[Federal Register Volume 79, Number 229 (Friday, November 28, 2014)]
[Rules and Regulations]
[Pages 70771-70784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27960]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 79, No. 229 / Friday, November 28, 2014 /
Rules and Regulations
[[Page 70771]]
DEPARTMENT OF AGRICULTURE
7 CFR Part 15
[OES-2014-0002]
RIN 051-AA70
Guidance to Federal Financial Assistance Recipients Regarding the
Title VI Prohibition Against National Origin Discrimination Affecting
Persons With Limited English Proficiency
AGENCY: Office of the Assistant Secretary for Civil Rights, USDA.
ACTION: Significant final guidance.
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SUMMARY: The U.S. Department of Agriculture (USDA) is publishing the
final guidance on the Title VI prohibition against national origin
discrimination as it affects limited English proficient persons.
Consistent with Title VI of the Civil Rights Act of 1964, as amended,
Title VI regulations, and Executive Order 13166, ``Improving Access to
Services for Persons with Limited English Proficiency (LEP),'' the
guidance clarifies the obligations of entities that receive Federal
financial assistance from USDA. The guidance does not create new
obligations, but, rather, provides guidance for USDA recipients in
meeting their existing obligations to provide meaningful access for LEP
persons.
DATES: This final guidance is effective November 28, 2014.
FOR FURTHER INFORMATION CONTACT: For further information contact Anna
G. Stroman, Chief, Policy Division, Telephone (202) 205-5953; Fax (202)
690-2345.
SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d-2000d-6 and the USDA implementing regulations at 7 CFR
part 15, subpart A, ``Nondiscrimination in Federally-Assisted Programs
of the Department of Agriculture Effectuation of Title VI of the Civil
Rights Act of 1964,'' provide that no person shall be discriminated
against on the basis of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be otherwise
subjected to discrimination under any program or activity of an
applicant or recipient receiving Federal financial assistance from the
Department of Agriculture or any Agency thereof. The purpose of this
guidance is to clarify the responsibilities of recipients and
subrecipients (recipients) who receive financial assistance from USDA
and to assist them in fulfilling their responsibilities to LEP persons
under Title VI of the Civil Rights Act of 1964, as amended, and the
implementing regulations. This guidance does not impose any new
requirements, but reiterates longstanding Title VI and regulatory
principles and clarifies USDA's position that, in order to avoid
discrimination against LEP persons on the ground of national origin,
recipients must take reasonable steps to ensure that LEP persons
receive the language assistance necessary to afford them meaningful
access to USDA programs and activities, free of charge.
On March 14, 2002, the Office of Management and Budget (OMB) issued
a Report to Congress entitled, ``Assessment of the Total Benefits and
Costs of Implementing Executive Order No. 13166: Improving Access to
Services for Persons with Limited English Proficiency.'' Among other
things, the Report recommended the adoption of uniform guidance across
all Federal agencies, with flexibility to permit tailoring to each
agency's specific recipients. Consistent with this OMB recommendation,
the Department of Justice (DOJ) published LEP Guidance for DOJ
recipients, which was drafted and organized to function as a model for
similar guidance by other Federal agencies. See 67 FR 41455 (June 18,
2002). Consistent with this directive, USDA has developed this final
guidance, which is designed to reflect the application of the DOJ
Guidance standards to the programs and activities of USDA recipients.
This guidance sets out the policies, procedures, and steps that
USDA recipients may take to ensure that LEP persons have meaningful
access to Federally assisted programs and activities and provides
examples of policies and practices that USDA may find violative of
Title VI and Title VI regulations.
It also sets out the general parameters for recipients in providing
translations of written materials, provides examples that illustrate
the importance of such translations, and describes the flexibility that
recipients have in meeting this obligation. For recipients who desire
greater specificity regarding written translations for LEP persons, the
guidance contains population thresholds. Use of these population
thresholds is not mandatory. The guidance explicitly states that the
failure to meet these population thresholds will not result in a
finding of noncompliance, but that USDA will review a number of other
factors in determining compliance.
The guidance also describes some of the methods recipients may use
to meet their obligation to provide, under certain circumstances,
competent oral interpretative services to LEP persons. It has been
determined that this guidance does not constitute a regulation subject
to the rulemaking requirements of the Administrative Procedure Act.
Comments on Proposed Guidance
On March 8, 2012, USDA published a proposed final Guidance in the
Federal Register which resulted in 18 public interest groups/firms
responding with over 160 comments and recommendations. The comments
and/or the recommendations are addressed as follows:
1. Recipient LEP Plan
We received five comments recommending that the Guidance should
require recipients to develop an LEP plan. USDA is cognizant of the
value of written LEP plans in documenting a recipient's compliance with
its obligation to ensure meaningful access by LEP persons, and in
providing a framework for the provision of reasonable and necessary
language assistance to LEP persons. USDA is also aware of the related
training, operational, and planning benefits most recipients would
derive from the generation and maintenance of an updated written
language assistance plan for use by its employees. In the large
majority of cases, the benefits flowing from a written language
assistance plan have caused or will likely cause recipients to develop,
with
[[Page 70772]]
varying degrees of detail, such written plans. Even small recipients
with limited contact with LEP persons would likely benefit from having
a plan in place to assure that, when the need arises, staff have a
written plan to turn to even if it addresses only how to access a
telephonic or community-based interpretation service when determining
what language services to provide and how to provide them.
However, the fact that the vast majority of USDA's recipients
already have or will likely develop a written LEP plan to reap its many
benefits does not necessarily mean that every recipient, however small
its staff, limited its resources, or focused its services, will realize
the same benefits and thus must follow an identical path. Without clear
evidence suggesting that the absence of written plans for every
recipient is impeding accomplishment of the goal of meaningful access,
USDA elects at this juncture to strongly recommend but not require
written language assistance plans. USDA stresses in this regard that
neither the absence of a requirement of written LEP plans in all cases
nor the election by an individual recipient against drafting a plan
obviates the underlying obligation on the part of each recipient to
provide, consistent with Title VI, the Title VI regulations, and this
Guidance, reasonable, timely, and appropriate language assistance to
the LEP populations each serves.
One commentator recommended that the Guidance should require
community involvement in developing the recipients' written LEP plans.
The Guidance currently contains language to encourage recipients to
involve the community in developing their written LEP plans. No
additional language is being added to address this recommendation.
2. USDA LEP Plan for Conducted Programs
We received 10 comments recommending that USDA develop its own LEP
Plan for Federally conducted programs to ensure that it is accessible
in USDA operations. USDA issued its Departmental Regulation 4330-005,
Prohibition Against National Origin Discrimination Affecting Persons
with Limited English Proficiency in Programs and Activities Conducted
by U.S. Department of Agriculture effective June 4, 2013. This
Departmental Regulation functions as USDA's LEP Plan and is publicly
available at http://www.ocio.usda.gov/document/ departmental-
regulation-4330-005.
3. Updating Automated Online Services
We received seven comments recommending the expansion of online
language assistance services. Some of the commenters specifically
identified programs providing essential services like food and shelter
to consumers, and cited the Social Security Web site as an example. In
response to this comment, USDA added a new subparagraph under Section
VI in the Guidance that recommends USDA recipients who provide online
communications and services to customers include in their LEP plans
their strategies for addressing language access needs. (See Section VI,
No. 5 Ensuring Online Automation Services).
4. Expansion of Language Beyond Spanish
We received 10 comments recommending that recipients translate
outreach material in non-English languages in addition to Spanish. We
agree that recipients must take into account the language or languages
of their LEP customers within their programs and specific locations.
Part V (B) of the Guidance indicates that considering the four-factor
analysis can be helpful for determining when to provide language
services, including translating vital written materials into additional
languages. Moreover, the Safe Harbor Provision in Part V (B) also
supports translation into non-Spanish languages when the ``LEP language
group constitutes 5 percent or 1,000, whichever is less, of the
population of persons eligible to be served or likely to be affected or
encountered.'' Nevertheless, we have added additional recommendations
that recipients post notices/links regarding the availability of
language assistance services in the most commonly encountered languages
for their programs and/or areas (See Section VI, Elements of Effective
Plan on Language Assistance for LEP Persons, No. 4, Notice to LEP
Persons).
