project identifies in its Affirmative Fair Housing Marketing Plan 
the city's large numbers of East and South Asian immigrants as least 
likely to apply for the new housing without special outreach. After 
examining Census and other data and consulting with the city's 
Office of Immigrant Affairs, the sponsor learns that more than 1,000 
of the city's 5,000 South and East Asian families have at least one 
elderly relative that may be eligible for the new units. The sponsor 
hires translators fluent in Hindi, Urdu, Dari, Vietnamese, and 
Chinese to translate written materials and advertising for the local 
press in those languages. The recipient also partners with 
community-based organizations that serve the city's East and South 
Asian immigrants to arrange for interpreters at meetings.
    4. Assisted Housing: An assisted housing development is located 
in a city of 20,000 people, about 2,000 of whom are recent 
immigrants from Korea. Few of the 2,000 have applied for assisted 
housing. Only eight of the development's 200 residents and no 
applicants among the 20 on the waiting list are LEP speakers of 
Korean. Koreans constitute about 10 percent of the eligible 
population of the community but only 4 percent of the development's 
residents.
    In its Affirmative Fair Housing Marketing Plan for the 
development, the management agent specified Asian (Korean) as the 
population least likely to apply for housing and to whom it would 
outreach. Under the safe-harbor guidelines, the housing provider 
should outreach to the Korean community using written Korean 
language materials. However, even after extensive outreach, only one 
Korean family applied for the waiting list, although during that 
time the total waiting list increased by eight families to 38. Even 
after extensive outreach, the occupancy of the project is 4 percent, 
and its waiting list is less than 3 percent, LEP Korean.
    Therefore, under safe-harbor guidelines, no translation of 
occupancy documents into Korean is necessary. However, the housing 
provider should be prepared to provide for oral interpretation, when 
needed. In addition, outreach to the eligible Korean community 
should continue using written Korean language materials.

Appendix B--Questions and Answers

I. Who are limited English proficient (LEP) persons?

    For persons who, as a result of national origin, do not speak 
English as their primary language and who have a limited ability to 
speak, read, write, or understand. For purposes of Title VI and the 
LEP Guidance, persons may be entitled to language assistance with 
respect to a particular service, benefit, or encounter.

II. What is Title VI and how does it relate to providing meaningful 
access to LEP persons?

    Title VI of the Civil Rights Act of 1964 is the federal law that 
protects individuals from discrimination on the basis of their race, 
color, or national origin in programs that receive federal financial 
assistance. In certain situations, failure to ensure that persons 
who are LEP can effectively participate in, or benefit from, 
federally assisted programs may violate Title VI's prohibition 
against national origin discrimination.

III. What do Executive Order (EO) 13166 and the Guidance require?

    EO 13166, signed on August 11, 2000, directs all federal 
agencies, including the Department of Housing and Urban Development 
(HUD), to work to ensure that programs receiving federal financial 
assistance provide meaningful access to LEP persons. Pursuant to EO 
13166, the meaningful access requirement of the Title VI regulations 
and the four-factor analysis set forth in the Department of Justice 
(DOJ) LEP Guidance apply to the programs and activities of federal 
agencies, including HUD. In addition, EO 13166 requires federal 
agencies to issue LEP Guidance to assist their federally assisted 
recipients in providing such meaningful access to their programs. 
This Guidance must be consistent with the DOJ Guidance. Each federal 
agency is required to specifically tailor the general standards 
established in DOJ's Guidance to its federally assisted recipients. 
On December 19, 2003, HUD published such proposed Guidance.

IV. Who must comply with the Title VI LEP obligations?

    All programs and operations of entities that receive financial 
assistance from the federal government, including but not limited to 
state agencies, local agencies and for-profit and non-profit 
entities, must comply with the Title VI requirements. A listing of 
most, but not necessarily all, HUD programs that are federally 
assisted may be found at the ``List of Federally Assisted Programs'' 
published in the Federal Register on November 24, 2004 (69 FR 
68700). Sub-recipients must also comply (i.e., when federal funds 
are passed through a recipient to a sub-recipient). As an example, 
Federal Housing Administration (FHA) insurance is not considered 
federal financial assistance, and participants in that program are 
not required to comply with Title VI's LEP obligations, unless they 
receive federal financial assistance as well. [24 CFR 1.2 (e)].

