[Federal Register Volume 75, Number 116 (Thursday, June 17, 2010)]
[Notices]
[Pages 34465-34475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14630]
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DEPARTMENT OF HOMELAND SECURITY
[DHS Docket No. DHS-2009-0032]
Office for Civil Rights and Civil Liberties; Guidance to Federal
Financial Assistance Recipients Regarding Title VI Prohibition Against
National Origin Discrimination Affecting Limited English Proficient
Persons
AGENCY: Office for Civil Rights and Civil Liberties, DHS.
ACTION: Notice; proposed policy guidance.
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SUMMARY: The Department of Homeland Security is publishing for public
comment proposed guidance to recipients of Federal financial assistance
regarding Title VI's prohibition against national origin discrimination
affecting persons with limited English proficient persons. This
proposed guidance is
[[Page 34466]]
issued pursuant to Executive Order 13166 and is consistent with
government-wide guidance previously issued by the Department of
Justice.
DATES: Written comments are invited from interested persons and
organizations no later than July 11, 2010.
ADDRESSES: Comments should be sent to:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Officer for Civil Rights and Civil Liberties, U.S.
Department of Homeland Security, 245 Murray Lane, SW., Building 410,
Washington, DC 20528, Mail Stop 0190. To ensure proper handling, please
reference DHS Docket No. DHS-2009-0032 on the correspondence. This
mailing address may also be used for paper, disk, or CD-ROM
submissions. DHS will accept comments in alternate formats such as
Braille, audiotape, etc. by mail.
E-Mail: [email protected]. The subject line should include
``LEP Docket DHS-2009-0032.''
TTY: 202-401-0470, Toll Free TTY: 1-866-644-8361. TTY
callers may also contact us through the Federal Relay Service TTY at
(800) 877-8339. Other Federal Relay Service options are available at
http://www.gsa.gov/fedrelay.
Facsimile: (202) 401-4708 (not a toll-free number).
Instructions for filing comments: All submissions received must
include the agency name and DHS docket number DHS-2009-0032. All
comments received (including any personal information provided) will be
posted without change to http://www.regulations.gov.
Reviewing comments: Public comments may be viewed online at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Rebekah Tosado, Senior Advisor to the
Officer for Civil Rights and Civil Liberties, Office for Civil Rights
and Civil Liberties, Department of Homeland Security, 245 Murray Lane,
SW., Building 410, Washington, DC 20528, Mail Stop 0190. Toll free: 1-
866-644-8360 or TTY 1-866-644-8361. Local: 202-401-1474 or TTY: 202-
401-0470.
SUPPLEMENTARY INFORMATION: Executive Order 13166 directs each Federal
agency that extends assistance subject to the requirements of Title VI
of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq., to publish
guidance for its respective recipients clarifying that obligation.
Executive Order 13166, Improving Access to Services for Persons with
Limited English Proficiency, 65 FR 50121 (August 16, 2000). Executive
Order 13166 further directs that all such guidance documents be
consistent with the compliance standards and framework detailed by the
Department of Justice (DOJ). See Enforcement of Title VI of the Civil
Rights Act of 1964--National Origin Discrimination Against Persons with
Limited English Proficiency, 65 FR 50121 (August 16, 2000) (DOJ LEP
Guidance).
In this document, the Department of Homeland Security (DHS) is
proposing to adopt guidance that adheres to the Government-wide
compliance standards and framework detailed in the model DOJ LEP
Guidance, as modified. Guidance to Federal Financial Assistance
Recipients Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons, 67 FR
41455 (June 18, 2002). The Departments of Commerce, Education, Health
and Human Services, Energy, Housing and Urban Development, Labor,
Interior, State Transportation, Treasury, and Veterans Affairs, and the
Environmental Protection Agency, have issued similar guidance. DHS
specifically solicits comments on the nature, scope, and
appropriateness of the DHS-specific examples set out in this guidance
explaining and/or highlighting how those Federal-wide guidelines are
applicable to recipients of DHS financial assistance.
This guidance does not constitute a regulation subject to the
rulemaking requirements of the Administrative Procedure Act, 5 U.S.C.
553. This guidance is published in the Federal Register pursuant to the
instructions in Executive Order 13166. DHS, however, is seeking public
comment as a matter of discretion.
This Guidance is applicable to all LEP persons seeking services and
shall be interpreted to be consistent with Executive Order 13404, Task
Force on New Americans (June 7, 2006).
I. Introduction
Most individuals living in the United States read, write, speak,
and understand English. Many individuals, however, do not read, write,
speak, or understand English as their primary language. Based on the
2000 census, over 28 million individuals speak Spanish and almost 7
million individuals speak an Asian or Pacific Island language at home.
If these individuals have a limited ability to read, write, speak, or
understand English, they are limited English proficient, or LEP. The
2000 census indicates that 28.1 percent of all Spanish-speakers, 28.2
percent of all Chinese-speakers, and 32.3 percent of all Vietnamese-
speakers reported that they spoke English ``not well'' or ``not at
all.'' More recent data from the 2008 American Community Survey
estimates that 24.4 million individuals in America, or 8.6 percent of
the population 5 years and older, speak English less than ``very
well.''
For LEP individuals, language can be a barrier to accessing
important benefits or services, understanding and exercising important
rights, providing timely and critical information to first responders
in times of emergency, complying with applicable responsibilities, or
understanding other information provided by Federally funded programs
and activities. The Federal Government is committed to improving the
accessibility of these programs and activities to eligible LEP persons,
a goal that reinforces its equally important commitment to promoting
programs and activities designed to help individuals learn English.
