[Federal Register Volume 76, Number 74 (Monday, April 18, 2011)]
[Notices]
[Pages 21755-21768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9336]
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DEPARTMENT OF HOMELAND SECURITY
[DHS Docket No. DHS-2009-0032]
Guidance to Federal Financial Assistance Recipients Regarding
Title VI Prohibition Against National Origin Discrimination Affecting
Limited English Proficient Persons
AGENCY: Office for Civil Rights and Civil Liberties, DHS.
ACTION: Notice; final policy guidance.
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SUMMARY: The Department of Homeland Security is finalizing guidance to
recipients of Federal financial assistance regarding Title VI's
prohibition against national origin discrimination affecting persons
with limited English proficient persons. This guidance is issued
pursuant to Executive Order 13166 and is consistent with government-
wide guidance previously issued by the Department of Justice.
DATES: This guidance is effective May 18, 2011.
FOR FURTHER INFORMATION CONTACT: Rebekah Tosado, Senior Advisor to the
Officer for Civil Rights and Civil Liberties, Office for Civil Rights
and Civil Liberties, Department of Homeland Security, 245 Murray Lane,
SW., Building 410, Washington, DC 20528, Mail Stop 0190. Toll free: 1-
866-644-8360 or TTY 1-866-644-8361. Local: 202-401-1474 or TTY: 202-
401-0470.
SUPPLEMENTARY INFORMATION: Executive Order 13166 directs each Federal
agency that extends assistance subject to the requirements of Title VI
of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq., to publish
guidance for its respective recipients clarifying that obligation.
Executive Order 13166, Improving Access to Services for Persons with
Limited English Proficiency, 65 FR 50121 (August 11, 2000). Executive
Order 13166 further directs that all such guidance documents be
consistent with the compliance standards and framework detailed by the
Department of Justice (DOJ). See Enforcement of Title VI of the Civil
Rights Act of 1964--National Origin Discrimination Against Persons with
Limited English Proficiency, 65 FR 50123 (August 16, 2000) (DOJ Agency
LEP Guidance).
The Department of Homeland Security (DHS) adopts guidance that
adheres to the Government-wide compliance standards and framework
detailed in the DOJ Agency LEP Guidance and in the DOJ's own guidance
to its financial assistance recipients. Guidance to Federal Financial
Assistance Recipients
[[Page 21756]]
Regarding Title VI Prohibition Against National Origin Discrimination
Affecting Limited English Proficient Persons, 67 FR 41455 (June 18,
2002) (DOJ Recipient LEP Guidance). The Departments of Commerce,
Education, Energy, Health and Human Services, Housing and Urban
Development, Interior, Justice, Labor, State, Transportation, Treasury,
and Veterans Affairs, the Environmental Protection Agency, and several
other independent and Executive Branch agencies have issued similar
guidance. DHS solicited comments on the nature, scope, and
appropriateness of the DHS-specific examples set out in this guidance
explaining and/or highlighting how those Federal-wide guidelines are
applicable to recipients of DHS financial assistance.
This guidance does not constitute a regulation subject to the
rulemaking requirements of the Administrative Procedure Act. 5 U.S.C.
553. This guidance was published for public comment in the Federal
Register pursuant to the instructions in Executive Order 13166.
A. Response to Comments
The DHS draft guidance on DHS recipients' obligations to take
reasonable steps to ensure access by LEP persons was published on June
17, 2010. See 75 FR 34465. The comment period was clarified to extend
to July 17, 2010. See 75 FR 38821 (July 6, 2010). DHS received 9
comments representing at least 24 organizations in response to its
publication of draft guidance on DHS recipients' obligations to take
reasonable steps to ensure access to programs and activities by LEP
persons. The comments reflected the views of individuals, organizations
serving LEP populations, national civil rights organizations, a public
policy and law institute, and several legal service providers.
The comments were generally supportive of DHS's effort to issue
this guidance, and all provided constructive comments for amplifying
specific examples, strengthening certain language, and better ensuring
the effectiveness of the guidelines. No comments generally unfavorable
to the guidance were received, and seven comments endorsed or applauded
the guidance as a general matter. Nearly all comments noted that
failure to communicate with or understand an LEP person can pose a risk
to life, limb, and property in cases of emergency, disaster, or law
enforcement activity. DHS agrees; the final guidance informs recipients
that if they provide benefits and services or operate in the context of
emergency preparedness, response and recovery, health and safety, or
law enforcement they should be prepared to provide language services to
LEP persons in the jurisdictions in which they operate. DHS looks
forward to continued progress, in partnership with recipients and
beneficiaries, on ensuring meaningful access to LEP persons.
One comment urged DHS's Office for Civil Rights and Civil Liberties
to provide technical assistance to recipients on meeting their
responsibilities under Title VI as outlined in the guidance and to
serve as a centralized resource center on model plans and promising
practices for recipients to better serve LEP persons. As noted in the
guidance, CRCL will be available to provide such technical assistance
and will continue to work with the U.S. Department of Justice and other
agencies to make resources available through LEP.gov (http://www.lep.gov), the Web site of the Federal Interagency Working Group,
with information for recipients, Federal agencies, and the communities
being served. Two comments urged that DHS proceed to issuance of LEP
guidance for Federally conducted activities as well, as required by
Executive Order 13166. A plan for DHS is forthcoming; in the meantime,
this guidance recognizes, in footnote 4, that Departmental activities
are subject to the same four-factor framework for providing LEP access
as are recipients. One comment proposed revising draft LEP guidance
prepared by the Federal Emergency Management Agency (FEMA) in 2002,
prior to its transfer into DHS, and consider issuing LEP guidance by
other DHS components. DHS disagrees, and believes uniform department-
wide LEP guidance will provide a clearer framework for recipients of
assistance than potentially conflicting guidance from different
components. This guidance to recipients will apply to all DHS
components.
The comments received on more specific subjects are summarized and
addressed below.
1. Motor Vehicle Departments and Mass Transit Providers
Three comments recommended express mention of motor vehicle
departments, and two recommended inclusion of mass transit providers,
as recipients with high rates of contact with, and potential obstacles
to meaningful participation by, LEP persons. Mass transit authorities
were already included in the draft guidance. The guidance now includes
motor vehicle departments as well.
2. Detention
Five comments urged revisions to the guidance to discuss alien
detention programs operated by U.S. Immigrations and Customs
Enforcement (ICE). Federally conducted activity, including ICE's
immigration detention, is not regulated by Title VI and is not within
the scope of this guidance. We note again, however, that Executive
Order 13166 governs DHS's own Federally conducted activity. DHS and ICE
take very seriously the need to strengthen the provision of language
access for all ICE detainees who are LEP. ICE detention standards,
including detention standards related to health care, grievances,
searches, sexual abuse prevention, and staff-detainee communication,
require that detainees be provided information in a language they can
understand. Among other steps, ICE has increased the number of
translated forms available and commercial interpreter lines are used to
facilitate communication with detainees. ICE has provided training to
detention managers on Executive Order 13166, and on how to provide
meaningful access to LEP persons who are detained and will continue to
make training and resources available to personnel that interact with
LEP detainees. In addition, LEP persons in ICE detention will be
covered by the forthcoming LEP plan for DHS activities. Similarly,
ICE's immigration enforcement activities and its alternatives to
detention programs, which were addressed by several comments, are
Federally conducted activities that fall outside the scope of this
guidance but will be covered by the LEP plan. Several other comments
referred to ``detention'' generally, with one comment suggesting
greater incorporation of language included in the DOJ Recipient LEP
Guidance with respect to conditions of confinement and provision of
health services. As explained below, where DOJ is the primary provider
of Federal assistance to recipients--as it is with recipients that
operate non-immigration detention--recipients will generally be well
served by referring directly to that guidance, which these guidelines
incorporate by reference. Because State and local jails and prisons are
primarily assisted by DOJ, additional references to the unique issues
presented by detention would not clarify the guidance for recipients of
Departmental assistance.