V. Does a person's citizenship and immigration status determine the 
applicability of the Title VI LEP obligations?

    United States citizenship does not determine whether a person is 
LEP. It is possible for a person who is a United States citizen to 
be LEP. It is also possible for a person who is not a United States 
citizen to be fluent in the English language. Title VI is 
interpreted to apply to citizens, documented non-citizens, and 
undocumented non-citizens. Some HUD programs require recipients to 
document citizenship or eligible immigrant status of beneficiaries; 
other programs do not. Title VI LEP obligations apply to every 
beneficiary who meets the program requirements, regardless of the 
beneficiary's citizenship status.

VI. What is expected of recipients under the Guidance?

    Federally assisted recipients are required to make reasonable 
efforts to provide language assistance to ensure meaningful access 
for LEP persons to the recipient's programs and activities. To do 
this, the recipient should: (1) Conduct the four-factor analysis; 
(2) develop a Language Access Plan (LAP); and (3) provide 
appropriate language assistance.
    The actions that the recipient may be expected to take to meet 
its LEP obligations depend upon the results of the four-factor 
analysis including the services the recipient offers, the community 
the recipient serves, the resources the recipient possesses, and the 
costs of various language service options. All organizations would 
ensure nondiscrimination by taking reasonable steps to ensure 
meaningful access for persons who are LEP. HUD recognizes that some 
projects' budgets and resources are constrained by contracts and 
agreements with HUD. These constraints may impose a material burden 
upon the projects. Where a HUD recipient can demonstrate such a 
material burden, HUD views this as a critical item in the 
consideration of costs in the four-factor analysis. However, 
refusing to serve LEP persons or not adequately serving or delaying 
services to LEP persons would violate Title VI. The agency may, for 
example, have a contract with another organization to supply an 
interpreter when needed; use a telephone service line interpreter; 
or, if it would not impose an undue burden, or delay or deny 
meaningful access to the client, the agency may seek the assistance 
of another agency in the same community with bilingual staff to help 
provide oral interpretation service.

VII. What is the four-factor analysis?

    Recipients are required to take reasonable steps to ensure 
meaningful access to LEP persons. This ``reasonableness'' standard 
is intended to be flexible and fact-dependent. It is also intended 
to balance the need to ensure meaningful access by LEP persons to 
critical services while not imposing undue financial burdens on 
small businesses, small local governments, or small nonprofit 
organizations. As a starting point, a recipient may conduct an 
individualized assessment that balances the following four factors:
     The number or proportion of LEP persons served or 
encountered in the eligible service population (``served or 
encountered'' includes those persons who would be served or 
encountered by the recipient if the persons received adequate 
education and outreach and the recipient provided sufficient 
language services);
     The frequency with which LEP persons come into contact 
with the program;
     The nature and importance of the program, activity, or 
service provided by the program; and
     The resources available and costs to the recipient.
    Examples of applying the four-factor analysis to HUD-specific 
programs are located in Appendix A of this Guidance.

[[Page 2752]]

VIII. What are examples of language assistance?

    Language assistance that a recipient might provide to LEP 
persons includes, but is not limited to:
     Oral interpretation services;
     Bilingual staff;
     Telephone service lines interpreter;
     Written translation services;
     Notices to staff and recipients of the availability of 
LEP services; or
     Referrals to community liaisons proficient in the 
language of LEP persons.

IX. What is a Language Access Plan (LAP) and what are the elements 
of an effective LAP?

    After completing the four-factor analysis and deciding what 
language assistance services are appropriate, a recipient may 
develop an implementation plan or LAP to address identified needs of 
the LEP populations it serves. Some elements that may be helpful in 
designing an LAP include:
     Identifying LEP persons who need language assistance 
and the specific language assistance that is needed;
     Identifying the points and types of contact the agency 
and staff may have with LEP persons;
     Identifying ways in which language assistance will be 
provided;
     Outreaching effectively to the LEP community;
     Training staff;
     Determining which documents and informational materials 
are vital;
     Translating informational materials in identified 
language(s) that detail services and activities provided to 
beneficiaries (e.g., model leases, tenants' rights and 
responsibilities brochures, fair housing materials, first-time 
homebuyer guide);
     Providing appropriately translated notices to LEP 
persons (e.g., eviction notices, security information, emergency 
plans);
     Providing interpreters for large, medium, small, and 
one-on-one meetings;
     Developing community resources, partnerships, and other 
relationships to help with the provision of language services; and
     Making provisions for monitoring and updating the LAP, 
including seeking input from beneficiaries and the community on how 
it is working and on what other actions should be taken.