Recipients should not overlook the long-term positive impacts of
incorporating or offering English as a Second Language (ESL) programs
in parallel with language assistance services. ESL courses can serve as
an important adjunct to a proper LEP plan. However, the fact that ESL
classes are made available does not obviate the statutory and
regulatory requirement to provide meaningful access for those who are
not yet English proficient. Recipients of Federal financial assistance
have an obligation to reduce language barriers that can preclude
meaningful access by LEP persons to important government services.\1\
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\1\ DHS recognizes that many recipients had language assistance
programs in place prior to the issuance of Executive Order 13166.
This policy guidance provides a uniform framework for 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
population it encounters, and its prior experience in providing
language services in the community it serves.
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In certain circumstances, failure to ensure that LEP persons can
effectively participate in or benefit from Federally assisted programs
and activities may violate the prohibition under Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d, and DHS Title VI regulations
against national origin discrimination, 6 CFR part 21. The purpose of
this policy guidance is to assist recipients in fulfilling their
responsibilities to provide meaningful access to LEP persons under
existing law. This policy guidance clarifies existing legal
requirements for LEP persons by
[[Page 34467]]
providing a description of the factors recipients should consider in
fulfilling their responsibilities to LEP persons.\2\ These are the same
criteria DHS uses in evaluating whether recipients are in compliance
with Title VI and Title VI regulations.
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\2\ The policy guidance is not a regulation but rather a guide.
Title VI and its implementing regulations require that recipients
take responsible steps to ensure meaningful access by LEP persons.
This guidance provides an analytical framework that recipients may
use to determine how best to comply with statutory and regulatory
obligations to provide meaningful access to the benefits, services,
information, and other important portions of their programs and
activities for individuals who are limited English proficient.
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Consistency among agencies of the Federal Government is
particularly important. Inconsistency or contradictory guidance could
confuse recipients of Federal funds and needlessly increase costs
without rendering the meaningful access for LEP persons that this
guidance is designed to address. 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. First, we must ensure that Federally assisted
programs aimed at the American public do not leave some behind simply
because they face challenges communicating in English. This is of
particular importance because, in many cases, LEP individuals form a
substantial portion of those individuals encountered in Federally
assisted programs. Second, we must achieve this goal while finding
constructive methods to reduce the costs of LEP requirements on small
businesses, small local governments, or small non-profits that receive
Federal financial assistance.
There are many productive steps that the Federal Government, either
collectively or as individual grant agencies, can take to help
recipients reduce the costs of language services without sacrificing
meaningful access for LEP persons. Without these steps, certain smaller
grantees may well choose not to participate in Federally assisted
programs, threatening the critical functions that the programs strive
to provide. To that end, DHS plans to continue to work with the
Department of Justice (DOJ) and recipients to explore how language
assistance measures, resources, and activities can effectively be
shared or otherwise made available to recipients. An interagency
working group on LEP has developed a Web site, http://www.lep.gov, to
assist in disseminating this information to recipients, Federal
agencies, and the communities being served.
II. Legal Authority
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d, provides that no person shall ``on the ground of race, color, or
national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.'' Section 602
authorizes and directs Federal agencies that are empowered to extend
Federal financial assistance to any program or activity ``to effectuate
the provisions of [section 601] * * * by issuing rules, regulations, or
orders of general applicability.'' 42 U.S.C. 2000d-1.
DHS regulations promulgated pursuant to section 602 forbid
recipients from ``utiliz[ing] criteria or methods of administration
which have the effect of subjecting persons to discrimination because
of their race, color, or national origin, or have the effect of
defeating or substantially impairing accomplishment of the objectives
of the program with respect to individuals of a particular race, color,
or national origin.'' 6 CFR 21.5(b)(2).
The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974),
interpreted regulations promulgated by the former Department of Health,
Education, and Welfare, 45 CFR 80.3(b)(2), which is similar to the DHS
Title VI interim regulation, 6 CFR part 21, to hold that Title VI
prohibits conduct that has a disproportionate effect on LEP persons
because such conduct constitutes national-origin discrimination. In
Lau, a San Francisco school district that had a significant number of
non-English speaking students of Chinese origin was required to take
reasonable steps to provide them with a meaningful opportunity to
participate in Federally funded educational programs.
On August 11, 2000, the President signed Executive Order 13166,
Improving Access to Services for Persons with Limited English
Proficiency, 65 FR 50121 (August 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 ``utiliz[ing] criteria or methods
of administration which have the effect of subjecting individuals to
discrimination because of their race, color, or national origin, or
have the effect of defeating or substantially impairing accomplishment
of the objectives of the program as respects individuals of a
particular race, color, or national origin.''
At the same time, DOJ provided further guidance to Executive Agency
civil rights officers, setting forth general principles for agencies to
apply in developing guidance documents for recipients pursuant to the
Executive Order. ``Enforcement of Title VI of the Civil Rights Act of
1964 National Origin Discrimination Against Persons With Limited
English Proficiency,'' 65 FR 50123 (August 16, 2000) (DOJ LEP
Guidance).
Subsequently, the Supreme Court decided that Title VI does not
create a private right of action to enforce regulations promulgated
under Section 602. Alexander v. Sandoval, 532 U.S. 275, 293 (2001).