[[Page 21757]]
3. State and Local Law Enforcement and Other Specific Recipients
At least four comments suggested more expansive discussion of local
law enforcement agencies, with particular attention to programs through
which State and local law enforcement entities partner with ICE through
a joint memorandum of agreement (MOA) to perform certain functions of
an immigration officer in the enforcement of Federal immigration law
within their jurisdiction. Immigration and Nationality Act, as amended
(INA), section 287(g), 8 U.S.C. 1357(g). The MOA between ICE and
participating agencies states that Title VI, including the necessity of
providing access for LEP persons, applies to all participating State
and local law enforcement personnel. The agreements already make clear
that law enforcement agencies have obligations to provide language
services to LEP persons encountered in exercising the authority under
the INA and the guidance already lists State and local police
departments as examples of DHS recipients to which the guidance
applies. Nevertheless, the guidance has been revised in several places
to emphasize aspects pertinent to State and local law enforcement
agencies receiving assistance from DHS.
Four comments suggested that the guidance should expressly refer
recipients to guidance by other agencies, including DOJ and HHS, that
conclude that LEP assistance must be provided in certain critical
environments. Recipients should look chiefly to the guidance
promulgated by the agency that is the primary source of Federal
assistance to an entity--as, for example, DOJ is for State and local
law enforcement. Thus, the guidance refers to DOJ's and other agencies'
guidance. In addition, the guidance notes that it is (and is intended
to be) consistent with other agencies' LEP guidance. For that reason,
DHS has concluded that specific reference to particular DHS programs,
such as those related to INA section 287(g), would not provide any
additional clarity to entities covered by this guidance. The guidance
has been revised to direct recipients to other agency guidance where
appropriate.
In addition to revisions to the guidance, two comments proposed
substantive revisions to all memoranda of agreement implementing INA
section 287(g) agreements pertaining to issues that may involve LEP
persons including domestic abuse and human trafficking. While these
agreements fall outside the scope of this publication, DHS is committed
to strengthening its technical assistance to and oversight of these law
enforcement partners in meeting their obligations toward LEP persons
under Title VI. For example, in reminding State and local partners
about their obligations with LEP persons, ICE has shared a host of
resources, including the following materials developed by DOJ and
available online at LEP.gov: Planning Tool for Creating a Language
Assistance Policy and Plan for a Law Enforcement Agency, and Lost in
Translation: Limited English Proficient Populations and the Police by
Bharathi A. Venkatraman, Attorney, Civil Rights Division, U.S.
Department of Justice. ICE has also made language interpretation
resources available to its INA section 287(g) partners.
Two comments urged that State, county, and municipal courts be
expressly included among entities subject to the guidance. As DHS is
not the principal source of Federal assistance to such entities, and
rarely a significant source of assistance, any such recipients will
comply with their LEP obligations by adhering to the guidance
promulgated by the primary source of such assistance. DOJ recently
addressed LEP issues in State and municipal courts in a letter from
Assistant Attorney General Thomas E. Perez to State chief justices and
court administrators, available at http://www.LEP.gov.
4. Application of the Four Factors
Several comments recommended additional language guiding
application of the four factors used in determining the extent of a
recipient's LEP obligations with regard to particular recipients or
activities. With the exception of areas already discussed as
implicating only DHS conducted activity, such as ICE detention, these
helpful comments have generally been incorporated into the guidance.
For example, part V.3. of the guidance now discusses the importance of
being prepared to provide language access for recipients that provide
services and benefits or operate in the context of emergency
preparedness; response and recovery; health and safety; and law
enforcement. encountering LEP persons.
5. Interpretation and Translation
Three comments provided suggestions regarding forms, methods, and
practices in interpretation and translation. The final guidance better
reflects the relevance of accreditation and certification of
interpreters and translators, and to make clear that summarization is
not an acceptable form of interpretation. The guidance suggests that
certification of interpreters may be required (when possible) when
legal rights are at stake. The guidance also reflects one comment's
suggestions that legal advocates, civil rights groups, and similar
associations can play a valuable role in determining how best to
provide language assistance services when important rights are at
stake. Other suggestions, though well taken, are already reflected in
the guidance, such as one comment's observation that bilingual staff
may not necessarily have appropriate skills to translate documents.
One comment suggested DHS recognize ``back-translation'' as a safe
harbor practice; two others suggested cooperation with legal and other
community organizations as a safe harbor. While back-translation is an
excellent technique for verifying a translation, DHS declines to depart
from other agencies' guidance by creating new safe harbors. The
guidance is sufficiently flexible to ensure that recipients can readily
incorporate community organizations and other best practices to create
an appropriate LEP policy. DHS incorporated one comment's suggestion
that recipients be urged to develop a systemic process for determining
which documents to translate.
DHS disagrees with one comment's suggestion that the guidance
demand high-quality interpretation in all circumstances. A rigid
requirement that denies recipients the ability to intelligently
allocate LEP resources would be counter-productive. Similarly, DHS
disagrees with a comment's argument that in-person oral interpretation
is always preferable to telephonic interpretation. Recipients should
consider which interpretative techniques are best-suited to a given
program or situation; one size does not fit all. Likewise, DHS does not
agree with a comment urging it to mandate that all language services
for LEP persons be provided in the same manner and timeframe as they
are for English speakers. Nevertheless, the guidance explains that it
is more likely that a recipient is providing meaningful access in
certain cases when there is immediate access to competent bilingual
staff or on-site or telephonic interpretation. DHS agrees with, and has
adopted, one comment's recommendation that recipients ensure staff are
suitably trained in, and have appropriate equipment to utilize,
telephonic interpretation services.
The guidance has been revised in light of multiple comments
concerning use of informal interpretation or interpretation by family
members, or friends. The use of such informal interpreters is strongly
discouraged in
[[Page 21758]]
certain situations, such as in most medical encounters where recipients
should make regular use of competent interpreters. DHS disagrees with a
comment suggesting that documentation necessarily be kept whenever an
LEP person wishes to provide his or her own interpreter, but the
guidance now suggests that any such choice be fully informed and
voluntary. In addition, the guidance makes clear that recipients need
not agree to using an LEP person's interpreter as the sole means of
interpretation. In response to several comments, the guidance now
rejects using minor children as interpreters except in temporary,
emergency situations when other options are not readily available, and
it makes clear that when interpreters are provided by recipients, they
must be free of charge.
6. Language Assistance Plans
Five comments concerned written Language Assistance Plans. The DHS
guidance now suggests that all appropriate staff receive a copy of the
LEP plan; includes DHS's processes for receiving complaints; encourages
involvement with civil rights groups and similar associations in
developing and revising a plan; and encourages the tracking of
encounters with LEP persons by, among other things, languages spoken.
While many, or even most, recipients would be well advised to develop a
written plan, DHS disagrees with comments advocating that such plans be
mandatory; however, the guidance suggests that recipients that are
likely to encounter LEP persons have a policy for providing language
access and that recipients communicate the policy with staff and LEP
persons. One comment suggested the guidance encourage recipients to
partner with groups in the community to help determine whether a
language access plan is necessary and in the creation of language
access plans. DHS recognizes the value of this and has added language
to this guidance to encourage such partnerships.
Finally, this guidance suggests that recipients have a policy as
well as an implementation plan to address the identified language needs
of the LEP populations they serve. Having such a policy, however
simple, can serve to guide the recipient in its services to LEP persons
and be a starting point from which to plan the delivery of services and
benefits in a manner designed to ensure equal access to LEP individuals
in the service area who are entitled to receive them.
7. Enforcement and Monitoring
DHS takes seriously its obligation under 6 CFR part 21 and 44 CFR
7.5(b) to enforce the non-discriminatory requirements of Title VI. The
DHS Office for Civil Rights and Civil Liberties, along with FEMA's
Office of Equal Rights and other component offices, will enforce and
monitor efforts. As noted in the Guidance, the DHS Office for Civil
Rights and Civil Liberties and FEMA's Office of Equal Rights accept
complaints or inquires related to a recipient's provision of meaningful
access to LEP persons and is prepared to take enforcement action in any
case in which a violation has been established.
