[Federal Register Volume 72, Number 213 (Monday, November 5, 2007)]
[Notices]
[Pages 62493-62497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21631]


=======================================================================
-----------------------------------------------------------------------

NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES


National Endowment for the Humanities; Guidance to Federal 
Financial Assistance Recipients Regarding Title VI Prohibition Against 
National Origin Discrimination Affecting Limited English Proficient 
Persons

AGENCY: National Endowment for the Humanities.

ACTION: Final guidance.

-----------------------------------------------------------------------

SUMMARY: The National Endowment for the Humanities (NEH) is publishing 
final policy guidance on Title VI's prohibition against national origin 
discrimination as it affects limited English proficient persons.

DATES: This policy guidance is effective immediately.

FOR FURTHER INFORMATION CONTACT: Heather Gottry, Office of the General 
Counsel, National Endowment for the Humanities, 1100 Pennsylvania 
Avenue, NW., Room 529, Washington, DC 20506 or by telephone at 202-606-
8322 or TDD 1-866-372-2930, by facsimile at 202-606-8600, or by e-mail 
at [email protected].

SUPPLEMENTARY INFORMATION: On August 17, 2006, NEH published in the 
Federal Register at 71 FR 47541, proposed policy guidance on Title VI's 
prohibition against national origin discrimination as it affects 
limited English proficient persons. The agency publishes this as its 
Final Guidance.
    Under NEH regulations implementing Title VI of the Civil Rights Act 
of 1964, 42 U.S.C. 2000d, et seq. (Title VI), recipients of federal 
financial assistance from the NEH (recipients) have a responsibility to 
ensure meaningful access by persons with limited English proficiency 
(LEP) to their programs and activities. See 45 CFR 1170. Executive 
Order 13166, reprinted at 65 FR 50121 (August 16, 2000), directs each 
Federal agency that extends assistance subject to the requirements of 
Title VI to publish, after review and approval by the Department of 
Justice, guidance for its recipients clarifying that obligation. The 
Executive Order also directs that all such guidance be consistent with 
the compliance standards and framework detailed in DOJ Policy Guidance 
entitled ``Enforcement of Title VI of the Civil Rights Act of 1964--
National Origin Discrimination Against Persons With Limited English 
Proficiency.'' See 65 FR 50123 (August 16, 2000).
    On March 14, 2002, the Office of Management and Budget (OMB) issued 
a report to Congress titled ``Assessment of the Total Benefits and 
Costs of Implementing Executive Order No. 13166: Improving Access to 
Services for Persons With Limited English Proficiency.'' Among other 
things, the report recommended the adoption of uniform guidance across 
all federal agencies, with flexibility to permit tailoring to each 
agency's specific recipients. Consistent with this OMB recommendation, 
the Department of Justice (DOJ) published LEP Guidance for DOJ 
recipients which was drafted and organized to also function as a model 
for similar guidance by other Federal grant agencies. See 67 FR 41455 
(June 18, 2002). This guidance is based upon and incorporates the legal 
analysis and compliance standards of the model June 18, 2002, DOJ LEP 
Guidance for Recipients.
    It has been determined that the guidance does not constitute a 
regulation subject to the rulemaking requirements of the Administrative 
Procedure Act, 5 U.S.C. 553. It has also been determined that this 
guidance is not subject to the requirements of Executive Order 12866.
    The text of the complete final guidance document appears below.

    Dated: October 30, 2007.
Heather C. Gottry,
Acting General Counsel, National Endowment for the Humanities.