X. What is a vital document?

    A vital document is any document that is critical for ensuring 
meaningful access to the recipients' major activities and programs 
by beneficiaries generally and LEP persons specifically. 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 auxiliary activities, such as 
certain recreational programs in public housing, would not generally 
be considered a vital document, whereas applications for housing 
would be considered vital. However, if the major purpose for funding 
the recipient were its recreational program, documents related to 
those programs would 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.

XI. How may a recipient determine the language service needs of a 
beneficiary?

    Recipients should elicit language service needs from all 
prospective beneficiaries (regardless of the prospective 
beneficiary's race or national origin). If the prospective 
beneficiary's response indicates a need for language assistance, the 
recipient may want to give applicants or prospective beneficiaries a 
language identification card (or ``I speak'' card). Language 
identification cards invite LEP persons to identify their own 
language needs. Such cards, for instance, might say ``I speak 
Spanish'' in both Spanish and English, ``I speak Vietnamese'' in 
both Vietnamese and English, 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. The State of 
Ohio Office of Criminal Justice Services, the National Association 
of Judiciary Interpreters and Translators, the Summit County 
Sheriff's Office, and the American Translators Association have made 
their language identification card available at http://www.lep.gov/ocjs_languagecard.pdf.

XII. How may a recipient's limited resources be supplemented to 
provide the necessary LEP services?

    A recipient should be resourceful in providing language 
assistance as long as quality and accuracy of language services are 
not compromised. The recipient itself need not provide the 
assistance, but may decide to partner with other organizations to 
provide the services. In addition, local community resources may be 
used if they can ensure that language services are competently 
provided. In the case of oral interpretation, for example, 
demonstrating competency requires more than self-identification as 
bilingual. Some bilingual persons may be able to communicate 
effectively in a different language when communicating information 
directly in that language, but may not be competent to interpret 
between English and that language. In addition, the skill of 
translating is very different than the skill of interpreting and a 
person who is a competent interpreter may not be a competent 
translator. To ensure the quality of written translations and oral 
interpretations, HUD encourages recipients to use members of 
professional organizations. Examples of such organizations are: 
National organizations, including American Translators Association 
(written translations), National Association of Judicial 
Interpreters and Translators, and International Organization of 
Conference Interpreters (oral interpretation); state organizations, 
including Colorado Association of Professional Interpreters and 
Florida Chapter of the American Translators Association; and local 
legal organizations such as Bay Area Court Interpreters. While HUD 
recommends using the list posted on http://www.LEP.gov, its 
limitations must be recognized. Use of the list is encouraged, but 
not required or endorsed by HUD. It does not come with a presumption 
of compliance. There are many other qualified interpretation and 
translation providers, including in the private sector.

XIII. May recipients rely upon family members or friends of the LEP 
person as interpreters?

    Generally, recipients should not rely on family members, friends 
of the LEP person, or other informal interpreters. In many 
circumstances, family members (especially children) or friends may 
not be competent to provide quality and accurate interpretations. 
Therefore, such language assistance may not result in an LEP person 
obtaining meaningful access to the recipients' programs and 
activities. However, when LEP persons choose not to utilize the free 
language assistance services expressly offered to them by the 
recipient but rather choose to rely upon an interpreter of their own 
choosing (whether a professional interpreter, family member, or 
friend), LEP persons should be permitted to do so, at their own 
expense. Recipients may consult HUD LEP Guidance for more specific 
information on the use of family members or friends as interpreters. 
While HUD guidance does not preclude use of friends or family as 
interpreters in every instance, HUD recommends that the recipient 
use caution when such services are provided.

XIV. Are leases, rental agreements and other housing documents of a 
legal nature enforceable in U.S. courts when they are in languages 
other than English?

    Generally, the English language document prevails. The HUD 
translated documents may carry the disclaimer, ``This document is a 
translation of a HUD-issued legal document. HUD provides this 
translation to you merely as a convenience to assist in your 
understanding of your rights and obligations. The English language 
version of this document is the official, legal, controlling 
document. This translated document is not an official document.'' 
Where both the landlord and tenant contracts are in languages other 
than English, state contract law governs the leases and rental 
agreements. HUD does not interpret state contract law. Therefore, 
questions regarding the enforceability of housing documents of a 
legal nature that are in languages other than English should be 
referred to a lawyer well-versed in contract law of the appropriate 
state or locality.