Guidance to Federal Financial Assistance Recipients Regarding Title VI
Prohibition Against National Origin Discrimination Affecting Limited
English Proficient Persons
I. Introduction
Most individuals living in the United States read, write, speak,
and understand English. Many individuals, however, do not read, write,
speak, or understand English as their primary language. Based on the
2000 census, over 28 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. The
2000 census indicates that 28.1 percent of all Spanish-speakers, 28.2
percent of all Chinese-speakers, and 32.3 percent of all Vietnamese-
speakers reported that they spoke English ``not well'' or ``not at
all.'' More recent data from the 2008 American Community Survey
estimates that 24.4 million individuals in America, or 8.6 percent of
the population 5 years and older, speak English less than ``very
well.''
For LEP individuals, language can be a barrier to accessing
important benefits or services, understanding and exercising important
rights, providing timely and critical information to first responders
in times of emergency, complying with applicable responsibilities, or
understanding other information provided by Federally funded programs
and activities. DHS, like other Federal agencies and the Federal
Government as a whole, 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. However, the fact that ESL classes are
made available does not obviate the statutory and regulatory
requirement to provide meaningful access for those who are not yet
English proficient. Recipients of Federal financial assistance have an
obligation to reduce language barriers that can preclude meaningful
access by LEP persons to important government services.\1\
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\1\ DHS 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 DHS recipients
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
population it encounters, and its prior experience in providing
language services in the community it serves.
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In certain circumstances, failure to ensure that LEP persons can
effectively participate in or benefit from Federally assisted programs
and activities may violate the prohibition under Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d, and DHS Title VI regulations
against national origin discrimination, 6 CFR part 21. The purpose of
this policy guidance is to assist DHS recipients in fulfilling their
responsibilities to provide meaningful access to LEP persons under
existing law. This policy guidance clarifies existing legal
requirements for LEP persons by providing a description of the factors
DHS recipients should consider in fulfilling their responsibilities to
LEP persons.\2\ These are the same criteria DHS uses in evaluating
whether recipients are in compliance with Title VI and its regulations.
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\2\ The policy guidance is not a regulation but rather a guide.
Title VI and its implementing regulations require that recipients
take responsible steps to ensure meaningful access by LEP persons.
This guidance provides an analytical framework that recipients may
use to determine how best to comply with statutory and regulatory
obligations to provide meaningful access to the benefits, services,
information, and other important portions of their programs and
activities for individuals who are limited English proficient.
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Consistency among agencies of the Federal Government is
particularly important. Inconsistency or contradictory guidance could
confuse recipients of Federal funds and needlessly increase costs
without rendering the meaningful access for LEP persons that this
guidance is designed to address. This guidance is consistent with both
the 2000 DOJ Agency LEP Guidance and the 2002 DOJ Recipient
[[Page 21759]]
LEP Guidance. This guidance, moreover, includes additional information,
resources, and guidance that have been developed by the Federal
Government in the years that have followed the publication of Executive
Order 13166 and the DOJ guidance.
As with most government initiatives, providing meaningful access
for LEP persons requires balancing several principles. While this
guidance discusses that balance in some detail, it is important to note
the basic principles. First, we must ensure that Federally assisted
programs aimed at the American public do not leave some behind simply
because they face challenges communicating in English. This is of
particular importance because, in many cases, LEP individuals form a
substantial portion of those individuals encountered in Federally
assisted programs. Second, we must achieve this goal while finding
constructive methods to reduce the costs of LEP requirements on small
businesses, small local governments, or small non-profits 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. DHS is committed to working with its recipients to provide
information on language assistance measures, resources, and activities
that can effectively be shared or otherwise made available to
recipients. In addition, the Federal Interagency Working Group on LEP
has developed a Web site, http://www.lep.gov, which assists in
disseminating this information to recipients, Federal agencies, and the
communities being served.
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.
DHS regulations promulgated pursuant to section 602 forbid
recipients from ``utiliz[ing] criteria or methods of administration
which have the effect of subjecting persons to discrimination because
of their race, color, or national origin, or have the effect of
defeating or substantially impairing accomplishment of the objectives
of the program with respect to individuals of a particular race, color,
or national origin.'' 6 CFR 21.5(b)(2).
The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974),
interpreted a regulation promulgated by the former Department of
Health, Education, and Welfare, 45 CFR 80.3(b)(2), which is similar to
the DHS Title VI interim regulation, 6 CFR part 21, 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, the President signed Executive Order 13166,
Improving Access to Services for Persons with Limited English
Proficiency, 65 FR 50121 (August 11, 2000). Under that order, every
Federal agency that provides financial assistance to non-Federal
entities must publish guidance on how their recipients can provide
meaningful access to LEP persons and thus comply with Title VI
regulations forbidding funding recipients from ``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.''
At the same time, DOJ provided further guidance to Executive Agency
civil rights officers, setting forth general principles for agencies to
apply in developing guidance documents for recipients pursuant to the
Executive Order. Enforcement of Title VI of the Civil Rights Act of
1964 National Origin Discrimination Against Persons With Limited
English Proficiency, 65 FR 50123 (August 16, 2000) (DOJ Agency LEP
Guidance).
Subsequently, the Supreme Court decided that Title VI does not
create a private right of action to enforce regulations promulgated
under Section 602. Alexander v. Sandoval, 532 U.S. 275, 293 (2001).
Federal agencies raised questions regarding the requirements of the
Executive Order, in light of the Supreme Court's decision in Alexander
v. Sandoval. On October 26, 2001, DOJ's Assistant Attorney General for
the Civil Rights Division advised agency General Counsels and civil
rights directors, clarifying and reaffirming the DOJ Agency LEP
Guidance in light of Sandoval.\3\ The Assistant Attorney General stated
that because Sandoval did not invalidate any Title VI regulations that
proscribe conduct that has a disparate impact on covered groups--the
types of regulations that form the legal basis for the part of
Executive Order 13166 that applies to Federally assisted programs and
activities--the Executive Order remains in force. Mindful of the
limitations on bringing a private action to enforce Title VI
regulations addressing disparate impact, DHS is committed to vigorously
enforcing the requirements of Title VI and its implementing regulations
on behalf of LEP beneficiaries and other LEP persons encountered by DHS
assisted agencies and entities.
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\3\ The memorandum noted that some commenters have interpreted
Sandoval as impliedly striking down the disparate-impact regulations
promulgated under Title VI that form the basis for the part of
Executive Order 13166 that applies to Federally assisted programs
and activities. See, e.g., Sandoval, 532 U.S. at 286, 286 n.6
(``[W]e assume for purposes of this decision that Sec. 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 or,
and inseparably intertwined with' Sec. 601 * * * when Sec. 601
permits the very behavior that the regulations forbid.''). The
memorandum, however, made clear that DOJ disagreed with the
commenters' interpretation. Sandoval holds principally that there is
no private right of action to enforce Title VI disparate-impact
regulations. The court explicitly stated in Sandoval that it did not
address the validity of those regulations or Executive Order 13166
or otherwise limit the authority and responsibility of Federal grant
agencies to enforce their own implementing regulations. 532 U.S. at
279.
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DOJ developed further guidance for recipients of financial
assistance from that agency. Guidance to Federal Financial Assistance
Recipients Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons, 67 FR
41455 (June 18, 2002) (DOJ Recipient LEP Guidance).
This guidance document is published pursuant to Executive Order
13166 and reflects the Assistant Attorney General's
[[Page 21760]]
October 26, 2001, clarifying memorandum.