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

[[Page 62494]]

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.''
    Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq. 
and its implementing regulations provide that no person shall be 
subjected to discrimination on the basis of race, color, or national 
origin under any program or activity that receives federal financial 
assistance. Language for LEP individuals can be a barrier to accessing 
important benefits or services, understanding and exercising important 
rights, complying with applicable responsibilities, or understanding 
other information provided by federally funded programs and activities.
    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 clarify the 
responsibilities of recipients of federal financial assistance from the 
National Endowment for the Humanities (NEH), and assist them in 
fulfilling their responsibilities to limited English proficient (LEP) 
persons pursuant to Title VI of the Civil Rights Act of 1964 and the 
NEH implementing regulations. The policy guidance reiterates NEH's 
longstanding position that, in order to avoid discrimination against 
LEP persons on the grounds of national origin, recipients must take 
reasonable steps to ensure that such persons have meaningful access to 
the programs, services, and information those recipients provide.
    This policy guidance is modeled on and incorporates the legal 
analysis and compliance standards and framework set out in Section I 
through Section VIII of Department of Justice (DOJ) Policy Guidance 
titled ``Guidance to Federal Financial Assistance Recipients Regarding 
Title VI Prohibition Against National Origin Discrimination Affecting 
Limited English Proficient Persons,'' published at 67 FR 41455, 41457-
41465 (June 18, 2002) (DOJ Recipient LEP Guidance). To the extent 
additional clarification is desired on the obligation under Title VI to 
ensure meaningful access by LEP persons and how recipients can satisfy 
that obligation, a recipient should consult the more detailed 
discussion of the applicable compliance standards and relevant factors 
set out in DOJ Recipient LEP Guidance. The DOJ Guidance may be viewed 
and downloaded at http://www.usdoj.gov/crt/cor/lep/DOJFinLEPFRJun182002.htm or at  http://www.lep.gov. In addition, NEH 
recipients also receiving federal financial assistance from other 
federal agencies, such as the Department of Education or the National 
Endowment for the Arts, should review those agencies' guidance 
documents at http://www.lep.gov for a more focused explanation of how 
they can comply with their Title VI and regulatory obligations in the 
context of similar federally assisted programs or activities.
    Many commentators have noted that some have interpreted the case of 
Alexander v. Sandoval, 532 U.S. 275 (2001), as impliedly striking down 
the regulations promulgated under Title VI that form the basis for the 
part of Executive Order 13166 that applies to federally assisted 
programs and activities. The NEH and the Department of Justice have 
taken the position that this is not the case, and will continue to do 
so. Accordingly, we will strive to ensure that federally assisted 
programs and activities work in a way that is effective for all 
eligible beneficiaries, including those with limited English 
proficiency.

II. Purpose and Application

    This policy guidance provides a legal framework to assist 
recipients in developing appropriate and reasonable language assistance 
measures designed to address the needs of LEP individuals. The NEH 
Title VI implementing regulations prohibit both intentional 
discrimination and policies and practices that appear neutral but have 
a discriminatory effect. Thus, a recipient entity's policies or 
practices regarding the provision of benefits and services to LEP 
persons need not be intentional to be discriminatory, but may 
constitute a violation of Title VI if they have an adverse effect on 
the ability of national origin minorities to meaningfully access 
programs and services.
    Recipient entities have considerable flexibility in determining how 
to comply with their legal obligation in the LEP setting and are not 
required to use the suggested methods and options that follow. However, 
recipient entities must establish and implement policies and procedures 
for providing language assistance sufficient to fulfill their Title VI 
responsibilities and provide LEP persons with meaningful access to 
services.

III. Policy Guidance

1. Who Is Covered

    All entities that receive Federal financial assistance from NEH, 
either directly or indirectly, through a grant, cooperative agreement, 
contract or subcontract, are covered by this policy guidance. Title VI 
applies to all Federal financial assistance, which includes but is not 
limited to awards and loans of Federal funds, awards or donations of 
Federal property, details of Federal personnel, or any agreement, 
arrangement or other contract that has as one of its purposes the 
provision of assistance.
    Title VI prohibits discrimination in any program or activity that 
receives Federal financial assistance. In most cases, when a recipient 
receives Federal financial assistance for a particular program or 
activity, all operations of the recipient are covered by Title VI, not 
just the part of the program that uses the Federal assistance. Thus, 
all parts of the recipient's operations would be covered by Title VI, 
even if the Federal assistance were used only by one part.
    Finally, some recipients operate in jurisdictions in which English 
has been declared the official language. Nonetheless, these recipients 
continue to be subject to federal non-discrimination requirements, 
including those applicable to the provision of federally assisted 
services to persons with limited English proficiency.