Federal agencies raised questions regarding the requirements of the
Executive Order, in light of the Supreme Court's decision in Alexander
v. Sandoval. On October 26, 2001, DOJ's Assistant Attorney General for
the Civil Rights Division advised agency General Counsels and civil
rights directors, clarifying and reaffirming the DOJ LEP Guidance in
light of Sandoval.\3\ The Assistant Attorney General stated that
because Sandoval did not invalidate any Title VI regulations that
proscribe conduct that has a disparate impact on covered groups--the
types of regulations that form the legal basis for the part of
Executive Order 13166 that applies to Federally assisted programs and
activities--the Executive Order remains in force.
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\3\ The memorandum noted that some commenters have interpreted
Sandoval as impliedly striking down the disparate-impact regulations
promulgated under Title VI that form the basis for the part of
Executive Order 13166 that applies to Federally assisted programs
and activities. See, e.g., Sandoval, 532 U.S. at 286, 286 n.6
(``[W]e assume for purposes of this decision that Sec. 602 confers
the authority to promulgate disparate-impact regulations; * * *. We
cannot help observing, however, how strange it is to say that
disparate-impact regulations are `inspired by, at the service or,
and inseparably intertwined with' Sec. 601 * * * when Sec. 601
permits the very behavior that the regulations forbid.''). The
memorandum, however, made clear that DOJ disagreed with the
commenters' interpretation. Sandoval holds principally that there is
no private right of action to enforce Title VI disparate-impact
regulations. The court explicitly stated in Sandoval that it did not
address the validity of those regulations or Executive Order 13166
or otherwise limits the authority and responsibility of Federal
grant agencies to enforce their own implementing regulations. 532
U.S. at 279.
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This guidance document is published pursuant to Executive Order
13166 and reflects Assistant Attorney General's
[[Page 34468]]
October 26, 2001, clarifying memorandum.
III. Covered Recipients
DHS regulations 6 CFR 21.5(b)(2) and 44 CFR 7.5(b) require all
recipients of Federal financial assistance from DHS to provide
meaningful access to LEP persons.\4\ Federal financial assistance
includes grants, training, use of equipment, donations of surplus
property, and other assistance. Recipients of DHS assistance include,
but are not limited to:
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\4\ Pursuant to Executive Order 13166, the meaningful access
requirement of the Title VI regulations and the four-factor analysis
set forth in the DOJ LEP Guidance are to additionally apply to the
programs and activities of Federal agencies, including DHS.
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a. State and local fire departments;
b. State and local police departments;
c. State and local emergency management agencies;
d. State and local governments, together with certain qualified
private non-profit organizations, when they receive assistance pursuant
to a Presidential declaration of disaster or emergency;
e. Certain non-profit agencies that receive funding under the
Emergency Food and Shelter Program;
f. Urban areas and mass transit authorities that enhance local
emergency, prevention and response agencies' ability to prepare for and
respond to threats of terrorism or other emergencies;
g. Community Emergency Response Teams (CERT), which conduct
training and other activities to enhance individual, community, family,
and workplace preparedness;
h. Jails and detention facilities that house detainees of
Immigration and Customs Enforcement;
i. Coast Guard assisted boating safety programs;
j. Entities that receive specialized training through the Federal
Law Enforcement Training Center (FLETC);
k. Intercity buses.
The Catalogue of Federal Domestic Assistance (CFDA) contains
current information on DHS Federal financial assistance and can be
found at http://www.cfda.gov/. Sub-recipients likewise are covered when
Federal funds are passed through from one recipient to a sub-recipient.
Coverage extends to a recipient's entire program or activity, i.e.
to all parts of a recipient's operations. This is true even if only one
part of the recipient receives the Federal assistance.\5\ For example,
if DHS provides assistance to a particular division of a State
emergency management agency to improve planning capabilities in that
division, all of the operations of the entire State emergency
management agency--not just the particular division--are covered.
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\5\ 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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Finally, some recipients operate in jurisdictions in which English
has been declared the official language. Nonetheless, DHS recipients
continue to be subject to Federal non-discrimination requirements
including those applicable to access to and provision of Federally
assisted programs and activities to persons with limited English
proficiency.
IV. Limited English Proficient Individual
Individuals who do not speak English as their primary language and
those who have a limited ability to read, write, speak, or understand
English can be limited English proficient, or ``LEP,'' and entitled to
language assistance with respect to a particular type of service,
benefit, or encounter.
Examples of populations likely to include LEP persons who are
encountered and/or served by DHS recipients and should be considered
when planning language services include but are not limited to:
a. Persons who require the aid of a local or State police or fire
department, or other emergency services;
b. Persons who seek assistance at airports that receive TSA funds;
c. Persons who are applying for assistance under a FEMA or State
disaster relief program;
d. Persons who seek to enroll in a safe boating course that is
offered by a State receiving funds;
e. Persons who use mass transit services such as buses or subways
that receive DHS financial assistance;
f. Persons subject to or serviced by law enforcement activities,
including for example, suspects, violators, witnesses, victims, those
subject to immigration-related investigations by recipient law
enforcement agencies, agencies, and community members seeking to
participate in crime prevention and awareness activities; or
g. Parents and family members of LEP individuals.
V. Recipient Determination of the Extent of Its Obligation To Provide
LEP Services
Recipients are required to take reasonable steps to ensure
meaningful access to their programs and activities by LEP persons.