III. Covered Recipients
DHS regulations, 6 CFR 21.5(b)(2) and 44 CFR 7.5(b), require all
recipients of Federal financial assistance from DHS to provide
meaningful access to LEP persons.\4\ Federal financial assistance
includes grants, training, use of equipment, donations of surplus
property, and other assistance. Examples of recipients of DHS
assistance include, but are not limited to:
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\4\ Pursuant to Executive Order 13166, the meaningful access
requirement of the Title VI regulations and the four-factor analysis
set forth in the DOJ Agency LEP Guidance are to additionally apply
to the programs and activities of Federal agencies, including DHS.
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a. State and local fire departments;
b. State and local police departments;
c. State and local emergency management agencies;
d. State and local governments, together with certain qualified
private non-profit organizations, when they receive assistance pursuant
to a Presidential declaration of disaster or emergency;
e. Certain non-profit agencies that receive funding under the
Emergency Food and Shelter Program;
f. Mass transit authorities;
g. Community Emergency Response Teams (CERT), which conduct
training and other activities to enhance individual, community, family,
and workplace preparedness;
h. State and local departments that operate jails and prisons;
i. Coast Guard assisted boating safety programs;
j. Entities that receive specialized training through the Federal
Law Enforcement Training Center (FLETC);
k. Intercity bus programs; and
l. State motor vehicle departments.
The Catalogue of Federal Domestic Assistance (CFDA) contains
current information on DHS Federal financial assistance and can be
found at http://www.cfda.gov/. Sub-recipients likewise are covered when
Federal funds are passed through from one recipient to a sub-recipient.
Coverage extends to a recipient's entire program or activity, i.e.
to all parts of a recipient's operations. This is true even if only one
part of the recipient receives the Federal assistance.\5\ For example,
if DHS provides assistance to a particular division of a State
emergency management agency to improve planning capabilities in that
division, all of the operations of the entire State emergency
management agency--not just the particular division--are covered.
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\5\ If, however, a Federal agency were to decide to terminate
Federal funds based on noncompliance with Title VI or its
regulations, this result would affect only funds directed to the
particular non-compliant program or activity.
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Finally, some recipients operate in jurisdictions in which English
has been declared the official language. Nonetheless, DHS recipients
continue to be subject to Federal non-discrimination requirements
including those applicable to access to and provision of Federally
assisted programs and activities to persons with limited English
proficiency.
IV. Limited English Proficient Individual
Individuals who do not speak English as their primary language and
those who have a limited ability to read, write, speak, or understand
English can be limited English proficient, or ``LEP,'' and 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 DHS recipients and should be considered
when planning language services include but are not limited to:
a. Persons who require the aid of a local or State police or fire
department, or other emergency services;
b. Persons who seek assistance at airports that receive TSA funds;
c. Persons who are applying for assistance under a FEMA or State
disaster relief program;
d. Persons who seek to enroll in a safe boating course that is
offered by a State receiving funds;
e. Persons who use mass transit services such as buses or subways
that receive DHS financial assistance;
f. Persons subject to or serviced by law enforcement activities,
including for example, suspects, violators, witnesses, victims, those
subject to immigration-related investigations by recipient law
enforcement agencies, agencies, and community members seeking to
participate in crime prevention and awareness activities; or
g. Parents and family members of LEP individuals.
V. Recipient Determination of the Extent of Its Obligation To Provide
LEP Services
Recipients are required to take reasonable steps to ensure
meaningful access to their programs and activities by LEP persons.
While designed to be a flexible and fact-dependent standard, the
starting point is an individualized assessment that balances the
following four factors:
1. The number or proportion of LEP persons eligible to be served or
likely to be encountered by the program or grantee;
2. The frequency with which LEP individuals come in contact with
the program;
3. The nature and importance of the program, activity, or service
provided by the program to people's lives; and
4. The resources available to the grantee/recipient and costs.
As indicated above, the intent of this guidance is to suggest a
balance that ensures meaningful access by LEP persons to critical
services while not imposing undue burdens on small business, small
local governments, or small non-profits.
After applying the above four-factor analysis, a recipient may
conclude that different language assistance measures are sufficient for
the different types of programs or activities in which it engages. For
instance, some of a recipient's activities will be more important than
others and/or have greater impact on or contact with LEP persons, and
thus may require more in the way of language assistance. The
flexibility that recipients have in addressing the needs of the LEP
populations they serve does not diminish, and should not be used to
minimize, the obligation that those needs be addressed. DHS recipients
should apply the four factors to the various kinds of contacts that
they have with the public to assess language needs and decide what
reasonable steps they should take to ensure meaningful access for LEP
persons.
1. The Number or Proportion of LEP Persons Served or Encountered in the
Eligible Service Population
One factor in determining what language services recipients should
provide is the number or proportion of LEP persons from a particular
language group served or encountered in the eligible service
population. The greater the number or proportion of these LEP persons,
the more likely language services are needed. Ordinarily, persons
``eligible to be served, or likely to be directly affected, by'' a
recipient's program or activity are those who are served or encountered
in the eligible service population. This population will be program-
specific, and includes persons who are in the geographic area that has
been approved by a Federal grant agency as the recipient's service
area. However, where, for instance, a fire station serves a large LEP
population, the appropriate service area
[[Page 21761]]
is most likely the area served by that station, and not the entire
population served by the agency. 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. When considering the number or proportion
of LEP individuals in a service area, recipients should consider LEP
parent(s) when their English-proficient or LEP minor children and
dependents access or encounter the recipients' services.
Recipients should first examine their prior experiences with LEP
encounters and determine the breadth and scope of language services
that were needed. In conducting this analysis, it is important to
include language minority populations that are eligible for their
programs or activities but may be underserved because of existing
language barriers. Other data should be consulted to refine or validate
a recipient's prior experience, including the latest census data for
the area served, and data from school systems, community organizations,
and State and local governments.\6\ Community agencies, school systems,
religious organizations, legal aid entities, and others can often
assist in identifying populations for whom outreach is needed and who
would benefit from the recipients' programs and activities if language
services were provided.
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\6\ The focus of the analysis is on lack of English proficiency,
not the ability to speak more than one language. Note that
demographic data may indicate the most frequently spoken languages
other than English and the percentage of people who speak that
language who speak or understand English less than well. Some of the
most commonly spoken languages other than English may be spoken by
people who are also overwhelmingly proficient in English. Thus, they
may not be the languages spoken most frequently by limited English
proficient individuals. When using demographic data, it is important
to focus in on the languages spoken by those who are not proficient
in English.
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2. The Frequency With Which LEP Individuals Come in Contact With the
Program
Recipients should assess, as accurately as possible, the frequency
with which they have or should have contact with an LEP individual from
different language groups seeking assistance. The more frequent the
contact with a particular language group, the more likely that enhanced
language services in that language are needed. The steps that are
reasonable for a recipient that serves an LEP person on a one-time
basis will be very different than those expected from a recipient that
serves LEP persons daily. Many police departments and mass transit
authorities, for example, may expect high rates of contact with LEP
individuals. It is also advisable to consider the frequency of
different types of language contacts. Frequent contacts with Spanish-
speaking people who are LEP, for example, may require certain
assistance in Spanish. Less frequent contact with different language
groups may suggest a different and less intensified solution. If an LEP
individual accesses a program or service on a daily basis, a recipient
has greater duties than if the same individual's program or activity
contact is unpredictable or infrequent. But even recipients that serve
LEP persons on an unpredictable or infrequent basis should use this
balancing analysis to determine what to do if an LEP individual seeks
services under the program in question. This plan need not be
intricate. It may be as simple as being prepared to use a commercially
available telephonic interpretation service to obtain immediate
interpreter services. In applying this standard, recipients should take
care to consider whether appropriate outreach to LEP persons could
increase the frequency of contact with LEP language groups.
