[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
[[Page 2732]]
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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