2. Basic Requirement: All Recipients Must Take Reasonable Steps To 
Provide Meaningful Access to LEP Persons

    Title VI and the NEH implementing regulations require that 
recipients take reasonable steps to ensure meaningful access to the 
information, programs, and services they provide. Recipients of federal 
assistance have considerable flexibility in determining precisely how 
to fulfill this obligation.
    It is also important to emphasize that academic institutions, 
nonprofit organizations, museums and libraries are in the business of 
maintaining, sharing, and disseminating vast amounts of information and 
items, most of which are created or generated by third parties. In 
large measure, the common service provided by these recipients is 
access to information, whether maintained on-site or elsewhere, not the 
generation of the source information itself. This distinction is 
critical in properly applying Title VI to academic institutions, 
nonprofit organizations, museums, libraries, and similar programs. For 
example, in the context of library and museum services, recipients

[[Page 62495]]

initially should focus on their procedures or services that directly 
impact access in three areas. First, applications for library or museum 
membership cards, instructions on card usage, exhibit brochures, 
building maps, and dissemination of information on where and how source 
material and collections are maintained and indexed, should be 
available in appropriate languages other than English. Second, 
recipients should, consistent with the four-factor analysis, determine 
what reasonable steps could be taken to enhance the value of their 
collections or services to LEP persons, including, for example, 
accessing language-appropriate books through inter-library loans, 
direct acquisitions, and/or on-line materials. Third, to the extent a 
recipient provides services beyond museum exhibitions or access to 
books, art, or cultural collections to include the generation of 
information about those collections, research aids, or community 
educational outreach such as reading or discovery programs, these 
additional or enhanced services should be separately evaluated under 
the four-factor analysis. A similar distinction can be employed with 
respect to a museum's exhibits versus a museum's procedures for 
meaningful access to those exhibits.
    What constitute reasonable steps to ensure meaningful access in the 
context of federally assisted programs and activities in the area of 
academic institutions, nonprofit organizations, museums and library 
services will be contingent upon a balancing of four factors: (1) The 
number and proportion of eligible LEP constituents; (2) the frequency 
of LEP individuals' contact with the program; (3) the nature and 
importance of the program; and (4) the resources available, including 
costs. Each of these factors is summarized below. In addition, 
recipients should consult Section V of the June 18, 2002 DOJ LEP 
Guidance for Recipients, 67 FR at 41459-41460 or http://www.lep.gov, 
for additional detail on the nature, scope, and application of these 
factors.
(1) Number or Proportion of LEP Individuals
    The appropriateness of any action will depend on the size and 
proportion of the LEP population that the recipient serves and the 
prevalence of particular languages. Programs that serve a few or even 
one LEP person are still subject to the Title VI obligation to take 
reasonable steps to provide meaningful opportunities for access. The 
first factor in determining the reasonableness of a recipient's efforts 
is the number or proportion of people who will be effectively excluded 
from meaningful access to the benefits or services if efforts are not 
made to remove language barriers. The steps that are reasonable for a 
recipient who serves one LEP person a year may be different than those 
expected from a recipient that serves several LEP persons each day.
(2) Frequency of Contact With the Program
    Frequency of contact between the program or activity and LEP 
individuals is another factor to be weighed. If LEP individuals must 
access the recipient's program or activity on a daily basis, a 
recipient has greater duties than if such contact is unpredictable and 
infrequent. Recipients should take into account local or regional 
conditions when determining frequency of contact with the program, and 
should have the flexibility to tailor their services to those needs.
(3) Nature and Importance of the Program
    The importance of the recipient's program to beneficiaries will 
affect the determination of what reasonable steps are required. More 
affirmative steps must be taken in programs where the denial or delay 
of access may have serious, or even life or death implications than in 
programs that are not crucial to one's day-to-day existence, economic 
livelihood, safety, or education. For example, the obligations of a 
federally assisted school or hospital differ from those of a federally 
assisted nonprofit organization, museum or library. This factor implies 
that the obligation to provide translation services will be highest in 
programs providing education, job training, medical/health services, 
social welfare services, and similar services. As a general matter, it 
is less likely that nonprofit organizations, museums and libraries 
receiving assistance from the NEH will provide services having a 
similar immediate and direct impact on a person's life or livelihood. 
Thus, in large measure, it is the first factor (number or proportion of 
LEP individuals) that will have the greatest impact in determining the 
initial need for language assistance services.
    In assessing the effect on individuals of failure to provide 
language services, recipients must consider the importance of the 
benefit to individuals both immediately and in the long-term. Another 
aspect of this factor is the nature of the program itself. Some museum 
content may be extremely accessible regardless of language. In these 
instances, little translation might be required.
(4) Resources Available
    NEH is aware that its recipients may experience difficulties with 
resource allocation. Many of the organizations' overall budgets, and 
awards involved are quite small. The resources available to a recipient 
of federal assistance may have an impact on the nature of the steps 
that recipient must take to ensure meaningful access. For example, a 
small recipient with limited resources may not have to take the same 
steps as a larger recipient to provide LEP assistance in programs that 
have a limited number of eligible LEP individuals, where contact is 
infrequent, where the total cost of providing language services is 
relatively high, and/or where the program is not providing an important 
service or benefit from, for instance, a health, education, economic, 
or safety perspective. Translation and interpretation costs are 
appropriately included in award budget requests.
    This four-factor analysis necessarily implicates the ``mix'' of LEP 
services required. The correct mix should be based on what is both 
necessary and reasonable in light of the four-factor analysis. Even 
those award recipients who serve very few LEP persons on an infrequent 
basis should use a balancing analysis to determine whether the 
importance of the service(s) provided and minimal costs make language 
assistance measures reasonable even in the case of limited and 
infrequent interactions with LEP persons. Recipients have substantial 
flexibility in determining the appropriate mix.