5. ``Reasonable'' Steps
We received six comments stating that the Guidance standard that
requires recipients to take ``reasonable'' steps in providing LEP
persons with a meaningful opportunity to participate in Federally
funded educational programs is vague. Rather than have recipients
consider how to apply this standard, commenters recommended that the
standard should clarify that if an individual is LEP, interpretation
should always be deemed reasonable.
The Guidance provides criteria for recipients to consider when
deciding to provide language assistance services to LEP individuals.
Specifically, the Guidance provides specific steps that recipients may
take to ensure that LEP persons have meaningful access by utilizing a
balancing test as a starting point (See Section IV, ``How Does a
Recipient Determine the Extent of Its Obligation to Provide LEP
Services?''). The Guidance further defines the balancing test as an
individualized assessment that balances the following four factors:
a. The number or proportion of LEP persons eligible to be served or
likely to be encountered within the area serviced by the recipient;
b. The frequency with which LEP persons come in contact with the
program or activity;
c. The nature and importance of the program, activity, or service
to people's lives; and
d. The resources available to the recipient and costs.
The Guidance states that the four-factor analysis is a ``starting
point'' to help a recipient determine when the recipient is ``required
to take reasonable steps to ensure meaningful access to their programs
and activities by LEP persons.'' Given the flexibility of this standard
and its context-specific nature, it is inherently flexible to adjust
for the various populations, languages, programs, and activities
served. Consequently, we recognize that there are some instances when
interpreters constitute reasonable steps but we also acknowledge that
different scenarios may yield different results, based on the four-
factor analysis.
6. Interpreter and Translation Services
We received five comments on the use of interpreter and translation
services. Specifically, the comments received indicated that the
language in the Guidance should be changed or strengthened to clearly
state that USDA-funded recipients must use qualified interpreters and
provide free interpreter services to all LEP persons. The commenters
also noted that vital documents must also be translated by qualified
translators. We believe that the Guidance addresses the issue of
qualifications adequately under ``Competence of Interpreters (See
Section A ``Oral Language Services'') and that stronger language is not
needed nor added. However, to guarantee that recipients ensure the
competency of the language service provider, Office of the Assistant
Secretary for Civil Rights (OASCR) shall recommend that all recipients
include their strategy for utilizing competent and impartial
interpreters and translators in the LEP plans.
[[Page 70773]]
Two commenters focused on the use of children as interpreters. Both
commenters indicated that the use of children should not be allowed.
The Guidance, in accordance with DOJ requirements, cautions that ``in
many circumstances, family members, especially children, are not
competent to provide quality and accurate interpretations, as issues of
confidentiality, privacy, or conflict of interest may arise.'' This
language makes clear that children may only be used under the most
exigent of circumstances and only as a last-resort alternative. To
provide further clarity on this issue, we have modified the Guidance's
language to note that reliance on children is discouraged unless it is
an emergency situation that is not reasonably foreseeable. (See Section
V ``Selecting Language Assistance Services, Subsection, Use of Family
Members, Friends or Others as Interpreters.'')
7. Considering Low Literacy
We received six comments recommending that written communication by
the recipient (such as online translations and program applications) be
written so as to be understood by individuals with low literacy (such
as language directed to a 6th grade level). No change was made as
USDA's current policy follows the Federal plain written language
standards, which includes taking the audience's current level of
knowledge into account. (See section V, ``Language Assistance Services
and Competence of Translators'') to ensure that individuals with low
literacy level can understand written material.
8. Using Other Regulations To Set Minimum Thresholds for Translations
and Interpretations
We received nine comments recommending that the Department consider
using regulations or sub-regulatory guidance to set specific minimum
thresholds for translation and interpretation in particular programs
such as the Supplemental Nutrition Assistance Program; the Special
Supplemental Nutrition Program for Women, Infants, and Children; and
the Child Nutrition Program. No changes were made since the Guidance
offers a fact-dependent four-factor assessment to determine the extent
of a recipient's obligation to provide LEP services. Moreover, with
respect to translation, the Guidance outlines Safe Harbor Provisions,
actions that are considered strong evidence of compliance with the
recipient's written-translation obligation. (See section IV, ``How Does
a Recipient Determine the Extent of Its Obligation to Provide LEP
Services'' and section V ``Selecting Language Assistance Services.'')
However, to ensure that this issue is taken into further consideration,
OASCR will encourage USDA agencies to consider this recommendation in
their work with recipients, since the recipient's LEP plan would be the
proper vehicle to set specifics on the thresholds for translation and
interpretation stated in the Guidance.
9. Require Data Collection
We received 10 comments from various organizations on the need for
data collection, as well as the need to track and monitor receipt of
translation requests. The commenters specifically recommended that
recipients be required to collect language preference data on their LEP
beneficiaries and report this data to USDA on at least an annual basis.
In response to the comments received, while language preference
data is collected in connection with some assisted programs, making
language preference data collection an assisted program requirement
across-the-board would involve a mandatory requirement under a review
process beyond the Agency. However, we do note that effective recipient
LEP plans often incorporate a system for tracking and monitoring the
number of LEP persons served, language preferences, translations
provided, and other data points. But not mandating data collection for
all programs does not mean that such data cannot be required as
necessary. Federal regulations, such as 28 CFR 42.406, make clear that
data collection requests made during the course of compliance reviews
can be broad and provide ``for the collection of data and information
from applicants for and recipients of federal assistance sufficient to
permit effective enforcement of title VI.''
10. ``Summarization'' as Appropriate Mode of Interpretation
We received one comment on the use of ``summarization'' as an
appropriate mode of interpretation. The commenter expressed concern for
the competence of interpreters and their ability to summarize when
performing interpretations. The commenter indicated that interpreters
should refrain from summarizing because it allowed for the interpreter
to decide or evaluate on what is and what is not relevant. After
careful consideration of the comment received, no change will be made.
However, we recognize that summarization may not always be the ideal
mode of interpretation when complete and accurate renditions of the
communication are necessary. In keeping with the DOJ LEP Guidance, we
place summarization within the context of assessing the competency of
an interpreter. The DOJ Guidance states that recipients should ensure
that interpreters ``demonstrate[s] proficiency in an ability to
communicate information accurately in both English and in the other
languages and identify and employ the appropriate mode of interpreting
(e.g., consecutive, simultaneous, summarization, or sight
translation).'' In situations where complete and accurate
interpretation is necessary, a competent interpreter will assist the
recipient in selecting the most appropriate mode of interpreting that
will yield the most accurate information.
11. Definition of LEP
We received three comments recommending that we provide a clearer
definition of LEP in the Guidance because the language contained in the
`Background' section of the Guidance states ``If these people have a
limited ability to read, write, speak, or understand English, they
`are' limited English proficient or `LEP.' '' The commenters believed
that this language appears to contradict the definition of LEP in
Section III, which states ``Persons who do not speak English as their
primary language and who have a limited ability to read, write, speak,
or understand English `can be' limited English proficient, or `LEP'
(Who Is a Limited English Proficient Person?).'' In order to have
consistent and valid language throughout both sections, the language in
Section III, which defines LEP, has been revised to delete ``can be''
and inserted with `are' limited English proficient, or `LEP'.
12. Require Meaningful Notice of Rights to Language Services
We received three comments recommending that USDA and sub-agencies
strengthen the Guidance's language in regards to informing LEP persons
of their right to language services. Commenters recommended that using
multilingual telephone voice mail prompts or menus would be one easy
way of informing LEP persons of their right to language services.
The Guidance addresses this issue by recommending telephone voice
mail menus, among other approaches, when providing notice to LEP
persons about the availability of language assistance services (See
Section VI, part 4 ``Providing Notice to LEP Persons''). Therefore, no
change was made.
[[Page 70774]]
13. Include Existing LEP Regulations in Legal Authority
We received one comment recommending that the Guidance include
existing regulations that establish mandatory legal requirements.