3. The Nature and Importance of the Program, Activity, or Service
Provided by the Program
The more important the activity, information, service, or program,
or the greater the possible consequences of the contact to the LEP
individuals, the more likely language services are needed. The
obligations to communicate with individual disaster applicants or to
provide fire safety information to residents of a predominantly LEP
neighborhood differ, for example, from those to provide recreational
programming on the part of a municipal parks department receiving
disaster aid. 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. In particular,
recipients that provide services and benefits or operate in the context
of emergency preparedness; response and recovery; health and safety;
and law enforcement should be prepared to provide language services
whenever serving or encountering LEP persons. In addition, decisions by
a Federal, State, or local entity to make an activity compulsory, such
as the requirement to complete an application to receive certain State
disaster assistance benefits, can serve as strong evidence of the
program's importance.
4. The Resources Available to the Recipient and Costs
A recipient's level of resources and the costs that would be
imposed on it may have an impact on the nature of the steps it should
take. Smaller recipients with more limited budgets are not expected to
provide the same level of language services as larger recipients with
larger budgets. In addition, ``reasonable steps'' may cease to be
reasonable where the costs imposed substantially exceed the benefits.
Resource and cost issues, however, can often be reduced by
technological advances; the sharing of language assistance materials
and services among and between recipients, advocacy groups, and Federal
grant agencies; and reasonable business practices. Where appropriate,
training bilingual staff to act as interpreters and translators,
information sharing through industry groups, telephonic and video
conferencing interpretation services, pooling resources and
standardizing documents to reduce translation needs, using qualified
translators and interpreters to ensure that documents need not be
``fixed'' later and that inaccurate interpretations do not cause delay
or other costs, centralizing interpreter and translator services to
achieve economies of scale, or the formalized use of qualified
community volunteers may, for example, help reduce costs.\7\ Recipients
should carefully explore the most cost-effective means of delivering
competent and accurate language services before limiting services due
to resource concerns. Large entities and those entities serving a
significant number or proportion of LEP persons should ensure that
their resource limitations are well-substantiated before using this
factor as a reason to limit language assistance. Such recipients may
find it useful to be able to articulate, through documentation or in
some other reasonable manner, their process for determining that
language services would be limited based on resources or costs.
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\7\ Small recipients with limited resources may find that
entering into a bulk telephonic interpretation service contract will
prove cost effective.
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This four-factor analysis necessarily implicates the ``mix'' of LEP
services required. Recipients have two main ways to provide language
services: oral and written.
Oral interpretation either in person or via telephone
interpretation service (hereinafter ``interpretation''): Oral
interpretation can range from on-site interpreters for critical
services
[[Page 21762]]
provided to a high volume of LEP persons to access through commercially
available telephonic interpretation services.
Written translation (hereinafter ``translation''): 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 fire
department in a largely Hispanic community may need oral interpreters
immediately available and should give serious consideration to hiring
some bilingual staff. (Of course, many fire departments have already
made such arrangements). In contrast, there may be circumstances where
the importance and nature of the activity and number or proportion and
frequency of contact with LEP persons may be low and the costs and
resources needed to provide language services may be high, such as in
the case of a voluntary general public tour of a firehouse, 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, so
long as the fundamental obligation of providing meaningful access to
LEP persons is met.
VI. Selecting Language Assistance Services
Recipients have two main ways to provide language services, namely,
oral and written language services. Quality and accuracy of the
language service is critical in order to avoid serious consequences to
the LEP person and to the recipient.
A. Oral Language Services (Interpretation)
Interpretation is the act of listening to something in one language
(source language) and orally translating it into another language
(target language). Where interpretation is needed and is reasonable,
recipients should consider some or all of the following options for
providing competent interpreters in a timely manner.
Competence of Interpreters. When providing oral assistance,
recipients should ensure competency of the language service provider,
no matter which of the strategies outlined below are used. Competency
requires more than self-identification as bilingual. Some bilingual
staff and community volunteers, for instance, may be able to
communicate effectively in a different language when communicating
information directly in that language, but not be competent to
interpret in and out of English. Likewise, they may not be able to do
written translations.
Competency to interpret, however, does not necessarily mean formal
certification as an interpreter, although certification is helpful.
When using interpreters, recipients should ensure that they:
Demonstrate proficiency in, and ability to communicate
information accurately in, both English and in the other language, and
identify and employ the appropriate mode of interpreting (e.g.,
consecutive, simultaneous, or sight translation);
Have knowledge in both languages of any specialized terms
or concepts peculiar to the entity's program or activity and of any
particularized vocabulary and phraseology used by the LEP person;\8\
and understand and follow appropriate confidentiality and impartiality
rules; and
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\8\ Many languages have ``regionalisms,'' or differences in
usage. For instance, a word that may be understood to mean something
in Spanish for someone from Cuba may not be so understood by someone
from Mexico. In addition, because there may be languages which do
not have an appropriate direct interpretation of some disaster-
specific, nautical or legal terms, for example, the interpreter
should be so aware and be able to provide the most appropriate
interpretation. The interpreter should likely make the recipient
aware of the issue and the interpreter and recipient can then work
to develop a consistent and appropriate set of descriptions of these
terms in that language that can be used again, when appropriate.
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Understand and adhere to their role as interpreters
without deviating into a role as a counselor, legal advisor, or other
roles (particularly during the assistance application process, in
administrative hearings, or public safety contexts).
Some recipients, such as certain private nonprofit organizations or
administrative courts, may have additional self-imposed requirements
for interpreters. Where individual rights depend on precise, complete,
and accurate interpretation or translations, such as in the context of
law enforcement encounters, application for disaster or food and
shelter assistance, or administrative hearings, the use of certified
interpreters is strongly encouraged.\9\ Where the process is lengthy,
the interpreter will likely need breaks and team interpreting may be
appropriate to ensure accuracy and to prevent errors caused by mental
fatigue of interpreters.
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\9\ For those languages or interpretation settings for which no
formal accreditation or certification currently exists, recipients
should consider a formal process for establishing the credentials of
the interpreter.
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While the quality and accuracy of language services is critical,
the quality and accuracy of language services is nonetheless part of
the appropriate mix of LEP services required. The quality and accuracy
of language services at a State-operated emergency assistance center,
for example, must be extraordinarily high, while the quality and
accuracy of language services in recreational programs sponsored by a
DHS recipient need not meet the same exacting standards.
Finally, when interpretation is needed and is reasonable, it should
be provided in a timely manner. To be meaningfully effective, language
assistance should be timely. While there is no single definition for
``timely'' applicable to all types of interactions at all times by all
types of recipients, one clear guide is that the language assistance
should be provided at a time and place that avoids the effective denial
of the service, benefit, or right at issue or the imposition of an
undue burden on or delay in important rights, benefits, or services to
the LEP person. For example, when the timeliness of services is
important, such as with certain activities of DHS recipients providing
evacuation coordination, food and shelter, medical care, fire and
rescue services, and when important legal rights are at issue, a
recipient would more likely be providing meaningful access if it has
immediate access to competent bilingual staff or on-site or telephonic
interpreters, since these services can prevent delays for LEP persons
that would be significantly greater than those for English proficient
persons. Conversely, where access to or exercise of a service, benefit,
or right is not effectively precluded by a reasonable delay, language
assistance can likely be delayed for a reasonable period.
Hiring Bilingual Staff. When particular languages are
encountered often, hiring bilingual staff offers one of the best, and
often most economical, options. Recipients can, for example, fill
public contact and other positions involving potential contact with LEP
individuals, such as 911 operators, law enforcement officers, fire
safety educators, or application takers, with
[[Page 21763]]
staff who are bilingual and competent to communicate directly with LEP
persons in their language. If bilingual staff are 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. Effective management
strategies, including any appropriate adjustments in assignments and
protocols for using bilingual staff, can ensure that bilingual staff
are fully and appropriately utilized. When bilingual staff cannot meet
all of the language service obligations of the recipient, the recipient
should turn to other options.
Hiring Staff Interpreters. Hiring interpreters may be most
helpful where there is a frequent need for interpreting services in one
or more languages. Depending on the facts, sometimes it may be
necessary and reasonable to provide such on-site interpreters in order
to assure accurate and meaningful communication with an LEP person.