IV. Strategies for Ensuring Meaningful Access

    Academic institutions, nonprofit organizations, museums and 
libraries have a long history of interacting with people with varying 
language backgrounds and capabilities within the communities where they 
are located. The agency's goal is to continue to encourage these 
efforts and share practices so that other academic institutions, 
nonprofit organizations, museums and libraries can benefit from other 
institutions' experiences.
    The following are examples of language assistance strategies that 
are potentially useful for all recipients. These strategies incorporate 
a variety of options and methods for providing meaningful access to LEP 
beneficiaries and provide examples of how recipients should take each 
of the four factors discussed above into account when developing an LEP 
strategy. Not every option is necessary or appropriate for every 
recipient with respect to all of its programs and activities. Indeed, a

[[Page 62496]]

language assistance plan need not be intricate; it may be as simple as 
being prepared to use a commercially available language line to obtain 
immediate interpreting services and/or having bilingual staff members 
available who are fluent in the most common non-English languages 
spoken in the area. Recipients should exercise the flexibility afforded 
under this Guidance to select those language assistance measures which 
have the greatest potential to address, at appropriate levels and in 
reasonable manners, the specific language needs of the LEP populations 
they serve.
    Finally, the examples below are not intended to suggest that if 
services to LEP populations aren't legally required under Title VI and 
Title VI regulations, they should not be undertaken. Part of the way in 
which academic institutions, nonprofit organizations, museums and 
libraries build communities is by cutting across barriers like 
language. A small investment in outreach to a linguistically diverse 
community may well result in a rich cultural exchange that benefits not 
only the LEP population, but also the academic institutions, nonprofit 
organizations, museums and libraries and the community as a whole.