In response to this comment, no change was made as the Guidance
includes reference to existing regulations. USDA makes its programs and
subprograms aware of their obligations and requirements to comply with
Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, Title VI
regulations, and program-specific regulations as noted in the Guidance
in the Background on page 9 and in the Legal Authority on pages 11-15e.
14. Require Adequate Signs Regarding Critical LEP Services
We received one comment, which notes that the language in the
guidance is inconsistent regarding posting notices in places that LEP
individuals commonly encounter. According to the commenter, the current
language should be made consistent with 7 CFR 272.6(f) and 7 CFR
272.4(b), which require adequate signs in the offices with respect to
information critical to LEP services.
No change was made to the Guidance in reference to this comment.
Both 7 CFR 272.6(f) and 7 CFR 272.4(b) regulations refer to
requirements set forth for participating agencies in the Food and
Nutrition Service Agency's programs, such as the Supplemental Nutrition
Assistance Program (SNAP). Specifically, 7 CFR 272.6, paragraph (f)
``Public Notification'' requires State agencies to ensure that all
offices involved in administering the SNAP program must publicly
display the nondiscrimination poster. 7 CFR 272.4, paragraph (b)
``Bilingual Requirements'' requires State agencies to provide bilingual
program information, certification materials, and staff or interpreters
to households that speak the same non-English language and that do not
have an adult(s) fluent in English as a second language. Both of these
issues are adequately addressed in the Guidance. The Guidance
specifically recommends that recipients (which, in this case, would be
State agencies) ensure that adequate signage is posted in the offices
and all information for the public be translated. The Guidance further
defines the importance of these issues as stated in the following
language contained in Section VI, Elements of an Effective Language
Assistance Plan for LEP Persons:
Providing Notice to LEP Persons
Once a recipient has decided, based on the four factors that it
will provide language services, it is important to let LEP persons know
that those services are available and that they are free of charge.
Recipients should provide this notice in a language that LEP persons
will understand. Examples of notification that recipients should
consider include posting signs in intake areas and other entry points
and noting the availability of language assistance services on
recipient Web sites. When language assistance is needed to ensure
meaningful access to information and services, it is important to
provide notice in appropriate languages in intake areas or initial
points of contact (including Web sites) 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 important
programs, activities, services, or benefits provided by USDA
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 and should explain how to get the
language help.\1\
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\1\ The Social Security Administration has made such signs
available at http://www.ssa.gov/multilanguage/langlist1.htm. These
signs could, for example, be modified for recipient use.
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15. Outreach to LEP Persons
We received two comments recommending that in addition to
developing procedures to serve LEP individuals, it is equally important
that LEP community members be made aware of the policies that are in
place to serve the LEP population through radio programs, ethnic media,
and other news outlets.
USDA agrees with the importance of finding effective methods of
disseminating this information and we believe this has been adequately
addressed in the Guidance. The Guidance notes that an effective
language access plan includes information about notifying LEP
individuals about the availability of language assistance services.
This can include ``providing notices on non-English language radio and
television stations about the available language assistance services
and benefits and how to get them.'' (See Section VI, Part 4.)
Therefore, no change was made to the Guidance and USDA agencies are
encouraged to work with recipients to ensure that this issue is
addressed in recipient LEP plans.
16. Conduct Roundtable and Follow-up
We received one comment recommending follow-up roundtable
discussions to solicit further recommendations. USDA acknowledges the
importance of gathering feedback and following up on recommendations
gathered from roundtable discussions. However, no further roundtable
discussions are warranted in advance of issuing this final Guidance.
Instead, OASCR will encourage USDA agencies to conduct roundtable
discussions with the community as a strategy to inform LEP individuals
of the resources available to them, as a means to determine the most
critical outreach material to translate, as well as a mechanism to
obtain feedback on an LEP plan from the community. This is in keeping
with our Guidance's emphasis on relying on community-based
organizations to provide important feedback to ensure LEP individuals
have meaningful access.
17. Appoint a Language Access Coordinator
We received one comment recommending that each recipient appoint a
person to handle LEP issues as they arise, review the LEP plan
annually, work toward a more effective implementation of the policy,
organize necessary trainings, etc. We believe that an LEP Coordinator
would be useful for recipients in ensuring that all aspects of the LEP
Guidance are being carried out. However, the appointment of this
position is based on the funding and hiring responsibilities of the
recipients and not USDA. USDA is committed to ensuring that all aspects
of the Guidance are carried out effectively and efficiently, and will,
therefore, recommend to recipients the usefulness of designating a
Language Access Coordinator; but we do not have the authority to
require that they designate one. Therefore, no change was made.
Nonetheless, the importance of designating a Language Access
Coordinator cannot be emphasized enough, and such an appointment will
greatly increase the likelihood of effective implementation and
maintenance of a language access plan.
18. Broaden Monitoring and Enforcement Activities
We received three comments asking that USDA broaden its monitoring
and enforcement activities to ensure that funding recipients meet their
Title VI language access obligations. We agree that USDA should closely
monitor the performance of recipients it funds and, where appropriate,
take enforcement
[[Page 70775]]
action against those entities that fail to meet their language
assistance obligations. This oversight responsibility is addressed in
the LEP Guidance under Section VII, which states that ``the requirement
to provide meaningful access to LEP persons is enforced and implemented
by USDA through its regulations at 7 CFR'' In addition, USDA will
monitor the effectiveness of recipients LEP programs through its
compliance reviews. Therefore, no change was made.
Background
Most people living in the United States read, write, speak and
understand English. There are many people, however, for whom English is
not their primary language. For instance, based on the 2000 Census,
over 26 million individuals speak Spanish, over 10 million speak
another Indo-European language,\2\ and almost 7 million speak an Asian
or Pacific Island language at home. If these people have a limited
ability to read, write, speak, or understand English, they are limited
English proficient, or ``LEP.'' According to the 2000 Census data, 28.3
percent of all Spanish speakers, 27.2 percent of all Russian speakers,
28.2 percent of all Chinese speakers, and 32.4 percent of all
Vietnamese speakers reported that they spoke English ``not well'' or
``not at all'' in response to the 2000 Census.\3\
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\2\ Other Indo-European languages include most languages of
Europe and the Indic languages of India, such as German, Yiddish,
Dutch, Swedish, Norwegian, French, Italian, Portuguese, Russian,
Polish, Serbo-Croatian, Hindi, Gujarathi, Punjabi, Urdu, Greek,
Baltic and Iranian languages.
\3\ Other languages include Hungarian, Arabic, Hebrew, languages
of Africa, native North American languages, including the American
Indian and Alaska native languages; and some indigenous languages of
Central and South America.
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Language for LEP persons can be a barrier to accessing important
benefits or services, understanding and exercising important rights,
complying with applicable responsibilities, or understanding other
information provided by Federally funded programs and activities. The
Federal Government funds an array of services that are available to
otherwise eligible LEP persons. The Federal Government is committed to
improving the accessibility of these programs and activities to
eligible LEP persons, a goal that reinforces its equally important
commitment to promoting programs and activities designed to help people
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. The fact that ESL
classes are made available, however, does not obviate the statutory and
regulatory requirements 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.\4\
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\4\ USDA recognizes that many recipients had language assistance
programs in place prior to the issuance of Executive Order 13166.
This policy guidance provides a uniform framework for a recipient to
integrate, formalize, and assess the continued vitality of these
existing and possibly additional reasonable efforts based on the
nature of its program or activity, the current needs of the LEP
populations it encounters, and its prior experience in providing
language services in the community it serves.
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In certain circumstances, failure to ensure that LEP persons can
effectively participate in or benefit from Federally assisted programs
and activities may violate the prohibition under Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d, and the USDA Title VI regulations
against national origin discrimination, 7 CFR part 15. The purpose of
this policy guidance is to assist recipients in fulfilling their
responsibilities to provide meaningful access to LEP persons under
existing law. This policy guidance clarifies existing legal
requirements by providing a description of the factors recipients
should consider in fulfilling their responsibilities to LEP persons.\5\
These are the same criteria USDA has been using and will continue to
use in evaluating whether recipients are in compliance with Title VI
and Title VI regulations.
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\5\ The policy guidance is not a regulation but rather a guide.