Contracting for Interpreters. Contract interpreters may be
a cost-effective option when there is no regular need for interpreters
in a particular language. In addition to commercial and other private
providers, many community-based organizations and mutual assistance
associations provide interpretation services for particular languages.
Contracting with and providing training regarding the recipient's
programs and processes to these organizations can be a cost-effective
option for providing language services to LEP persons from those
language groups.
Using Telephone Interpreter Lines. Telephone interpreter
service lines often offer speedy interpreting assistance in many
different languages. They may be particularly appropriate where the
mode of communicating with an English proficient person would also be
over the phone. Although telephonic interpretation services are useful
in many situations, it is important to ensure that, when using such
services, the interpreters used are competent to interpret any
technical or legal terms specific to a particular program that may be
important parts of the conversation. Nuances in language and non-verbal
communication can often assist an interpreter and cannot be recognized
over the phone. Video teleconferencing may sometimes help to resolve
this issue where necessary. In addition, where documents are being
discussed, it is important to give telephonic interpreters adequate
opportunity to review the document prior to the discussion and any
logistical problems should be addressed. It is also important to ensure
that the equipment used is adequate and works appropriately and that
staff have training or knowledge in the use of such services.
Using Community Volunteers. In addition to consideration
of bilingual staff, staff interpreters, or contract interpreters
(either in person or by telephone) as options to ensure meaningful
access by LEP persons, use of recipient-coordinated community
volunteers, working with, for instance, community-based organizations,
may provide a cost-effective supplemental language assistance strategy
under appropriate circumstances. They may be particularly useful in
providing language access for a recipient's less crucial programs and
activities. To the extent the recipient relies on community volunteers,
it is often best to use volunteers who are trained in the information
or services of the program and can communicate directly with LEP
persons in their language. Just as with all interpreters, community
volunteers used to interpret between English speakers and LEP persons,
or to orally translate documents, should be competent in the skill of
interpreting and knowledgeable about applicable confidentiality and
impartiality rules. Recipients should consider formal arrangements with
community-based organizations that provide volunteers to address these
concerns and to help ensure that services are available more regularly.
Use of Family Members, Friends, or Other Applicants 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, in some
situations LEP persons, if they so desire, should be permitted to use,
at their own expense, an interpreter of their own choosing (whether a
professional interpreter, family member, friend, acquaintance, or other
applicant), 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, friend, fellow inmate, or
other applicant 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, however, should take special care to ensure that
family, legal guardians, caretakers, and other informal interpreters
are appropriate in light of the circumstances and subject matter of the
program, service or activity, including protection of the recipient's
own administrative or mission-related interests in accurate
interpretation. In many circumstances, family members, friends, or
other applicants are not competent to provide quality and accurate
interpretations. Issues of confidentiality, privacy, or conflict of
interest may also arise. LEP individuals may feel uncomfortable
revealing or describing sensitive, confidential, or potentially
embarrassing medical, law enforcement, family or financial information
to a family member, friend, acquaintance, or member of the local
community.\10\ In addition, such informal interpreters may have a
personal connection to the LEP person or an undisclosed conflict of
interest, such as the desire to obtain greater assistance than the LEP
person from a locally administered mitigation program. For these
reasons, when oral language services are necessary, recipients should
offer competent interpreter services free of cost to the LEP person.
For some DHS recipients, such as those carrying out law enforcement and
public safety operations and those performing disaster assistance
functions, this is particularly true. The same is true in processing
applications; conducting administrative hearings; managing situations
in which health, safety, or access to important 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 fire service officers investigate an alleged case
of arson. 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. Similarly,
[[Page 21764]]
where an emergency medical technician responds to the scene of reported
domestic violence, care must be taken to avoid using a family member
for interpretation who is the alleged perpetrator.
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\10\ For example, special circumstances of confinement may raise
additional serious concerns regarding the voluntary nature,
conflicts of interest, and privacy issues surrounding the use of
inmates as interpreters, particularly where an important right,
benefit, service, disciplinary concern, or access to personal or law
enforcement information is at stake. In some situations, inmates
could potentially misuse information they obtained in interpreting
for other inmates. In addition to ensuring competency and accuracy
of the interpretation, recipients should take these special
circumstances into account when determining whether an inmate makes
a knowing and voluntary choice to use another inmate as an
interpreter.
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The use of children is strongly discouraged except in very limited
and temporary situations involving an emergency impacting life and
safety when appropriate language services are not otherwise readily
available.
While issues of competency, confidentiality, and conflict of
interest in the use of family members, friends, or other applicants
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
educational tour of a firehouse offered to the general public. There,
the importance and nature of the activity may be relatively low and
unlikely to implicate issues of confidentiality, conflict of interest,
or the need for accuracy. In addition, the resources needed and costs
of providing language services may be high. In such a setting, an LEP
person's use of family (except children), friends, or others may be
appropriate.
If the LEP person voluntarily chooses to provide his or her own
interpreter, a recipient should consider whether a record of that
choice, the recipient's offer of assistance, and the recipient's
explanation of the risks of declining the offer of interpretation and
the benefits of accepting such services is appropriate. Where precise,
complete, and accurate interpretations or translations of information
and/or testimony are critical for law enforcement, adjudicatory or
legal reasons, or where the competency of the LEP person's interpreter
is not established, a recipient might decide it must provide its own,
independent interpreter, even if an LEP person wants to use his or her
own interpreter as well. When the recipient allows an individual to use
his or her own interpreter and the recipient does not provide its own,
the recipient should take care to ensure that the LEP person's choice
is voluntary and informed and that the LEP person knows that the
recipient at no cost would provide a competent interpreter in a timely
manner.
B. Written Language Services (Translation)
Translation is the replacement of a written text from one language
(source language) into an equivalent written text in another language
(target language).
What Documents Should Be Translated? After applying the four-factor
analysis, a recipient may determine that an effective LEP plan for its
particular program or activity includes the translation of vital
written materials into the language of each frequently encountered LEP
group eligible to be served and/or likely to be affected by the
recipient's program. Such written materials could include, for example:
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 disciplinary action;
Notices advising LEP persons of free language assistance;
Procedural guidebooks; and
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 programs
would not generally be considered vital, whereas applications for
disaster assistance could be considered vital. Where appropriate,
recipients are encouraged to create a plan for consistently
determining, over time and across its various activities, what
documents are ``vital'' to the meaningful access of the LEP populations
they serve.
Classifying a document as vital or non-vital is sometimes
difficult, especially in the case of outreach materials like brochures
or other information on rights and services. Awareness of rights or
services is an important part of ``meaningful'' access. Lack of
awareness that a particular program, right, or service exists may
effectively deny LEP individuals meaningful access. Thus, where a
recipient is engaged in community outreach activities in furtherance of
its activities, it should regularly assess the needs of the populations
frequently encountered or affected by the program or activity to
determine whether certain critical outreach materials should be
translated. Organizations such as civil rights and immigrant groups,
legal service providers, and religious organizations are a few examples
of entities that can provide information to recipients that 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, religious, and community organizations to spread a
message.
Sometimes a document includes both vital and non-vital information.
This may be the case when the document is very large. It may also be
the case when the title and a phone number for obtaining more
information on the contents of the document in frequently-encountered
languages other than English is critical, but the document is sent out
to the general public and cannot reasonably be translated into many
languages. Thus, vital information may include, for instance, the
provision of information in appropriate languages other than English
regarding where a LEP person might obtain an interpretation or
translation of the document.
Into What Languages Should Documents Be Translated? The languages
spoken by the LEP individuals with whom the recipient has contact
determine the languages into which vital documents should be
translated. A distinction should be made however, between languages
that are frequently encountered by a recipient and less commonly
encountered languages. Many recipients serve communities in large
cities or across the country. They regularly serve LEP persons who
speak dozens and sometimes over 100 different languages. To translate
all written materials into all of those languages is unrealistic.
Although recent technological advances have made it easier for
recipients to store and share translated documents, such an undertaking
would incur substantial costs and require substantial resources.