Examples

     Identification of the languages that are likely to be 
encountered in, and the number of LEP persons that are likely to be 
affected by, the program. This information may be gathered through 
review of census and constituent data as well as data from school 
systems and community agencies and organizations;
     Posting signs in public areas in several languages, 
informing the public of its right to free interpreter services and 
inviting members of the public to identify themselves as persons 
needing language assistance;
     Use of ``I speak'' cards for public-contact personnel so 
that the public can easily identify staff language abilities;
     Employment of staff, bilingual in appropriate languages, 
in public contact positions;
     Contracts with interpreting services that can provide 
competent interpreters in a wide variety of languages in a timely 
manner;
     Formal arrangements with community groups for competent 
and timely interpreter services by community volunteers;
     An arrangement with a telephone language interpreter line 
for on-demand service;
     Translations of application forms, instructional, 
informational and other key documents into appropriate non-English 
languages and provide oral interpreter assistance with documents for 
those persons whose language does not exist in written form;
     Procedures for effective telephone communication between 
staff and LEP persons, including instructions for English-speaking 
employees to obtain assistance from bilingual staff or interpreters 
when initiating or receiving calls to or from LEP persons;
     Notice to and training of all staff, particularly public 
contact staff, with respect to the recipient's Title VI obligation to 
provide language assistance to LEP persons, and on the language 
assistance policies and the procedures to be followed in securing such 
assistance in a timely manner;
     Insertion of notices, in appropriate languages, about 
access to free interpreters and other language assistance, in 
brochures, pamphlets, manuals, and other materials disseminated to the 
public and to staff; and
     Notice to and consultation with community organizations 
that represent LEP language groups, regarding problems and solutions, 
including standards and procedures for using their members as 
interpreters.
    In identifying language assistance measures, recipients should 
avoid relying on an LEP person's family members, friends, or other 
informal interpreters to provide meaningful access to important 
programs and activities. However, where LEP persons so desire, they 
should be permitted to use, at their own expense, an interpreter of 
their own choosing (whether a professional interpreter, family member, 
or friend) in place of or as a supplement to the free language services 
expressly offered by the recipient. But where a balancing of the four 
factors indicate that recipient-provided language assistance is 
warranted, the recipient should take care to ensure that the LEP 
person's choice is voluntary, that the LEP person is aware of the 
possible problems if the preferred interpreter is a minor child, and 
that the LEP person knows that a competent interpreter could be 
provided by the recipient at no cost.
    The use of family and friends as interpreters may be an appropriate 
option where proper application of the four factors would lead to a 
conclusion that recipient-provided language assistance is not 
necessary. An example of this might be a bookstore or cafeteria 
associated with a museum. 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 technical 
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 other informal ad hoc interpreters may be 
appropriate.
    As noted throughout this guidance, NEH award recipients have a 
great deal of flexibility in addressing the needs of their constituents 
with limited English skills. That flexibility does not diminish, and 
should not be used to minimize, the obligation that those needs be 
addressed. NEH recipients should apply the four factors outlined above 
to the various kinds of contacts that they have with the public to 
assess language needs and decide what reasonable steps they should take 
to ensure meaningful access for LEP persons. By balancing the number or 
proportion of people with limited English skills served, the frequency 
of their contact with the program, the importance and nature of the 
program, and the resources available, NEH awardees' Title VI 
obligations in many cases will be satisfied by making available oral 
language assistance or commissioning translations on an as-requested 
and as-needed basis. There are many circumstances where, after an 
application and balancing of the four factors noted above, Title VI 
would not require translation. For example, Title VI does not require a 
library to translate its collections, but it does require the 
implementation of appropriate language assistance measures to permit an 
otherwise eligible LEP person to apply for a library card and 
potentially to access appropriate-language materials through inter-
library loans or other reasonable methods. The NEH views this policy 
guidance as providing sufficient flexibility to allow the NEH to 
continue to fund language-dependent programs in both English and other 
languages without requiring translation that would be inconsistent with 
the nature of the program. Recipients should consult Section VI of the 
June 18, 2002 DOJ LEP Guidance for Recipients, 67 FR at 41461-41464 or 
http://www.lep.gov, for additional clarification on the standards 
applicable to assessing interpreter and translator competence, and for 
determining when translations of documents vital to accessing program 
benefits should be undertaken.
    The key to ensuring meaningful access for people with limited 
English skills is effective communication. Academic institutions, 
nonprofit organizations, museums and libraries can ensure effective 
communication by developing and implementing a comprehensive language 
assistance

[[Page 62497]]

program that includes policies and procedures for identifying and 
assessing the language needs of its LEP constituents. Such a program 
should also provide for a range of oral language assistance options, 
notice to LEP persons of the right to language assistance, periodic 
training of staff, monitoring of the program and, in certain 
circumstances, the translation of written materials.
    Each recipient should, based on its own volume and frequency of 
contact with LEP clients and its own available resources, adopt a 
procedure for the resolution of complaints regarding the provision of 
language assistance and for notifying the public of their right to and 
how to file a complaint under Title VI. State recipients, who will 
frequently serve large numbers of LEP individuals, may consider 
appointing a senior level employee to coordinate the language 
assistance program and to ensure that there is regular monitoring of 
the program.