Title VI and implementing regulations require that recipients take
reasonable 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 persons who are limited English proficient.
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Under Executive Order 13166, DOJ is responsible for providing LEP
guidance to all Federal agencies and for ensuring consistency among the
agency-specific guidance documents issued by Federal agencies.
Consistency among the agency-specific guidance documents issued by
Federal agencies 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. As with most
government initiatives, this requires balancing several principles.
While this Guidance discusses that balance in some detail, it is
important to note the basic principles behind that balance. First, we
must ensure that Federally assisted programs aimed at the American
public do not leave some behind simply because those individuals face
challenges communicating in English. This is of particular importance
because, in many cases, LEP persons form a substantial portion of those
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
nonprofits that receive Federal financial assistance.
There are many productive steps the Federal Government, either
collectively or as individual agencies, can take to help recipients
reduce the costs of language services without sacrificing meaningful
access for LEP persons. Without these steps, certain smaller potential
recipients may well choose not to participate in Federally assisted
programs, threatening the critical functions that the programs strive
to provide. To that end, USDA plans to continue to provide assistance
and guidance in this important area. In addition, USDA plans to work
with potential and actual recipients, other Federal agencies, and LEP
persons to identify and share model plans, examples of best practices,
and cost-saving approaches.
Moreover, USDA intends to explore how language assistance measures,
resources, and cost-containment approaches developed with respect to
its own Federally-conducted programs and activities can be effectively
shared or otherwise made available to recipients, particularly small
businesses, local governments, and small nonprofit organizations. An
interagency working group on LEP has developed a Web site, http://www.lep.gov, to assist in disseminating this information to recipients,
other Federal agencies, and the communities being served.
Some have interpreted the case of Alexander v. Sandoval, 532 U.S.
275 (2001), as impliedly striking down the regulations promulgated
under Title VI that form the basis for the part of Executive Order
13166 that applies to Federally-assisted programs and activities. We do
not believe this is an accurate reading of the decision as the Supreme
Court, in Sandoval, addressed whether a private right of action existed
to enforce a DOJ regulation promulgated pursuant to Title VI, not the
validity of those regulations themselves. The
[[Page 70776]]
regulation at issue, 28 CFR 42.104(b)(2), prohibited recipients of
federal funding from utilizing criteria which had a discriminatory
effect. The plaintiffs, who were non-English speakers, challenged a
State policy of administering driver's license examinations exclusively
in English on the ground that the policy had a discriminatory effect on
non-English speakers and, consequently, violated 28 CFR 42.104(b)(2).
The Court concluded that the regulation was not enforceable through a
private right of action and, thus, held that the disparate-impact
regulation at issue, promulgated under Title VI, did not give rise to
private rights of action. See Sandoval, 532 U.S. at 293. The Court,
however, did not undermine the substance of other regulatory
requirements and we will continue to follow the Court's approach.
Accordingly, we will strive to ensure that Federally-assisted programs
and activities work in a way that is effective for all eligible
beneficiaries, including those with limited English proficiency.
I. Legal Authority
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000d, states that no person in the United States 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.
In addition to Title VI, some USDA recipients must implement a
statutory provision of the Food Stamp Act of 1977, 7 U.S.C. 2011 et
seq., which requires them to use appropriate bilingual personnel and
printed materials in the administration of SNAP, formerly the Food
Stamp Program, in areas where a substantial number of potentially
eligible households speak a language other than English. The Food Stamp
Act also requires recipients to establish procedures governing the
operation of SNAP offices that best serve households in each State,
including households in areas where a substantial number of potentially
eligible households speak a language other than English.
USDA regulations prohibit discrimination in all of its federally
assisted and conducted programs. Recipients may not, on the grounds of
race, color, or national origin, deny an individual any service,
financial aid or other benefit provided under the program, deny an
opportunity to participate in the program through the provisions of
services, or subject or restrict an individual to segregation or
separate treatment in any matter related to their receipt of service,
financial aid, or other benefit under the program. Please see 7 CFR
15.3(b)(1)-(2) for additional information.
In addition, USDA regulations implementing the Food Stamp Act of
1977 require that the State agency shall provide bilingual program
information and certification materials, and staff or interpreters. See
7 CFR 15.3(b)(6)(i)-(ii), for additional information.
In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court concluded
that Title VI and its implementing regulations required a federally
funded school district to ensure that LEP students were provided with
meaningful access to the district's educational programs. That case
involved a group of approximately 1,800 public school students of
Chinese origin who did not speak English, and to whom the school system
provided the same services--an education solely in English--that it
provided to students who spoke English. The Court held that by failing
to provide LEP Chinese-speaking students meaningful access to
educational programs, the school's practices violated Title VI's
prohibition against national origin discrimination.
On August 11, 2000, Executive Order 13166, ``Improving Access to
Services for Persons with Limited English Proficiency,'' was issued; 65
FR 50121 (August 16, 2000). Under that Order, every Federal agency that
provides financial assistance to non-Federal entities must publish
guidance on how their recipients can provide meaningful access to LEP
persons and thus comply with Title VI regulations forbidding funding
recipients from ``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
``utilize[ing] criteria or methods of administration which have the
effect of subjecting individuals to discrimination because of their
race, color, or national origin, or have the effect of defeating or
substantially impairing accomplishment of the objectives of the program
as respects individuals of a particular race, color, or national
origin.''
On that same day, DOJ issued a general guidance document addressed
to ``Executive Agency Civil Rights Officers'' setting forth general
principles for agencies to apply in developing guidance documents for
their recipients pursuant to the Executive Order, ``Enforcement of
Title VI of the Civil Rights Act of 1964--National Origin
Discrimination against Persons with Limited English Proficiency'' 65 FR
50123 (August 16, 2000), (DOJ LEP Guidance).
Subsequently, Federal agencies raised questions regarding the
requirements of the Executive Order, especially in light of the Supreme
Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On
October 26, 2001, Ralph F. Boyd, Jr., Assistant Attorney General for
the Civil Rights Division issued a memorandum for ``Heads of
Departments and Agencies, General Counsels and Civil Rights
Directors.'' This memorandum clarified and reaffirmed the DOJ LEP
Guidance in light of Sandoval.\6\ The Assistant Attorney General stated
that because Sandoval did not invalidate any Title VI regulations that
proscribe conduct that has a disparate impact on covered groups--the
types of regulations that form the legal basis for the part of
Executive Order 13166 that applies to federally assisted programs and
activities--the Executive Order remains in force.
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\6\ The memorandum noted that some commentators have interpreted
Sandoval as impliedly striking down the disparate impact regulations
promulgated under Title VI that form the basis for the part of
Executive Order 13166 that applies to Federally assisted programs
and activities. See, e.g., Sandoval, 532 U.S. at 286, 286 n.6
(``[We] assume for purposes of this decision that section 602
confers the authority to promulgate disparate-impact regulations;
**** We cannot help observing, however, how strange it is to say
that disparate-impact regulations are inspired by, at the service
of, and inseparably intertwined with Sec. 601, when Sec. 601 permits
the very behavior that the regulations forbid.'') The memorandum,
however, made clear that DOJ disagreed with the commentators'
interpretation. Sandoval holds principally that there is no private
right of action to enforce Title VI disparate impact regulations. It
did not address the validity of those regulations or Executive Order
13166 or otherwise limit the authority and responsibility of Federal
agencies to enforce their own implementing regulations.
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This guidance clarifies the responsibilities of recipients and will
assist them in fulfilling their responsibilities to LEP persons under
Title VI of the Civil Rights Act of 1964, as amended, and Title VI
regulations. It is consistent with Executive Order 13166, and DOJ LEP
guidance. To avoid discrimination against LEP persons on the ground of
national origin, USDA recipients should take reasonable steps to ensure
that such persons receive the language assistance necessary to afford
them meaningful access to recipient programs or activities, free of
charge.
[[Page 70777]]
II. Who is covered?
USDA regulations require all recipients of Federal financial
assistance from USDA to provide meaningful access to LEP persons.\7\
Federal financial assistance includes grants, below-market loans,
training, and use of equipment, donations of surplus property, and
other assistance. Covered entities include, but are not limited to:
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\7\ Pursuant to Executive Order 13166, the meaningful access
requirement of the Title VI regulations and the four-factor analysis
set forth in the DOJ LEP Guidance are to additionally apply to USDA
federally conducted programs and activities.