While designed to be a flexible and fact-dependent standard, the
starting point is an individualized assessment that balances the
following four factors:
1. The number or proportion of LEP persons eligible to be served or
likely to be encountered by the program or grantee;
2. The frequency with which LEP individuals come in contact with
the program;
3. The nature and importance of the program, activity, or service
provided by the program to people's lives; and
4. The resources available to the grantee/recipient and costs.
As indicated above, the intent of this guidance is to suggest a balance
that ensures meaningful access by LEP persons to critical services
while not imposing undue burdens on small business, small local
governments, or small non-profits.
After applying the above four-factor analysis, a recipient may
conclude that different language assistance measures are sufficient for
the different types of programs or activities in which it engages. For
instance, some of a recipient's activities will be more important than
others and/or have greater impact on or contact with LEP persons, and
thus may require more in the way of language assistance. The
flexibility that recipients have in addressing the needs of the LEP
populations they serve does not diminish, and should not be used to
minimize, the obligation that those needs be addressed. DHS recipients
should apply the four factors to the various kinds of contacts that
they have with the public to assess language needs and decide what
reasonable steps they should take to ensure meaningful access for LEP
persons.
1. The Number or Proportion of LEP Persons Served or Encountered in the
Eligible Service Population
One factor in determining what language services recipients should
provide is the number or proportion of LEP persons from a particular
language group served or encountered in the eligible service
population. The greater the number or proportion of these LEP persons,
the more likely language services are needed. Ordinarily, persons
``eligible to be served, or likely to be directly affected, by'' a
recipient's
[[Page 34469]]
program or activity are those who are served or encountered in the
eligible service population. This population will be program-specific,
and includes persons who are in the geographic area that has been
approved by a Federal grant agency as the recipient's service area.
However, where, for instance, a fire station serves a large LEP
population, the appropriate service area is most likely the area served
by that station, and not the entire population served by the agency.
Where no service area has previously been approved, the relevant
service area may be that which is approved by State or local
authorities or designated by the recipient itself, provided that these
designations do not themselves discriminatorily exclude certain
populations. When considering the number or proportion of LEP
individuals in a service area, recipients should consider LEP parent(s)
when their English-proficient or LEP minor children and dependents
access or encounter the recipients' services.
Recipients should first examine their prior experiences with LEP
encounters and determine the breadth and scope of language services
that were needed. In conducting this analysis, it is important to
include language minority populations that are eligible for their
programs or activities but may be underserved because of existing
language barriers. Other data should be consulted to refine or validate
a recipient's prior experience, including the latest census data for
the area served, data from school systems, and from community
organizations, and data from State and local governments.\6\ Community
agencies, school systems, religious organizations, legal aid entities,
and others can often assist in identifying populations for whom
outreach is needed and who would benefit from the recipients' programs
and activities if language services were provided.
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\6\ The focus of the analysis is on lack of English proficiency,
not the ability to speak more than one language. Note that
demographic data may indicate the most frequently spoken languages
other than English and the percentage of people who speak that
language who speak or understand English less than well. Some of the
most commonly spoken languages other than English may be spoken by
people who are also overwhelmingly proficient in English. Thus, they
may not be the languages spoken most frequently by limited English
proficient individuals. When using demographic data, it is important
to focus in on the languages spoken by those who are not proficient
in English.
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2. The Frequency With Which LEP Individuals Come in Contact With the
Program
Recipients should assess, as accurately as possible, the frequency
with which they have or should have contact with an LEP individual from
different language groups seeking assistance. The more frequent the
contact with a particular language group, the more likely that enhanced
language services in that language are needed. The steps that are
reasonable for a recipient that serves an LEP person on a one-time
basis will be very different than those expected from a recipient that
serves LEP persons daily. It is also advisable to consider the
frequency of different types of language contacts. For example,
frequent contacts with Spanish-speaking people who are LEP may require
certain assistance in Spanish. Less frequent contact with different
language groups may suggest a different and less intensified solution.
If an LEP individual accesses a program or service on a daily basis, a
recipient has greater duties than if the same individual's program or
activity contact is unpredictable or infrequent. But even recipients
that serve LEP persons on an unpredictable or infrequent basis should
use this balancing analysis to determine what to do if an LEP
individual seeks services under the program in question. This plan need
not be intricate. It may be as simple as being prepared to use a
commercially available telephonic interpretation service to obtain
immediate interpreter services. In applying this standard, recipients
should take care to consider whether appropriate outreach to LEP
persons could increase the frequency of contact with LEP language
groups.
3. The Nature and Importance of the Program, Activity, or Service
Provided by the Program
The more important the activity, information, service, or program,
or the greater the possible consequences of the contact to the LEP
individuals, the more likely language services are needed. The
obligations to communicate with individual disaster applicants or to
provide fire safety information to residents of a predominantly LEP
neighborhood differ, for example, from those to provide recreational
programming on the part of a municipal parks department receiving
disaster aid. A recipient needs to determine whether denial or delay of
access to services or information could have serious or even life-
threatening implications for the LEP individual. Decisions by a
Federal, State, or local entity to make an activity compulsory, such as
the requirement to complete an application to receive certain State
disaster assistance benefits, can serve as strong evidence of the
program's importance.
4. The Resources Available to the Recipient and Costs
A recipient's level of resources and the costs that would be
imposed on it may have an impact on the nature of the steps it should
take. Smaller recipients with more limited budgets are not expected to
provide the same level of language services as larger recipients with
larger budgets. In addition, ``reasonable steps'' may cease to be
reasonable where the costs imposed substantially exceed the benefits.