Nevertheless, well-substantiated claims of lack of resources to
translate all vital documents into dozens of languages do not
necessarily relieve the recipient of the obligation to translate those
documents into at least several of the more frequently-encountered
languages and to set benchmarks for continued translations into the
remaining 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 often a one-time expense,
consideration
[[Page 21765]]
should be given to whether the upfront costs 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.
Recipients may benefit from developing a systemic process for
identifying and prioritizing documents for translation.
Safe Harbor. Many recipients would like to ensure with greater
certainty that they comply with their obligations to provide written
translations in languages other than English. Paragraphs (a) and (b)
outline the circumstances that can provide a ``safe harbor'' for
recipients regarding the requirements for translation of written
materials. A ``safe harbor'' means that if a recipient provides written
translations under these circumstances, such action will be considered
strong evidence of compliance with the recipient's written-translation
obligations.
The failure to provide written translations under the circumstances
outlined in paragraphs (a) and (b) does not mean there is non-
compliance. Rather, those paragraphs provide a common starting point
for recipients to consider whether and at what point they will provide
written translations. 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.
Even if the safe harbors are not used, if written translation of a
certain document(s) would be so burdensome as to defeat the legitimate
objectives of its program, the translation of the written materials is
not necessary. Other ways of providing meaningful access, such as
effective oral interpretation of certain vital documents, might be
acceptable under such circumstances.
Pursuant to the safe harbor provisions, the following actions will
be considered strong evidence of compliance with the recipient's
written-translation obligations:
a. The DHS recipient provides written translations of vital
documents for each eligible LEP language group that constitutes five
percent or 1,000, whichever is less, of the population of persons
eligible to be served or likely to be affected or encountered.
Translation of other documents, if needed, can be provided orally; or,
b. If there are fewer than 50 persons in a language group that
reaches the five percent trigger in the above, the recipient does not
translate vital written materials but provides written notice in the
primary language of the LEP language group of the right to receive
competent oral interpretation of those written materials, free of cost.
These safe harbor provisions apply to the translation of written
documents only. They do not affect the requirement to provide
meaningful access to LEP individuals through competent oral
interpreters where oral language services are needed and are
reasonable.
Competence of Translators. As with oral interpreters, translators
of written documents should be competent. Many of the same
considerations apply. However, the skill of translating is very
different from the skill of interpreting, and a person who is a
competent interpreter may or may not be competent to translate.
Particularly where 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.\11\ Having a second, independent translator ``check'' the
work of the primary translator can often ensure competence.\12\
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.''
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\11\ For those languages in which no formal accreditation
currently exists, a particular level of membership in a professional
translation association can provide some indicator of
professionalism.
\12\ Indeed, it is a recommended practice to have all translated
documents proofread by a second professional translator and many
companies offering translations do this as part of their quality
review process.
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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 material results in a translation that is written at a
much more difficult level than the English language version or has no
relevant equivalent meaning.\13\ Community organizations may be able to
help consider whether a document is written at a good level for the
audience. Likewise, consistency in the words and phrases used to
translate terms of art, legal, or other technical concepts helps avoid
confusion by LEP individuals and may reduce costs. Creating or using
already-created glossaries of commonly used terms may be useful for LEP
persons and translators and cost effective for the recipient. Providing
translators with examples of previous accurate translations of similar
material by the recipient, other recipients, or Federal agencies may be
helpful.
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\13\ For instance, there may be languages which do not have an
appropriate direct translation of some legal or program-specific
terms and the translator should be able to provide an appropriate
translation. The translator should likely also make the recipient
aware of this. Recipients can then work with translators to develop
a consistent and appropriate set of descriptions of these terms in
that language that can be used again, when appropriate.
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While quality and accuracy of translation services is critical, the
quality and accuracy of translation services is nonetheless part of the
appropriate mix of LEP services required. For instance, documents that
are simple and have no legal or other consequence for LEP persons who
rely on them may use translators that are less skilled than important
documents with legal or other information upon which reliance has
important consequences (including, e.g., information or documents of
DHS recipients regarding certain law enforcement, health, and safety
services and certain legal rights). 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 Plan on Language Assistance for LEP
Persons
After deciding what language assistance services are appropriate, a
recipient should develop policies and an implementation plan to address
the identified needs of the LEP populations they serve. Recipients have
considerable flexibility in developing both the plan and the policy.
The development and maintenance of a periodically-updated written plan
on language assistance for LEP persons (``LEP plan'') for use by
recipient employees serving the public will likely be the most
appropriate and cost-effective means of documenting compliance and
providing a framework for the provision of timely and reasonable
language assistance. Moreover, 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 LEP plan their language
assistance services, and how staff and LEP persons can access those
services. Despite these benefits, certain DHS recipients, such as
recipients serving very few LEP persons and recipients with very
limited resources, may choose not to develop a written LEP plan.
However, the absence of a written LEP plan does not obviate the
underlying obligation to ensure meaningful access by LEP persons to a
recipient's program
[[Page 21766]]
or activities. Accordingly, in the event that a recipient elects not to
develop a written plan but may encounter LEP persons, it should have a
policy explaining that it is committed to providing meaningful access
to LEP persons, and should consider alternative ways to articulate in
some other reasonable manner a plan for providing meaningful access,
including informing staff and LEP persons of how language services will
be provided. Entities having significant contact with LEP persons, such
as schools, religious organizations, community groups, and groups
working with new immigrants can be very helpful in providing important
input into this planning process from the beginning. The following five
steps may be helpful in designing an LEP plan and are typically part of
effective implementation plans:
1. Identifying LEP Individuals Who Need Language Assistance
The first two factors in the four-factor analysis require an
assessment of the number or proportion of LEP individuals eligible to
be served or encountered and the frequency of encounters. This requires
recipients to identify LEP persons with whom it has contact.
One way to determine the language of communication is to use
language identification cards (or ``I speak'' cards), which invite LEP
persons to identify their language needs to staff. Such cards, for
instance, might say, ``I speak Spanish'' in both Spanish and English,
``I speak Vietnamese'' in both English and Vietnamese, etc. To reduce
costs of compliance, the Federal Government has made a set of these
cards available on the Internet. The Census Bureau ``I speak'' card can
be found and downloaded at http://www.lep.gov. The DHS Office for Civil
Rights and Civil Liberties (CRCL) also makes ``I speak'' booklets
available to recipients upon request. (Contact information is provided
below). Recipients will also be able to download a PDF of the ``I
speak'' booklet and a poster from the CRCL Web site (http:www.dhs.gov/CRCL) and LEP.gov (http://www.lep.gov), which can be printed and
posted. 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.
2. Language Assistance Measures
An effective LEP plan would likely include establishing policies
for interactions between the recipient and LEP persons and 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 individuals who have in-person
contact with recipient staff; and
How to ensure competency of interpreters and translation
services.
3. Distribution of Plan and Training for Staff
Staff should know their obligations to provide meaningful access to
information and services for LEP persons. Thus, recipients should
distribute the plan to all appropriate staff. An effective LEP plan
would also likely include training to ensure that:
Staff knows about LEP policies and procedures; and
Staff having contact with the public, or with individuals
in the recipient's custody, 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, as well as employees who
potentially interact with individuals in the 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 need to be aware of an
LEP plan. However, management staff, even if they do not interact
regularly with LEP persons, should be fully aware of and understand the
plan so they can reinforce its importance and ensure its implementation
by staff.
4. Providing Notice to LEP Persons
Once an 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 LEP
persons will understand. Examples of notification that recipients
should consider include:
Posting signs in intake areas and other entry points. When
language assistance is needed to ensure meaningful access to
information and services, it is important to provide notice in
appropriate languages in intake areas or at initial points of contact
so that LEP persons can learn how to access those language services.
This is particularly true in areas with high volumes of LEP persons
seeking access to certain assistance, such as disaster, law
enforcement, medical, or other critical assistance from DHS recipients.