-- State and County agencies, offices, and their subdivisions;
-- Private vendors, agents, contractors, associations, and
corporations;
-- Colleges, universities, and elementary and secondary schools;
-- County, district, and regional committees/councils;
-- Nursing homes, summer camps, food banks, and housing authorities;
-- Research and promotion boards; and
-- Other entities receiving, directly or indirectly, Federal financial
assistance provided by USDA.
Subrecipients likewise are covered when Federal funds are passed
through from a recipient to a subrecipient.
Coverage extends to a recipient's entire program or activity, i.e.,
to all parts of a recipient's operations.\8\ This is true even if only
one part of the recipient receives the Federal financial assistance.\9\
For example, USDA provides assistance to a University's outreach
department to provide business development services to local farmers
and ranchers. In such a case, all operations of the University, not
just those of the University's outreach department are covered.
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\8\ What constitutes a program or activity covered by Title VI
was clarified by Congress in 1988, when the Civil Rights Restoration
Act of 1987 (CRRA) was enacted. The CRRA provides that, in most
cases, when a recipient receives Federal Financial assistance for a
particular program or activity, all operations of the recipient are
covered by Title VI, not just the part of the program or activity
that uses the Federal assistance.
\9\ However, if a Federal agency were to decide to terminate
Federal funds based on noncompliance with Title VI or its
regulations, only funds directed to the particular program or
activity that is out of compliance would be terminated. 42 U.S.C.
2000d-1.
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Some recipients operate in jurisdictions in which English has been
declared the official language. These recipients continue to be subject
to Federal nondiscrimination requirements, including those applicable
to the provision of Federally assisted services and benefits to persons
with limited English proficiency.\10\
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\10\ Recipients should also be mindful of their responsibilities
under the Americans with Disabilities Act of 1990 and Section 504 of
the Rehabilitation Act of 1973 in meeting their obligation to ensure
access to LEP individuals with disabilities.
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III. Who is a limited English proficient person?
Persons who do not speak English as their primary language and who
have a limited ability to read, write, speak, or understand English are
limited English proficient or ``LEP'' and entitled to language
assistance with respect to a particular type of benefit, service, or
encounter. Examples of populations likely to include LEP persons who
are encountered and/or served by USDA recipients and should be
considered when planning language services include, but are not limited
to, for example:
-- Persons seeking access to or needing assistance to obtain food
stamps or other food assistance from a recipient;
-- Persons seeking information, seeking to enforce rights, or seeking
benefits or services from recipient State and County agencies, offices,
and their subdivision;
-- Persons encountering recipient private vendors, agents, contractors,
associations, and corporations;
-- Students, community members, and others encountering recipient
extension programs, colleges, universities, and elementary and
secondary schools;
-- Persons seeking to participate in public meetings or otherwise
participate in the activities of county, district, and regional
committees/councils;
-- Persons seeking access to, or services or information from nursing
homes, summer camps, food banks, and housing authorities;
-- Persons subject to the work of research and promotion boards;
-- Persons encountering other entities or persons who receive, directly
or indirectly, Federal financial assistance provided by USDA; and
-- Parents and family members of the above.
IV. How does a recipient determine the extent of its obligation to
provide LEP services?
In order to ensure compliance with Title VI and Title VI
regulations, recipients are required to take reasonable steps to ensure
that LEP persons have meaningful access to their programs and
activities. 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 within the area serviced by the recipient;
(2) The frequency with which LEP persons come in contact with the
program or activity;
(3) The nature and importance of the program, activity, or service
to people's lives; and
(4) The resources available to the 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 avoiding undue burdens on small business, small local
governments, or small nonprofits.
After applying the above four-factor analysis, a recipient may
conclude that different language assistance measures are sufficient for
the different types of programs or activities in which it engages. For
instance, some of a recipient's activities will be more relevant to the
public than others and/or have greater impact on or contact with LEP
persons, and thus may require more in the way of language assistance.
However, the flexibility that recipients have to address the needs of
the LEP populations they serve does not diminish and should not be used
to minimize their obligation to address those needs. USDA 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 LEP persons within
the eligible service population, 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. The
eligible service population is program/activity-specific, and includes
persons who are in the recipient's geographic service area as
established by USDA, State or local authorities, or the recipient, as
appropriate, provided that those designations do not themselves
discriminatorily exclude certain populations. For instance, if a
statewide
[[Page 70778]]
conservation district serves a large LEP population within a particular
county, the appropriate service area will be the county, and not the
entire population eligible to participate in the program or activity
within the State. Below are additional examples of how USDA would
determine the relevant service areas when assessing who is eligible to
be served or likely to be directly affected.
Example A: A complaint filed with USDA alleges that a local food
stamp certification office discriminates against Hispanic and
Chinese LEP applicants by failing to provide such persons with
language assistance in connection with its programs and activities,
including written translations. The certification office identifies
its service area as the geographic area identified in its plan of
operations. USDA determines that a substantial number of the
recipient's food stamp applicants and beneficiaries are drawn from
the area identified in the plan of operations and that no area with
concentrations of racial, ethnic, or other minorities is
discriminatorily excluded from the plan. USDA is likely to accept
the area identified in the plan of operations as the relevant
service area.
Example B: A privately owned limited-profit housing corporation
enters into an agreement with USDA to provide low-income rural
rental housing that will serve beneficiaries in three counties. The
agreement is reviewed and approved by USDA. In determining the
persons eligible to be served or likely to be affected, the relevant
service area would generally be that designated in the agreement.
However, if one of the counties has a significant population of LEP
persons, and the others do not, consideration of that particular
county as a service population for purposes of determining the
proportion of LEP persons in the population served by that portion
of the recipient's program or activity would be appropriate.
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 encounter or
participate in a portion of a recipient's program or activity.
Recipients should first examine their prior experiences with LEP
encounters and determine the breadth and scope of language services
that were needed. In conducting this analysis, it is important to
include language minority populations that are eligible for their
programs or activities but may be underserved because of existing
language barriers.
Other data should be consulted to refine or validate a
recipient's prior experience, including the latest Census data for
the area served, data from school and from community organizations,
and data from State and local governments.\11\ 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 were language services provided.
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\11\ The focus of the analysis is on the 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 persons. When using demographic data, it
is important to focus in on the languages spoken by those who are
not proficient in English.
(2) The Frequency With Which LEP Persons Come Into Contact With the
Program or Activity.
Recipients should assess, as accurately as possible, the frequency
with which they have or should have contact with an LEP person from
different language groups seeking assistance. The more frequent the
contact with a particular language group, the more likely that enhanced
language services in that language are needed. The steps that are
reasonable for a recipient that serves an LEP person on a one-time
basis will be very different than those expected from a recipient that
serves LEP persons daily. It is also advisable to consider the
frequency of different types of language contacts. For example,
frequent contact with Spanish-speaking people who are LEP may require
certain assistance in Spanish. Less frequent contact with different
language groups may suggest a different and less intensified solution.
If an LEP person accesses a program or service on a daily basis,
recipient has greater duties than if the same person'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 person
seeks services under the program in question. This plan needs not be
intricate; it may be as simple as being prepared to use one of the
commercially available telephonic interpretation services to obtain
immediate interpreter services. In applying this standard, recipients
should take care to consider whether appropriate outreach to LEP
persons could increase the frequency of contact with LEP language
groups.
(3) The Nature and Importance of the Program or Activity or Service
by the Program.
The more important the information, service, or benefit provided in
a program or activity, or the greater the possible consequences of the
contact to LEP persons, the more likely language services are needed.