XV. Are EO 13166 and HUD LEP Guidance enforceable by individuals in 
a court of law?

    Neither EO 13166 nor HUD LEP Guidance grants an individual the 
right to proceed to court alleging violations of EO 13166 or HUD LEP 
Guidance. In addition, current Title VI case law only permits a 
private right of action for intentional discrimination and not for 
action based on the discriminatory effects of a recipient's 
practices. However, individuals may file administrative complaints 
with HUD alleging violations of Title VI because the HUD recipient 
failed to take reasonable steps

[[Page 2753]]

to provide meaningful access to LEP persons. The local HUD office 
will intake the complaint, in writing, by date and time, detailing 
the complainant's allegation as to how the HUD recipient failed to 
provide meaningful access to LEP persons. HUD will determine 
jurisdiction and follow up with an investigation of the complaint.

XVI. Who enforces Title VI as it relates to discrimination against 
LEP persons?

    Most federal agencies have an office that is responsible for 
enforcing Title VI of the Civil Rights Act of 1964. To the extent 
that a recipient's actions violate Title VI obligations, then such 
federal agencies will take the necessary corrective steps. The 
Secretary of HUD has designated the Office of Fair Housing and Equal 
Opportunity (FHEO) to take the lead in coordinating and implementing 
EO 13166 for HUD, but each program office is responsible for its 
recipients' compliance with the civil-rights related program 
requirements (CRRPRs) under Title VI.

XVII. How does a person file a complaint if he/she believes a HUD 
recipient is not meeting its Title VI LEP obligations?

    If a person believes that a HUD federally assisted recipient is 
not taking reasonable steps to ensure meaningful access to LEP 
persons, that individual may file a complaint with HUD's local 
Office of FHEO. For contact information of the local HUD office, go 
to http://www.hud.gov or call the housing discrimination toll free 
hotline at 800-669-9777 (voice) or 800-927-9275 (TTY).

XVIII. What will HUD do with a complaint alleging noncompliance 
with Title VI obligations?

    HUD's Office of FHEO will conduct an investigation or compliance 
review whenever it receives a complaint, report, or other 
information that alleges or indicates possible noncompliance with 
Title VI obligations by one of HUD's recipients. If HUD's 
investigation or review results in a finding of compliance, HUD will 
inform the recipient in writing of its determination. If an 
investigation or review results in a finding of noncompliance, HUD 
also will inform the recipient in writing of its finding and 
identify steps that the recipient must take to correct the 
noncompliance. In a case of noncompliance, HUD will first attempt to 
secure voluntary compliance through informal means. If the matter 
cannot be resolved informally, HUD may then secure compliance by: 
(1) Terminating the financial assistance of the recipient only after 
the recipient has been given an opportunity for an administrative 
hearing; and/or (2) referring the matter to DOJ for enforcement 
proceedings.

XIX. How will HUD evaluate evidence in the investigation of a 
complaint alleging noncompliance with Title VI obligations?

    Title VI is the enforceable statute by which HUD investigates 
complaints alleging a recipient's failure to take reasonable steps 
to ensure meaningful access to LEP persons. In evaluating the 
evidence in such complaints, HUD will consider the extent to which 
the recipient followed the LEP Guidance or otherwise demonstrated 
its efforts to serve LEP persons. HUD's review of the evidence will 
include, but may not be limited to, application of the four-factor 
analysis identified in HUD LEP Guidance. The four-factor analysis 
provides HUD a framework by which it may look at all the programs 
and services that the recipient provides to persons who are LEP to 
ensure meaningful access while not imposing undue burdens on 
recipients.

I.What is a ``safe harbor?'

    A ``safe harbor,'' in the context of this guidance, means that 
the recipient has undertaken efforts to comply with respect to the 
needed translation of vital written materials. If a recipient 
conducts the four-factor analysis, determines that translated 
documents are needed by LEP applicants or beneficiaries, adopts an 
LAP that specifies the translation of vital materials, and makes the 
necessary translations, then the recipient provides strong evidence, 
in its records or in reports to the agency providing federal 
financial assistance, that it has made reasonable efforts to provide 
written language assistance.

XXI. What ``safe harbors'' may recipients follow to ensure they 
have no compliance finding with Title VI LEP obligations?