Resource and cost issues, however, can often be reduced by
technological advances; the sharing of language assistance materials
and services among and between recipients, advocacy groups, and Federal
grant agencies; and reasonable business practices. Where appropriate,
training bilingual staff to act as interpreters and translators,
information sharing through industry groups, telephonic and video
conferencing interpretation services, pooling resources and
standardizing documents to reduce translation needs, using qualified
translators and interpreters to ensure that documents need not be
``fixed'' later and that inaccurate interpretations do not cause delay
or other costs, centralizing interpreter and translator services to
achieve economies of scale, or the formalized use of qualified
community volunteers may, for example, help reduce costs.\7\ Recipients
should carefully explore the most cost-effective means of delivering
competent and accurate language services before limiting services due
to resource concerns. Large entities and those entities serving a
significant number or proportion of LEP persons should ensure that
their resource limitations are well-substantiated before using this
factor as a reason to limit language assistance. Such recipients may
find it useful to be able to articulate, through documentation or in
some other reasonable manner, their process for determining that
language services would be limited based on resources or costs.
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\7\ Small recipients with limited resources may find that
entering into a bulk telephonic interpretation service contract will
prove cost effective.
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This four-factor analysis necessarily implicates the ``mix'' of LEP
services required. Recipients have two main ways to provide language
services: Oral and written.
Oral interpretation either in person or via telephone
interpretation service (hereinafter ``interpretation''): Oral
interpretation can range from on-site interpreters for critical
services
[[Page 34470]]
provided to a high volume of LEP persons to access through commercially
available telephonic interpretation services.
Written translation (hereinafter ``translation''): Written
translation, likewise, can range from translation of an entire document
to translation of a short description of the document.
In some cases, language services should be made available on an
expedited basis while in others the LEP individual may be referred to
another office of the recipient for language assistance.
The correct mix should be based on what is both necessary and
reasonable in light of the four-factor analysis. For instance, a fire
department in a largely Hispanic community may need immediate oral
interpreters available and should give serious consideration to hiring
some bilingual staff. (Of course, many fire departments have already
made such arrangements). In contrast, there may be circumstances where
the importance and nature of the activity and number or proportion and
frequency of contact with LEP persons may be low and the costs and
resources needed to provide language services may be high, such as in
the case of a voluntary general public tour of a firehouse, in which
pre-arranged language services for the particular service may not be
necessary. Regardless of the type of language service provided, quality
and accuracy of those services can be critical in order to avoid
serious consequences to the LEP person and to the recipient. Recipients
have substantial flexibility in determining the appropriate mix.
VI. Selecting Language Assistance Services
Recipients have two main ways to provide language services, namely,
oral and written language services. Quality and accuracy of the
language service is critical in order to avoid serious consequences to
the LEP person and to the recipient.
A. Oral Language Services (Interpretation)
Interpretation is the act of listening to something in one language
(source language) and orally translating it into another language
(target language). Where interpretation is needed and is reasonable,
recipients should consider some or all of the following options for
providing competent interpreters in a timely manner.
Competence of Interpreters. When providing oral assistance,
recipients should ensure competency of the language service provider,
no matter which of the strategies outlined below are used. Competency
requires more than self-identification as bilingual. Some bilingual
staff and community volunteers, for instance, may be able to
communicate effectively in a different language when communicating
information directly in that language, but not be competent to
interpret in and out of English. Likewise, they may not be able to do
written translations.
Competency to interpret, however, does not necessarily mean formal
certification as an interpreter, although certification is helpful.
When using interpreters, recipients should ensure that they:
Demonstrate proficiency in, and ability to communicate
information accurately in both English and in the other language, and
identify and employ the appropriate mode of interpreting (e.g.,
consecutive, simultaneous, summarization, or sight translation);
Have knowledge in both languages of any specialized terms
or concepts peculiar to the entity's program or activity and of any
particularized vocabulary and phraseology used by the LEP person; \8\
and understand and follow confidentiality and impartiality rules to the
same extent the recipient employee for whom they are interpreting and/
or to the extent their position requires;
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\8\ Many languages have ``regionalisms,'' or differences in
usage. For instance, a word that may be understood to mean something
in Spanish for someone from Cuba may not be so understood by someone
from Mexico. In addition, because there may be languages which do
not have an appropriate direct interpretation of some disaster-
specific, nautical or legal terms, for example, the interpreter
should be so aware and be able to provide the most appropriate
interpretation. The interpreter should likely make the recipient
aware of the issue and the interpreter and recipient can then work
to develop a consistent and appropriate set of descriptions of these
terms in that language that can be used again, when appropriate.
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Understand and adhere to their role as interpreters
without deviating into a role as a counselor, legal advisor, or other
roles (particularly during the assistance application process, in
administrative hearings, or public safety contexts).
Some recipients, such as certain private nonprofit organizations or
administrative courts, may have additional self-imposed requirements
for interpreters. Where individual rights depend on precise, complete,
and accurate interpretation or translations, such as in the context of
application for disaster or food and shelter assistance or
administrative hearings, the use of certified interpreters is strongly
encouraged.\9\ Where the process is lengthy, the interpreter will
likely need breaks and team interpreting may be appropriate to ensure
accuracy and to prevent errors caused by mental fatigue of
interpreters.