For instance, in determining importance, the obligation to communicate
information on the availability of emergency food assistance in a
designated disaster area may differ significantly from the obligation
to communicate information on the opportunity to attend a one-time free
luncheon at a community recreation center. A recipient needs to
determine whether denial or delay of access to services, benefits or
information could have serious or even life-threatening implications
for an LEP person. For example, the failure to translate consent forms
and applications for important benefits or services could have serious
or life-threatening implications for LEP persons in need of food,
shelter, emergency services, and many other important benefits. In the
same vein, to avoid serious, negative consequences to an LEP person, a
recipient must also determine the appropriate media or format that will
reach the target LEP population and does not result in a delay in
providing information on a program, service, or benefit. Further,
decisions by a Federal, State, or local entity, or by the recipient, to
make an activity compulsory, such as educational programs and
notifications of the right to a hearing or appeal, 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 those 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 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
[[Page 70779]]
formalized use of qualified community volunteers, for example, may help
reduce costs.\12\ 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. This is not to suggest that smaller
entities are immune from the requirement to provide meaningful access.
Any recipient of federal financial assistance must be sure that any
claim of resource limitations is well substantiated.
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\12\ Small recipients with limited resources may find that
entering into a bulk telephonic interpretation service contract will
prove cost effective.
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The four-factor analysis necessarily implicates the ``mix'' of LEP
services required. Recipients have two main ways to provide language
services: Oral interpretation either in person or via telephone
interpretation service (hereinafter ``interpretation'') and written
translation (hereinafter ``translation''). Oral interpretation can
range from on-site interpreters for critical services provided to a
high volume of LEP persons to access through commercially available
telephonic interpretation services. Written translation, likewise, can
range from translation of an entire document to translation of a short
description of the document. In some cases, language services should be
made available on an expedited basis while in others the LEP person 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 social
service recipient having a service area with a significant Hispanic LEP
population may need immediate oral interpreters available and should
give serious consideration to hiring some bilingual staff. (Of course,
many social services 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 recreational facility in which pre-arranged
language services for the particular service may not be necessary. All
recipients must provide meaningful access to all their programs.
However, the four-factor analysis recognizes that there may be
gradations of import concerning certain activities that will lessen the
burden on a recipient in certain unique situations. Regardless of the
type of language service provided, quality and accuracy of those
services can be critical in order to avoid serious consequences to LEP
persons and to recipients. Recipients have substantial flexibility in
determining the appropriate mix.
V. Selecting Language Assistance Services
Recipients have two main ways to provide language assistance to LEP
persons--oral interpretation and written translations. Quality and
accuracy of the language service is critical in order to avoid serious
consequences to LEP persons and to recipients.
A. Oral Language Services (Interpretation)
Interpretation is the act of listening to something in one language
(source language) and orally translating it into another language
(target language). Where interpretation is needed and is reasonable,
recipients should consider some or all of the following options for
providing competent interpreters in a timely manner.
Competence of Interpreters. When providing oral assistance,
recipients should ensure competency of the language service provider,
no matter which of the strategies outlined below are used. Competency
requires more than self-identification as bilingual. Some bilingual
staff and community volunteers, for instance, may be able to
communicate effectively in a different language when communicating
information directly in that language, but not be competent to
interpret in and out of English. Likewise, they may not be able to do
written translations.
Competency to interpret, however, does not necessarily mean formal
certification as an interpreter, although certification is helpful.
When using interpreters, recipients should ensure that they:
-- Demonstrate proficiency in and ability to communicate information
accurately in both English and in the other language and identify and
employ the appropriate mode of interpreting (e.g., consecutive,
simultaneous, summarization, or sight translation);
-- Have knowledge in both languages of any specialized terms or
concepts peculiar to the recipient's program or activity and of any
particularized vocabulary and phraseology used by the LEP person who is
being assisted; \13\
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\13\ Many languages have ``regionalisms,'' or differences in
usage. For instance a word that may be understood to mean something
in Spanish for someone from Cuba may not be so understood by someone
from Mexico. In addition, because there may be languages that do not
have an appropriate direct interpretation of some programmatic
terms, 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 follow confidentiality and impartiality rules to the
same extent as the recipient for whom he or she is interpreting; and
--Understand and adhere to their role as interpreters, without
deviating into a role as counselor, advisor, or other inappropriate
roles.
Some recipients may have additional self-imposed requirements for
interpreters.
Where individual rights depend on precise, complete, and accurate
interpretation or translations, particularly where ambiguous,
incomplete, or inaccurate information may result in the denial or
reduction of services or benefits, the use of certified interpreters is
strongly encouraged.\14\ Where such proceedings are 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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\14\ For those languages in which no formal accreditation or
certification exists, recipients should consider a formal process
for establishing the credentials of the interpreter.
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While 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 in a hearing regarding the reduction of benefits, for
example, must be extraordinarily high, while the quality and accuracy
of language services in a voluntary recreational program may not need
to meet the same exacting standards.
Finally, when interpretation is needed, it should be provided in a
timely manner. 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
[[Page 70780]]
provided at a time and place that avoids the effective denial of the
service or benefit at issue or the imposition of an undue burden on or
delay in the provision of important information rights, benefits, or
services to the LEP person. For example, when the timelines of
information, benefits, or services is important, such as with certain
activities related to various types of emergency assistance by way of
nutrition or housing services, or emergency loans, grants, etc., a
recipient would likely not be providing meaningful access if it had one
bilingual staffer available one day a week to provide language
assistance. Such conduct would likely result in delays for LEP persons
that would be significantly greater than those for English proficient
persons. Conversely, where access to information, service, or benefit
is not effectively precluded by a reasonable delay, language assistance
can likely be delayed for a reasonable period.
Hiring Bilingual Staff. When particular languages are encountered
often, hiring bilingual staff offers one of the best, and often most
economical, options. Recipients can, for example, fill public contact
positions, such as receptionists, secretaries, program specialists,
and/or program aides, with 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 (for instance, a bilingual program specialist would
probably not be able to perform effectively the role of an interpreter
in a benefits hearing and also carry out his or her duties to
administer requirements of the program or activity at the same time,
even if the program specialist were a qualified interpreter). Effective
management strategies, including any appropriate adjustments in
assignments and protocols for using bilingual staff, can ensure that
bilingual staff 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 on-site interpreters to provide accurate and
meaningful communication with an LEP person.
Contracting for Interpreters. Contract interpreters may be a cost-
effective option when there is no regular need for a particular
language skill. In addition to commercial and other private providers,
many community-based organizations and mutual assistance associations
provide interpretation services for particular languages. Contracting
with and providing training regarding the recipient's programs and
processes to these organizations can be a cost-effective option for
providing language services to LEP persons from those language groups.
Using Telephone Interpreter Lines. Telephone interpreter service
lines often offer speedy interpreting assistance in many different
languages. They may be particularly appropriate where the mode of
communicating with an English proficient person would also be over the
phone. Although telephonic interpretation services are useful in many
situations, it is important to ensure that, when using such services,
the interpreters used are competent to interpret any technical or legal
terms specific to a particular program or activity 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 documents prior to the discussion and any
logistical problems should be addressed.
Using Community Volunteers. In addition to consideration of
bilingual staff, staff interpreters, or contract interpreters (either
in-person or by telephone) as options to ensure meaningful access by
LEP persons, use of recipient-coordinated community volunteers working
with, for instance, community-based organizations may provide a cost-
effective supplemental language assistance strategy under appropriate
circumstances. They may be particularly useful in providing language
access for a recipient's less critical programs and activities. To the
extent the recipient relies on community volunteers, it is often best
to use volunteers who are trained in the information, services, or
benefits of the program or activity 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 readily available.
Use of Family Members, Friends, or Others as Interpreters. Although
recipients should not plan to rely on an LEP person's family members,
friends, or other informal interpreters to provide meaningful access to
important programs and activities, where LEP persons so desire, they
should be permitted to use, at their own expense, an interpreter of
their own choosing (whether a professional interpreter, family member,
friend, or other person of their choosing) 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, or other person 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
members, friends, 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 regulatory interest in accurate
interpretation.
In many circumstances, family members (especially children),
friends, or others identified by LEP persons, are not competent to
provide quality and accurate interpretations. Issues of
confidentiality, privacy, or conflict of interest may also arise. LEP
persons may feel uncomfortable revealing or describing sensitive,
confidential, or potentially embarrassing family, medical, or financial
information to a family member, friend, or member of the local
community. In addition, such informal interpreters may have a personal
connection to the LEP person or an undisclosed conflict of interest.