For instance, signs in intake offices could state that free language
assistance is available. The signs should be translated into the most
common languages encountered. They should explain how to get the
language help.\14\
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\14\ The Social Security Administration has made such signs
available at http://www.ssa.gov/multilanguage/langlist1.htm. The
Federal Emergency Management Agency (FEMA) has made a similar sign
available at Disaster Recovery Centers for disaster assistance
applicants to identify the language they speak. Once the applicants
for FEMA benefits identify their language preference they can access
simultaneous interpretation services when registering for assistance
or requesting the status of the disaster assistance application over
the phone. These signs could, for example, be modified for
applicant's use.
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Stating in outreach documents that language services are
available from the agency. Announcements could be in, for instance,
brochures, booklets, and 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 community-based 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.
Presentations and/or notices at schools and religious
organizations.
Moreover, it is important for recipients to provide notice of its
complaint procedures, including how to file
[[Page 21767]]
complaints with the DHS Office for Civil Rights and Civil Liberties
(CRCL) and FEMA's Office of Equal Rights.\15\ Complaints alleging that
a recipient has failed to provide meaningful access to the recipient's
programs and services or in its encounters with LEP persons may be sent
to CRCL in any language as follows:
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\15\ Per 6 CFR part 21 and 44 CFR 7.5(b), complaints involving
recipients of financial assistance from FEMA can be sent directly to
FEMA at: FEMA Office of Equal Rights; 300 D St., SW., Washington, DC
20472-3505. FEMA complaints received by the Office for Civil Rights
and Civil Liberties will be forwarded to FEMA for response and/or
investigation. Information on FEMA grant and assistance programs may
be found at http://www.FEMA.gov/government/grant/index.
Mailing Address: Department of Homeland Security, Office for Civil
Rights and Civil Liberties, Review and Compliance, 245 Murray Lane,
SW., Building 410, Mail Stop 0190, Washington, DC 20528.
Telephone/Fax: Local: 202-401-1474, Toll Free: 1-866-644-8360,
Local TTY: 202-401-0470, Toll Free TTY: 1-866-644-8361, Fax: 202-401-
4708.
E-mail Address: [email protected].
5. Monitoring and Updating the LEP Plan.
Recipients should, where appropriate, have a process for
determining, on an ongoing basis, whether new documents, programs,
services, and activities need to be made accessible for LEP
individuals. Additionally, they may want to provide notice of any
changes in services to the LEP public and to employees. DHS encourages
recipients to keep updated disaggregated data on LEP persons
encountered and the languages spoken. In addition, recipients should
consider whether changes in demographics, types of services, or other
needs require annual reevaluation of their LEP plan. Less frequent
reevaluation may be more appropriate where demographics, services and
needs are more static. One good way to evaluate the LEP plan is to seek
feedback from the community, including civil rights groups and
immigrant organizations. In their reviews recipients may want to
consider assessing changes in the following:
Current LEP populations in service area or population
affected or encountered;
Frequency of encounters with LEP language groups;
Nature and importance of activities to LEP persons;
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 LEP plan and how
to implement it; and
Whether identified sources for assistance are still
available and viable.
In addition to these five elements, effective plans set clear goals,
management accountability, and opportunities for community input and
planning throughout the process.
Recipients are encouraged to partner with or consult with community
based organizations in assessing the need to have written plans, and in
developing and implementing these LEP plans.
VIII. Voluntary Compliance Effort
The goal for Title VI regulatory enforcement is to achieve
voluntary compliance. The requirement to provide meaningful access to
LEP persons is enforced and implemented by DHS 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 DHS will investigate when it
receives a complaint, report, or other information that alleges or
indicates possible noncompliance with Title VI or its regulations.\16\
If the investigation results in a finding of compliance, DHS will
inform the recipient in writing of this determination, including the
basis for the determination. However, if a complaint is fully
investigated and results in a finding of noncompliance, DHS must inform
the recipient of the noncompliance through a Letter of Findings that
sets out the areas of noncompliance and the steps that must be taken to
correct the noncompliance. It must attempt to secure voluntary
compliance through informal means. If the matter cannot be resolved
informally, DHS must secure compliance through the termination of
Federal assistance after the DHS recipients have been given an
opportunity for an administrative hearing and/or by referring the
matter to the Department of Justice Civil Rights Division to seek
injunctive relief or other enforcement proceedings. DHS engages in
voluntary compliance efforts and provides technical assistance to
recipients at all stages of an investigation. During these efforts, DHS
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, DHS's primary concern is to ensure that the recipient's
policies and procedures provide meaningful access for LEP persons to
the recipient's programs and activities.
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\16\ Id.
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While all recipients must work toward building systems that will
ensure access for LEP individuals, DHS acknowledges that the
implementation of a comprehensive system to serve LEP individuals is a
process and that a system will evolve over time as it is implemented
and periodically reevaluated. As recipients take reasonable steps to
provide meaningful access to Federally assisted programs and activities
for LEP persons, DHS 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, DHS recipients should ensure that the provision of
appropriate assistance for significant LEP populations or with respect
to activities having a significant impact on the health, safety, legal
rights, or livelihood of beneficiaries is addressed first. To
facilitate compliance efforts, recipients are encouraged to document
their efforts to provide LEP persons with meaningful access to these
and other Federally assisted programs and activities.
IX. Application to Specific Types of Recipients
This guidance is issued for recipients that receive Federal funds
and other Federal assistance from DHS. There may be cases in which
entities receive Federal funds from other Federal agencies as well as
from DHS. Entities that receive funding from other Federal agencies may
also look to the LEP guidance issued by those agencies, which are
consistent with the DHS Guidance. Other Federal agencies that have
issued similar guidance with regard to limited English proficient
persons include the Departments of Commerce, Education, Energy, Health
and Human Services, Housing and Urban Development, Justice, Interior,
Labor, State, Transportation, Treasury, and Veterans Affairs, and the
[[Page 21768]]
Environmental Protection Agency. An updated listing of Federal agencies
that have published LEP Guidance can be found at http://www.lep.gov/.
The DOJ Recipient LEP Guidance in particular provides many helpful
examples of how to apply the four-factor analysis when making decisions
about the need for translating documents, obtaining interpreter, and
hiring bilingual staff. See 67 FR 41466 (June 18, 2002). Recipients may
also benefit from learning about the enforcement actions of several
agencies since the DOJ Guidance was first issued in 2002. For example,
DOJ has entered into several agreements that are available online at
http://www.lep.gov. In addition, HHS has resolved several LEP
enforcement actions against health service providers. Those resolution
agreements are available at http://www.hhs.gov/ocr/civilrights/activities/examples/LEP/index.html. In any compliance and enforcement
activity, DHS will review the facts and circumstances pertaining to the
recipient to determine whether the recipient has complied with its
obligations under this guidance.
Area-specific guidance and LEP planning tools for a number of types
of recipients, including municipal governments, law enforcement
agencies, and recipients engaged in emergency preparedness can be found
at http://www.lep.gov/resources/resources.html. Recipients are
encouraged to avail themselves of these resources. In addition, the
Office for Civil Rights and Civil Liberties is available to provide
technical assistance to recipients on the provision of language
services to LEP persons served or encountered in a recipient's program.
As explained in this guidance, all recipients of Federal financial
assistance from DHS must meet the obligation to take reasonable steps
to ensure access to programs and activities by LEP persons. This
guidance clarifies the Title VI regulatory obligation to address the
language needs of LEP persons, in appropriate circumstances and in a
reasonable manner by applying the four-factor analysis. In the context
of emergency planning and response, health and safety, and law
enforcement operations, where the potential for greater consequences
are at issue, DHS will look for strong evidence that recipients have
taken reasonable steps to ensure access.
Margo Schlanger,
Officer for Civil Rights and Civil Liberties.
[FR Doc. 2011-9336 Filed 4-15-11; 8:45 am]
BILLING CODE 9110-9B-P