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\9\ For those languages in which no formal accreditation or
certification currently exists, recipients should consider a formal
process for establishing the credentials of the interpreter.
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While the quality and accuracy of language services is critical,
the quality and accuracy of language services is nonetheless part of
the appropriate mix of LEP services required. The quality and accuracy
of language services at a State-operated emergency assistance center,
for example, must be extraordinarily high, while the quality and
accuracy of language services in recreational programs sponsored by a
DHS recipient need not meet the same exacting standards.
Finally, when interpretation is needed and is reasonable, it should
be provided in a timely manner. To be meaningfully effective, language
assistance should be timely. While there is no single definition for
``timely'' applicable to all types of interactions at all times by all
types of recipients, one clear guide is that the language assistance
should be provided at a time and place that avoids the effective denial
of the service, benefit, or right at issue or the imposition of an
undue burden on or delay in important rights, benefits, or services to
the LEP person. For example, when the timeliness of services is
important, such as with certain activities of DHS recipients providing
evacuation coordination, food and shelter, medical care, and fire and
rescue services, and when important legal rights are at issue, a
recipient would likely not be providing meaningful access if it had one
bilingual staffer available one day a week to provide the services.
Such conduct would likely result in delays for LEP persons that would
be significantly greater than those for English proficient persons.
Conversely, where access to or exercise of a service, benefit, or right
is not effectively precluded by a reasonable delay, language assistance
can likely be delayed for a reasonable period.
Hiring Bilingual Staff. When particular languages are
encountered often, hiring bilingual staff offers one of the best, and
often most economical, options. Recipients can, for example, fill
public contact and other positions involving potential contact with LEP
individuals, such as 911 operators, law enforcement officers, fire
safety educators, or application takers, with staff who are bilingual
and competent to communicate directly with LEP persons in their
language. If bilingual staff are
[[Page 34471]]
also used to interpret between English speakers and LEP persons, or to
orally interpret written documents from English into another language,
they should be competent in the skill of interpreting. Being bilingual
does not necessarily mean that a person has the ability to interpret.
In addition, there may be times when the role of the bilingual employee
may conflict with the role of an interpreter. Effective management
strategies, including any appropriate adjustments in assignments and
protocols for using bilingual staff, can ensure that bilingual staff
are fully and appropriately utilized. When bilingual staff cannot meet
all of the language service obligations of the recipient, the recipient
should turn to other options.
Hiring Staff Interpreters. Hiring interpreters may be most
helpful where there is a frequent need for interpreting services in one
or more languages. Depending on the facts, sometimes it may be
necessary and reasonable to provide such on-site interpreters in order
to assure accurate and meaningful communication with an LEP person.
Contracting for Interpreters. Contract interpreters may be
a cost-effective option when there is no regular need for interpreters
in a particular language. In addition to commercial and other private
providers, many community-based organizations and mutual assistance
associations provide interpretation services for particular languages.
Contracting with and providing training regarding the recipient's
programs and processes to these organizations can be a cost-effective
option for providing language services to LEP persons from those
language groups.
Using Telephone Interpreter Lines. Telephone interpreter
service lines often offer speedy interpreting assistance in many
different languages. They may be particularly appropriate where the
mode of communicating with an English proficient person would also be
over the phone. Although telephonic interpretation services are useful
in many situations, it is important to ensure that, when using such
services, the interpreters used are competent to interpret any
technical or legal terms specific to a particular program that may be
important parts of the conversation. Nuances in language and non-verbal
communication can often assist an interpreter and cannot be recognized
over the phone. Video teleconferencing may sometimes help to resolve
this issue where necessary. In addition, where documents are being
discussed, it is important to give telephonic interpreters adequate
opportunity to review the document prior to the discussion and any
logistical problems should be addressed.
Using Community Volunteers. In addition to consideration
of bilingual staff, staff interpreters, or contract interpreters
(either in person or by telephone) as options to ensure meaningful
access by LEP persons, use of recipient-coordinated community
volunteers, working with, for instance, community-based organizations,
may provide a cost-effective supplemental language assistance strategy
under appropriate circumstances. They may be particularly useful in
providing language access for a recipient's less crucial programs and
activities. To the extent the recipient relies on community volunteers,
it is often best to use volunteers who are trained in the information
or services of the program and can communicate directly with LEP
persons in their language. Just as with all interpreters, community
volunteers used to interpret between English speakers and LEP persons,
or to orally translate documents, should be competent in the skill of
interpreting and knowledgeable about applicable confidentiality and
impartiality rules. Recipients should consider formal arrangements with
community-based organizations that provide volunteers to address these
concerns and to help ensure that services are available more regularly.
Use of Family Members, Friends, or Other Applicants,
Detainees, or Inmates 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,
acquaintance, or other applicant), in place of or as a supplement to
the free language services expressly offered by the recipient. LEP
persons may feel more comfortable when a trusted family member, friend,
fellow inmate or detainee, or other applicant acts as an interpreter.
In addition, in exigent circumstances that are not reasonably
foreseeable, temporary use of interpreters not provided by the
recipient may be necessary. However, with proper planning and
implementation, recipients should be able to avoid most such
situations.