For these reasons, when oral language services are necessary,
recipients should generally offer competent interpreter services free
of cost to the LEP person.
[[Page 70781]]
For USDA recipient programs and activities, this is particularly true
in an administrative hearing or in situations in which health, safety,
or access to sustenance or important benefits and services are at
stake, or when credibility and accuracy are important to protect an LEP
person's rights or access to important benefits and services. An
example of such a case is when an LEP recipient applies for food stamps
or a low-interest farm loan. The recipient should not rely on friends
or family members of the LEP recipient or other informal interpreters.
While issues of competency, confidentiality, and conflict of
interest in the use of family members (especially children), friends,
or other informal interpreters often make their use inappropriate,
their use as interpreters may be an appropriate option where proper
application of the four factors would lead to a rare conclusion that
recipient-provided services are not necessary. An example of this is a
voluntary tour of a recipient's farmland offered to the 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, friends, or others may be appropriate.
If the LEP person voluntarily chooses to provide his or her own
interpreter, a recipient should consider whether a record of that
choice and of the recipient's offer of assistance is appropriate. Where
precise, complete, and accurate interpretations or translations of
information are critical for adjudicatory or legal reasons, or where
the competency of the LEP person's interpreter is not established, a
recipient might decide to provide its own, independent interpreter,
even if an LEP person wants to use his or her own interpreter as well.
Extra caution should be exercised when the LEP person chooses to use a
minor as the interpreter. While the LEP person's decision should be
respected, using children/minors as interpreters may create additional
issues of competency, confidentiality, or conflict of interest.
Reliance on children is especially discouraged unless there is an
extreme emergency and no preferable qualified interpreters are
available.
The recipient should ensure that the LEP person's choice is
voluntary, the LEP person is aware of the possible problems if the
preferred interpreter is a minor child, and that the LEP person knows
that the recipient could provide a competent interpreter at no cost (to
the LEP person).
B. Written Language Services (Translation)
Translation is the replacement of a written text from one language
(source language) into an equivalent written text in 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, but are not limited to:
--Applications to participate in a recipient's program or activity or
to receive recipient benefits or services;
--Consent forms, complaint forms, intake forms, letters containing
important information related to participation (such as cover letters
outlining conditions of participation in a loan program or committee
election);
--Written notices pertaining to eligibility requirements, rights,
losses, denials, decreases in benefits or services, foreclosures, or
terminations of services or benefits and/or the right to appeal such
actions;
--Notices advising LEP persons of the availability of free language
assistance;
--Written tests that do not assess English language proficiency, but
test competency for a particular license, job, or skill for which
knowing English is not required;
--Outreach materials; and
--Any documents that require a response from applicants, beneficiaries,
and other participants.
Whether or not a document (or the information it solicits) is
``vital'' may depend upon the importance of the program or activity,
information, encounter, service, or benefit 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 voluntary credit management courses are not necessarily vital (so
long as they are not a prerequisite to obtaining or maintaining better
credit), whereas, applications for rural rental housing would be
considered vital. Where appropriate, recipients are encouraged to
create a plan for consistently determining, over time and across its
various activities, what documents are ``vital'' to the meaningful
access of the LEP populations they serve. Note, however, that even when
a document is not vital, the recipient still must provide meaningful
access, which may require sight translation or other language
assistance services.
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 persons meaningful access. Thus, where a recipient
is engaged in community outreach activities in furtherance of its
activities, it should regularly assess the needs of the populations
frequently encountered or affected by the program or activity to
determine whether certain critical outreach materials should be
translated. Community organizations may be helpful in determining what
outreach materials may be most helpful to translate. In addition, the
recipient should consider whether translations of outreach material may
be made more effective when done in tandem with other outreach methods,
including utilizing the ethnic media, schools, and religious or
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 more
information about the document.
Into What Languages Should Documents Be Translated? The languages
spoken by the LEP persons with whom the recipient has contact determine
the languages into which vital documents should be translated. A
distinction should be made, however, between languages that are
frequently encountered by a recipient and 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
[[Page 70782]]
written materials into all of those languages is unrealistic. Although
recent technological advances have made it easier for recipients to
store and share translated documents, such an undertaking would incur
substantial costs and require substantial resources. Nevertheless,
well-substantiated claims of lack of resources to translate all vital
documents into dozens of languages do not necessarily relieve the
recipient of the obligation to translate those documents into at least
several of the more frequently encountered languages and to set
benchmarks for continued translations into the remaining languages over
time. As a result, the extent of the recipient's obligation to provide
written translations of documents should be determined by the recipient
on a case-by-case basis, looking at the totality of the circumstances
in light of the four-factor analysis. Because translation is a one-time
expense, consideration should be given to whether the up-front costs of
translating a document (as opposed to oral interpretation) should be
amortized over the likely life span of the document when applying this
four-factor analysis.
Safe Harbor. Many recipients would like to ensure with greater
certainty that they comply with their obligations to provide written
translations in languages other than English. Paragraphs (a) and (b)
below outline the circumstances that can provide a ``safe harbor,''
which means that if a recipient provides written translations under
these circumstances, such action will be considered strong evidence of
compliance with the recipient's written-translation obligations.
The failure to provide written translations under the circumstances
outlined in paragraphs (a) and (b) does not mean there is non-
compliance. Rather, they provide a common starting point for recipients
to consider whether and at what point the importance of the service,
benefit, or activity involved; the nature of the information sought;
and the number or proportion of LEP persons served call for written
translations of commonly-used forms into frequently encountered
languages other than English. Thus, these paragraphs merely provide a
guide for recipients that would like greater certainty of compliance
than can be provided by a fact-intensive, four-factor analysis.
Example: Even if the safe harbors are not used, if written
translation of a certain document(s) would be so burdensome as to
defeat the legitimate objectives of a recipient's program or
activity, the translation of the written materials is not necessary.
Other ways of providing meaningful access, such as effective oral
interpretation of certain vital documents, might be acceptable under
such circumstances.
Safe Harbor Provisions. The following actions will be considered
strong evidence of compliance with the recipient's written-translation
obligations:
a. The USDA recipient provides written translations of vital
documents for each eligible LEP language group that constitutes 5
percent or 1,000, whichever is less, of the population of persons
eligible to be served or likely to be affected or encountered.
Translation of other documents if needed, can be provided orally; or
b. If there are fewer than 50 persons in a language group that
reaches the 5 percent trigger in (a), the recipient does not translate
vital written materials but provides written notice in the primary
language of the LEP language group of the right to receive competent
oral interpretation of those written materials, free of cost.
These Safe Harbor Provisions apply to the translation of written
documents only. They do not affect the requirement to provide
meaningful access to LEP persons through competent oral interpreters
where oral language services are needed and are reasonable. The four
factor analysis must always be used in evaluating the need for, and
extent of use of, oral interpreters.
For example, recipients should, where appropriate, ensure that
program rules have been explained to LEP program participants prior to
taking adverse action against them.
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, though certification or accreditation may not always be
possible or necessary.\15\ Competence can often be ensured by having a
second, independent translator ``check'' the work of the primary
translator. Alternatively, one translator can translate the document,
and a second, independent translator could translate it back into
English to check that the appropriate meaning has been conveyed. This
is called ``back translation.''
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\15\ 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.
---------------------------------------------------------------------------
Recipients should ensure that translators understand the expected
reading level of their audiences and, where appropriate, have
fundamental knowledge about the target language group's vocabulary and
phraseology. Sometimes direct translation of materials results in a
translation that is written at a much more difficult level than the
English language version or has no relevant equivalent meaning.\16\
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, or technical
concepts helps avoid confusion by LEP persons and may reduce costs.
Providing translators with examples of previous accurate translations
of similar material by the recipient, other recipients, or Federal
agencies may be helpful.