    HUD has adopted a ``safe harbor'' for translation of written 
materials. The Guidance identifies actions that will be considered 
strong evidence of compliance with Title VI obligations. Failure to 
provide written translations under these cited circumstances does 
not mean that the recipient is in noncompliance. Rather, the ``safe 
harbors'' provide a starting point for recipients to consider:
     Whether and at what point the importance of the 
service, benefit, or activity involved warrants written translations 
of commonly used forms into frequently encountered languages other 
than English;
     Whether the nature of the information sought warrants 
written translations of commonly used forms into frequently 
encountered languages other than English;
     Whether the number or proportion of LEP persons served 
warrants written translations of commonly used forms into frequently 
encountered languages other than English; and
     Whether the demographics of the eligible population are 
specific to the situations for which the need for language services 
is being evaluated. In many cases, use of the ``safe harbor'' would 
mean provision of written language services when marketing to the 
eligible LEP population within the market area. However, when the 
actual population served (e.g., occupants of, or applicants to, the 
housing project) is used to determine the need for written 
translation services, written translations may not be necessary.
    The table below sets forth ``safe harbors'' for written 
translations.

------------------------------------------------------------------------
                                             Recommended provision of
         Size of language group            written language assistance
------------------------------------------------------------------------
1,000 or more in the eligible            Translated vital documents.
 population in the market area or among
 current beneficiaries.
More than 5% of the eligible population  Translated vital documents.
 or beneficiaries and more than 50 in
 number.
More than 5% of the eligible population  Translated written notice of
 or beneficiaries and 50 or less in       right to receive free oral
 number.                                  interpretation of documents.
5% or less of the eligible population    No written translation is
 or beneficiaries and less than 1,000     required.
 in number.
------------------------------------------------------------------------

    When HUD conducts a review or investigation, it will look at the 
total services the recipient provides, rather than a few isolated 
instances.

XXII. Is the recipient expected to provide any language assistance 
to persons in a language group when fewer than 5 percent of the 
eligible population and fewer than 50 in number are members of the 
language group?

    HUD recommends that recipients use the four-factor analysis to 
determine whether to provide these persons with oral interpretation 
of vital documents if requested.

XXIII. Are there ``safe harbors'' provided for oral interpretation 
services?

    There are no ``safe harbors'' for oral interpretation services. 
Recipients should use the four-factor analysis to determine whether 
they should provide reasonable, timely, oral language assistance 
free of charge to any beneficiary that is LEP (depending on the 
circumstances, reasonable oral language assistance might be an in-
person interpreter or telephone interpreter line).

XXIV. Is there a continued commitment by the Executive Branch to EO 
13166?

    There has been no change to the EO 13166. The President and 
Secretary of HUD are fully committed to ensuring that LEP persons 
have meaningful access to federally conducted programs and 
activities.

[[Page 2754]]

XXV. Did the Supreme Court address and reject the LEP obligation 
under Title VI in Alexander v. Sandoval [121 S. Ct. 1511 (2001)]?

    The Supreme Court did not reject the LEP obligations of Title VI 
in its Sandoval ruling. In Sandoval, 121 S. Ct. 1511 (2001), the 
Supreme Court held that there is no right of action for private 
parties to enforce the federal agencies' disparate impact 
regulations under Title VI. It ruled that, even if the Alabama 
Department of Public Safety's policy of administering driver's 
license examinations only in English violates Title VI regulations, 
a private party may not bring a lawsuit under those regulations to 
enjoin Alabama's policy. Sandoval did not invalidate Title VI or the 
Title VI disparate impact regulations, and federal agencies' (versus 
private parties) obligations to enforce Title VI. Therefore, Title 
VI regulations remain in effect. Because the legal basis for the 
Guidance required under EO 13166 is Title VI and, in HUD's case, the 
civil rights-related program requirements (CRRPR), dealing with 
differential treatment, and since Sandoval did not invalidate 
either, the EO remains in effect.

XXVI. What are the obligations of HUD recipients if they operate in 
jurisdictions in which English has been declared the official 
language?

    In a jurisdiction where English has been declared the official 
language, a HUD recipient is still subject to federal 
nondiscrimination requirements, including Title VI requirements as 
they relate to LEP persons.

XXVII. Where can I find more information on LEP?

    You should review HUD's LEP Guidance. Additional information may 
also be obtained through the federal-wide LEP Web site at http://www.lep.gov and HUD's Web site, http://www.hud.gov/offices/fheo/promotingfh/lep.cfm. HUD also intends to issue a Guidebook to help 
HUD recipients develop an LAP. A HUD-funded recipient who has 
questions regarding providing meaningful access to LEP persons may 
contact Pamela D. Walsh, Director, Program Standards Division, HUD/
FHEO, at (202) 708-2288 or 800-877-8339 (TTY). You may also email 
your question to [email protected].
[FR Doc. 07-217 Filed 1-16-07; 4:01 pm]
BILLING CODE 4210-67-P