Recipients, however, should take special care to ensure that
family, legal guardians, caretakers, and other informal interpreters
are appropriate in light of the circumstances and subject matter of the
program, service or activity, including protection of the recipient's
own administrative or mission-related interests in accurate
interpretation. In many circumstances, family members (especially
children), friends, inmates, detainees, or other applicants, are not
competent to provide quality and accurate interpretations. Issues of
confidentiality, privacy, or conflict of interest may also arise. LEP
individuals may feel uncomfortable revealing or describing sensitive,
confidential, or potentially embarrassing medical, law enforcement,
family or financial information to a family member, friend,
acquaintance, or member of the local community.\10\ In addition, such
informal interpreters may have a personal connection to the LEP person
or an undisclosed conflict of interest, such as the desire to obtain
greater assistance than the LEP person from a locally administered
mitigation program. For these reasons, when oral language services are
necessary, recipients should generally offer competent interpreter
services free of cost to the LEP person. For some DHS recipients, such
as those providing disaster assistance, performing law enforcement
functions, this is particularly true in processing applications;
conducting administrative hearings, managing situations in which
health, safety, or access to important benefits and services are at
stake; or when credibility and accuracy are important to protect an
individual's rights and access to important services.
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\10\ For example, special circumstances of confinement may raise
additional serious concerns regarding the voluntary nature,
conflicts of interest, and privacy issues surrounding the use of
inmates and detainees as interpreters, particularly where an
important right, benefit, service, disciplinary concern, or access
to personal or law enforcement information is at stake. In some
situations, inmates could potentially misuse information they
obtained in interpreting for other inmates. In addition to ensuring
competency and accuracy of the interpretation, recipients should
take these special circumstances into account when determining
whether an inmate or detainee makes a knowing and voluntary choice
to use another inmate or detainee as an interpreter.
---------------------------------------------------------------------------
An example of such a case is when fire service officers investigate
an alleged case of arson. In such a case, use of family members or
neighbors to interpret for the alleged victim, perpetrator, or
witnesses may raise serious issues of competency, confidentiality, and
conflict of interest and is thus inappropriate. While issues of
competency, confidentiality, and conflict of interest in the use of
family members (especially children), friends, inmates, detainees, or
other applicants often make their use inappropriate, the
[[Page 34472]]
use of these individuals as interpreters may be an appropriate option
where proper application of the four factors would lead to a conclusion
that recipient-provided services are not necessary. An example of this
is a voluntary educational tour of a firehouse offered to the general
public. There, the importance and nature of the activity may be
relatively low and unlikely to implicate issues of confidentiality,
conflict of interest, or the need for accuracy. In addition, the
resources needed and costs of providing language services may be high.
In such a setting, an LEP person's use of family, 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 and/or testimony are critical for law enforcement,
adjudicatory or legal reasons, or where the competency of the LEP
person's interpreter is not established, a recipient might decide 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, there
may be additional issues of competency, confidentiality, or conflict of
interest when the choice involves using children as interpreters. The
recipient should take care to ensure that the LEP person's choice is
voluntary, that the LEP person is aware of the possible problems if the
preferred interpreter is a minor child, and that the LEP person knows
that the recipient at no cost would provide a competent interpreter.
B. Written Language Services (Translation)
Translation is the replacement of a written text from one language
(source language) into an equivalent written text in another language
(target language).
What Documents Should Be Translated? After applying the four-factor
analysis, a recipient may determine that an effective LEP plan for its
particular program or activity includes the translation of vital
written materials into the language of each frequently encountered LEP
group eligible to be served and/or likely to be affected by the
recipient's program. Such written materials could include, for example:
Complaint forms.
Intake forms with the potential for important
consequences.
Written notices of rights, denial, loss, or decreases in
benefits or services, and other hearings.
Notices of disciplinary action.
Notices advising LEP persons of free language assistance.
Procedural guidebooks.
Applications to participate in a recipient's program or
activity or to receive recipient benefits or services.
Whether or not a document (or the information it solicits) is
``vital'' may depend upon the importance of the program, information,
encounter, or service involved, and the consequence to the LEP person
if the information in question is not provided accurately or in a
timely manner. For instance, applications for recreational programs
should not generally be considered vital, whereas applications for
disaster assistance could be considered vital. Where appropriate,
recipients are encouraged to create a plan for consistently
determining, over time and across its various activities, what
documents are ``vital'' to the meaningful access of the LEP populations
they serve.
Classifying a document as vital or non-vital is sometimes
difficult, especially in the case of outreach materials like brochures
or other information on rights and services. Awareness of rights or
services is an important part of ``meaningful'' access. Lack of
awareness that a particular program, right, or service exists may
effectively deny LEP individuals meaningful access. Thus, where a
recipient is engaged in community outreach activities in furtherance of
its activities, it should regularly assess the needs of the populations
frequently encountered or affected by the program or activity to
determine whether certain critical outreach materials should be
translated. 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, religious, and community
organizations to spread a message.
Sometimes a document includes both vital and non-vital information.
This may be the case when the document is very large. It may also be
the case when the title and a phone number for obtaining more
information on the contents of the document in frequently encountered
languages other than English is critical, but the document is sent out
to the general public and cannot reasonably be translated into many
languages. Thus, vital information may include, for instance, the
provision of information in appropriate languages other than English
regarding where a LEP person might obtain an interpretation or
translation of the document.
Into What Languages Should Documents Be Translated? The languages
spoken by the LEP individuals with whom the recipient has contact
determine the languages into which vital documents should be
translated. A distinction should be made however, between languages
that are frequently encountered by a recipient and less commonly
encountered languages. Many recipients serve communities in large
cities or across the country. They regularly serve LEP persons who
speak dozens and sometimes over 100 different languages. To translate
all written materials into all of those languages is unrealistic.