---------------------------------------------------------------------------
\16\ For instance, there may be languages that do not have an
appropriate direct translation of some program-specific terms of art
or technical concepts and the translator should be able to provide
an appropriate translation. The translator also should likely make
the recipient aware of this. Recipients can work with translators to
develop a consistent and appropriate set of descriptions of these
terms. Recipients will find it more effective and less costly if
they try to maintain consistency in the words and phrases used to
translate terms of art and technical concepts. Creating or using
already-created glossaries of commonly used terms may be useful for
LEP persons and translators and cost-effective for the recipient.
Providing translators with examples of previous translations of
similar material by the recipient, other recipients, or Federal
agencies may be helpful.
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While quality and accuracy of translation services is critical, the
quality and accuracy of translation services is nonetheless part of
assessing the appropriate mix of LEP services required. For instance,
documents that are simple and have no legal or other negative
consequence for LEP persons may be translated by individuals who are
less skilled than those who translate documents with legal or other
important consequences. 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.
VI. Elements of Effective Plan on Language Assistance for LEP Persons
After completing the four-factor analysis and deciding what
language assistance services are appropriate, a recipient should
develop an implementation plan to address the identified needs of the
LEP populations it serves. Recipients have considerable
[[Page 70783]]
flexibility in developing this plan. 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 USDA 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 or activities. Accordingly, in the event that a
recipient elects not to develop a written plan, it should consider
alternative ways to articulate in some other reasonable manner a plan
for providing meaningful access. Entities having significant contact
with LEP persons, such as schools, religious organizations, community
groups, and groups working with new immigrants can be very helpful in
providing important input into this planning process from the
beginning.
The following six steps may be helpful in designing an LEP plan and
are typically part of effective implementation plans:
(1) Identifying LEP Persons Who Need Language Assistance
The first two factors in the four-factor analysis require an
assessment of the number of proportion of LEP persons eligible to be
served or encountered and the frequency of encounters. This requires
recipients to identify LEP persons with whom they have contact.
One way to determine the language of communication is to use
language identification cards (or ``I speak cards''), which invite LEP
persons to identify their language needs to staff. Such cards, for
instance, might say ``I speak Spanish'' in both Spanish and English,
``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 www.justice.gov/crt/about/cor/Pubs/ISpeakCards.pdf. 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 information about the
ways in which language assistance will be provided. For instance,
recipients may want to include information on at least the following:
--Types of language services available;
--How staff can obtain those services;
--How to respond to LEP callers;
--How to respond to written communications from LEP persons;
--How to respond to LEP persons who have in-person contact with
recipient staff; and
--How to ensure competency of interpreters and translation services.
(3) Training Staff
Staff should know their obligations to provide meaningful access to
information and services for LEP persons. An effective LEP plan would
likely include training to ensure that:
--Staff know about LEP policies and procedures; and
--Staff having contact with the public is trained to work effectively
with in-person and telephone interpreters.
Recipients may want to include this training as part of the
orientation for new employees. It is important to ensure that all
employees in public contact positions are properly trained. Recipients
have flexibility in deciding the manner in which the training is
provided. The more frequent the contact with LEP persons, the greater
the need will be for in-depth training. Staff with little or no contact
with LEP persons may only have to be aware of 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 a recipient has decided, based on the four factors, that it
will provide language services, it is important to let LEP persons know
that those services are available and they are free of charge.
Recipients should provide this notice in a language that LEP persons
will understand. Examples of notification that recipients should
consider include:
--Posting signs in intake areas and other entry points and adequate
posting on Web sites. When language assistance is needed to ensure
meaningful access to information and services, it is important to
provide notice in appropriate languages in intake areas or initial
points of contact (including Web sites) 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 important
programs, activities, services, or benefits provided by USDA
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 and should explain how to get the
language help; \17\
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\17\ The Social Security Administration has made such signs
available at http://www.ssa.gov/multilanguage/langlist1.htm. These
signs could, for example, be modified for recipient use.
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--Stating in outreach documents that language services are available
from the recipient. Announcements could be in, for instance, brochures,
booklets, and in outreach and recruitment information. These statements
should be translated into the most common languages and ``tagged'' onto
the front of common documents;
--Working with community-based organizations and other stakeholders to
inform LEP persons 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 benefits
and how to get them;
--Presentations and/or notices at schools and religious organizations;
and
--Posting notices/links for language assistance on recipient agency Web
sites. These should be translated into the most commonly encountered
[[Page 70784]]
languages and tagged on the agency home pages.
(5) Ensuring Online Automation Services
USDA recipients who provide online communications and services to
customers, including but not limited to online applications, forms and
brochures, must include in their LEP plan their strategy for ensuring
that LEP individuals have meaningful access to online automation
services.
(6) Monitoring and Updating the LEP Plan
Recipients should, where appropriate, have a process for
determining, on an ongoing basis, whether new documents, programs,
activities, services, and benefits need to be made accessible for LEP
persons, and they may want to provide notice of any changes in services
to the LEP public and to employees. In addition, recipients should
consider whether changes in demographics, types of services, or other
needs require annual reevaluation of their 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.
In their reviews, recipients may want to consider assessing changes
in:
--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 know and understand the LEP plan and how to implement
it; and
--Whether identified sources for assistance are still available and
viable.
In addition to these six elements, effective plans set clear goals,
management accountability, and opportunities for community input and
planning throughout the process.
VII. Voluntary Compliance Effort
The goal for Title VI and Title VI regulatory enforcement is to
achieve voluntary compliance. The requirement to provide meaningful
access to LEP persons is enforced and implemented by USDA through its
regulations at 7 CFR part 15, Departmental Regulation 4330-2,
``Nondiscrimination in Programs and Activities Receiving Federal
Financial Assistance From USDA,'' and Departmental Manual 4330-2,
``Procedures for Processing Discrimination Complaints and Conducting
Civil Rights Compliance Reviews in USDA Assisted Programs and
Activities.'' These documents contain USDA requirements and procedures
for discrimination complaints processing, complaint investigations,
compliance reviews, efforts to secure voluntary compliance, and
technical assistance.
USDA will investigate whenever it receives a complaint, report, or
other information that alleges or indicates possible noncompliance with
Title VI or its regulations. If the investigation results in a finding
of compliance, USDA will inform the recipient in writing of this
determination, including the basis for the determination. USDA uses
voluntary mediation to resolve most complaints. However, if a case is
fully investigated and results in a finding of noncompliance, USDA 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 necessary. If the matter cannot
be resolved informally, USDA must secure compliance either through the
termination of Federal assistance after the USDA recipient has been
given an opportunity for an administrative hearing and/or by referring
the matter to DOJ to seek injunctive relief or pursue other enforcement
proceedings. USDA engages in voluntary compliance efforts and provides
technical assistance to recipients at all stages of an investigation.
During these efforts, USDA 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, USDA's primary concern is to
ensure that the recipient's policies and procedures provide meaningful
access for LEP persons to the recipient's programs and activities.
While all recipients must work toward building systems that will
ensure access for LEP persons, USDA acknowledges that the
implementation of a comprehensive system to serve LEP persons is a
process and that a system will evolve over time as it is implemented
and periodically reevaluated. As recipients take reasonable steps to
provide meaningful access to Federally-assisted programs and activities
for LEP persons, USDA 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, USDA recipients should ensure that the provision of
appropriate assistance for significant LEP populations or with respect
to programs or activities having a significant impact on important
benefits, and services, are addressed first. Recipients are encouraged
to document their efforts to provide LEP persons with meaningful access
to Federally assisted programs and activities.
VIII. Effect on State and Local Laws
Some State and local laws may identify language access obligations/
requirements. Recipients may meet these obligations, so long as they do
not conflict with or set a lower standard than is required under Title
VI and Title VI regulations. Moreover, recipients must also comply as a
matter of state law with higher requirements if those requirements
exist under state laws. Finally, as noted above, some recipients
operate in a jurisdiction in which English has been declared the
official language. Nonetheless, these recipients continue to be subject
to Federal non-discrimination requirements, including those applicable
to the provision of Federally assisted benefits and services to persons
with limited English proficiency.
Dated: November 17, 2014.
Thomas J. Vilsack,
Secretary.
[FR Doc. 2014-27960 Filed 11-26-14; 8:45 am]
BILLING CODE 3410-9R-P