V. Compliance and Enforcement

    Executive Order 13166 requires that each federal department or 
agency extending federal financial assistance subject to Title VI issue 
separate guidance implementing uniform Title VI compliance standards 
with respect to LEP persons. Where recipients of federal financial 
assistance from NEH also receive assistance from one or more other 
federal departments or agencies, there is no obligation to conduct and 
document separate but identical analyses and language assistance plans 
for NEH. NEH, in discharging its compliance and enforcement obligations 
under Title VI, looks to analyses performed and plans developed in 
response to similar detailed LEP guidance issued by other federal 
agencies. Recipients may rely upon guidance issued by those agencies.
    NEH's regulations implementing Title VI contain compliance and 
enforcement provisions to ensure that a recipient's policies and 
practices overcome barriers resulting from language differences that 
would deny LEP persons an equal opportunity to participate in and 
access to programs, services and benefits offered by NEH. See 45 CFR, 
Part 1110. The agency will ensure that its recipient entities fulfill 
their responsibilities to LEP persons through the procedures provided 
for in the Title VI regulations.
    The Title VI regulations provide that NEH will investigate (or 
contact its State recipient of funds to investigate, if appropriate) 
whenever it receives a complaint, report or other information that 
alleges or indicates possible noncompliance with Title VI. If the 
investigation results in a finding of compliance, NEH will inform the 
recipient in writing of this determination, including the basis for the 
determination. If the investigation results in a finding of 
noncompliance, NEH must inform the recipient of the noncompliance 
through a Letter of Findings that sets out the areas of noncompliance 
and the steps that must be taken to correct the noncompliance, and must 
attempt to secure voluntary compliance through informal means. If the 
matter cannot be resolved informally, the NEH will secure compliance 
through (a) the suspension or termination of Federal assistance after 
the recipient has been given an opportunity for an administrative 
hearing, (b) referral to the Department of Justice for injunctive 
relief or other enforcement proceedings, or (c) any other means 
authorized by federal, state, or local law.
    Under the Title VI regulations, the NEH has a legal obligation to 
seek voluntary compliance in resolving cases and cannot seek the 
termination of funds until it has engaged in voluntary compliance 
efforts and has determined that compliance cannot be secured 
voluntarily. NEH will engage in voluntary compliance efforts and will 
provide technical assistance to recipients at all stages of its 
investigation. During these efforts to secure voluntary compliance, NEH 
will propose reasonable timetables for achieving compliance and will 
consult with and assist recipients in exploring cost effective ways of 
coming into compliance.
    In determining a recipient's compliance with Title VI, the NEH's 
primary concern is to ensure that the recipient's policies and 
procedures overcome barriers resulting from language differences that 
would deny LEP persons a meaningful opportunity to participate in and 
access programs, services, and benefits. A recipient's appropriate use 
of the methods and options discussed in this policy guidance will be 
viewed by the NEH as evidence of a recipient's willingness to comply 
voluntarily with its Title VI obligations. If implementation of one or 
more of these options would be so financially burdensome as to defeat 
the legitimate objectives of a recipient/covered entity's program, or 
if there are equally effective alternatives for ensuring that LEP 
persons have meaningful access to programs and services (such as timely 
effective oral interpretation of vital documents), NEH will not find 
the recipient/covered entity in noncompliance.
    If you have any questions related to this policy, please contact 
the NEH Office of the General Counsel.

[FR Doc. E7-21631 Filed 11-2-07; 8:45 am]
BILLING CODE 7536-01-P