Although recent technological advances have made it easier for
recipients to store and share translated documents, such an undertaking
would incur substantial costs and require substantial resources.
Nevertheless, well-substantiated claims of lack of resources to
translate all vital documents into dozens of languages do not
necessarily relieve the recipient of the obligation to translate those
documents into at least several of the more frequently-encountered
languages and to set benchmarks for continued translations into the
remaining languages over time. As a result, the extent of the
recipient's obligation to provide written translations of documents
should be determined by the recipient on a case-by-case basis, looking
at the totality of the circumstances in light of the four-factor
analysis. Because translation is a one-time expense, consideration
should be given to whether the upfront costs of translating a document
(as opposed to oral interpretation) should be amortized over the likely
lifespan of the document when applying this four-factor analysis.
Safe Harbor. Many recipients would like to ensure with greater
certainty that they comply with their obligations to provide written
translations in languages other than English. Paragraphs (a) and (b)
outline the circumstances that can provide a ``safe harbor'' for
recipients regarding the requirements for translation of written
materials. A ``safe harbor'' means that if a recipient provides written
translations under these circumstances, such action will be considered
strong evidence of compliance with the recipient's written-translation
obligations.
[[Page 34473]]
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.
Even if the safe harbors are not used, if written translation of a
certain document(s) would be so burdensome as to defeat the legitimate
objectives of its program, the translation of the written materials is
not necessary. Other ways of providing meaningful access, such as
effective oral interpretation of certain vital documents, might be
acceptable under such circumstances.
Pursuant to the safe harbor provisions, the following actions will
be considered strong evidence of compliance with the recipient's
written-translation obligations:
a. The DHS recipient provides written translations of vital
documents for each eligible LEP language group that constitutes five
percent or 1,000, whichever is less, of the population of persons
eligible to be served or likely to be affected or encountered.
Translation of other documents, if needed, can be provided orally; or,
b. If there are fewer than 50 persons in a language group that
reaches the five percent trigger in the above, the recipient does not
translate vital written materials but provides written notice in the
primary language of the LEP language group of the right to receive
competent oral interpretation of those written materials, free of cost.
These safe harbor provisions apply to the translation of written
documents only. They do not affect the requirement to provide
meaningful access to LEP individuals through competent oral
interpreters where oral language services are needed and are
reasonable. For example, homeless shelters, correctional facilities and
detention centers should, where appropriate, ensure that rules have
been explained to LEP persons in the language(s) they understand prior
to taking action against them that would deprive them of certain
rights.
Competence of Translators. As with oral interpreters, translators
of written documents should be competent. Many of the same
considerations apply. However, the skill of translating is very
different from the skill of interpreting, and a person who is a
competent interpreter may or may not be competent to translate.
Particularly where legal or other vital documents are being
translated, competence can often be achieved by use of certified
translators. Certification or accreditation may not always be possible
or necessary.\11\ Having a second, independent translator ``check'' the
work of the primary translator can often ensure competence.
Alternatively, one translator can translate the document, and a second,
independent translator could translate it back into English to check
that the appropriate meaning has been conveyed. This is called ``back
translation.''
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\11\ For those languages in which no formal accreditation
currently exists, a particular level of membership in a professional
translation association can provide some indicator of
professionalism.
---------------------------------------------------------------------------
Translators should understand the expected reading level of the
audience and, where appropriate, have fundamental knowledge about the
target language group's vocabulary and phraseology. Sometimes direct
translation of material results in a translation that is written at a
much more difficult level than the English language version or has no
relevant equivalent meaning.\12\ Community organizations may be able to
help consider whether a document is written at a good level for the
audience. Likewise, consistency in the words and phrases used to
translate terms of art, legal, or other technical concepts helps avoid
confusion by LEP individuals and may reduce costs. Creating or using
already-created glossaries of commonly used terms may be useful for LEP
persons and translators and cost effective for the recipient. Providing
translators with examples of previous accurate translations of similar
material by the recipient, other recipients, or Federal agencies may be
helpful.
---------------------------------------------------------------------------
\12\ For instance, there may be languages which do not have an
appropriate direct translation of some legal or program-specific
terms and the translator should be able to provide an appropriate
translation. The translator should likely also make the recipient
aware of this. Recipients can then work with translators to develop
a consistent and appropriate set of descriptions of these terms in
that language that can be used again, when appropriate. Recipients
will find it more effective and less costly if they try to maintain
consistency in the words and phrases used to translate terms of art
and legal or other technical concepts. Creating or using already-
created glossaries of commonly used terms may be useful for LEP
persons and translators and cost effective for the recipient.
Providing translators with examples of previous translations of
similar material by the recipient, other recipients, or Federal
agencies may be helpful.
---------------------------------------------------------------------------
While quality and accuracy of translation services is critical, the
quality and accuracy of translation services is nonetheless part of the
appropriate mix of LEP services required. For instance, documents that
are simple and have no legal or other consequence for LEP persons who
rely on them may use translators that are less skilled than important
documents with legal or other information upon which reliance has
important consequences (including, e.g., information or documents of
DHS recipients regarding certain law enforcement, health, and safety
services and certain legal rights). The permanent nature of written
translations, however, imposes additional responsibility on the
recipient to ensure that the quality and accuracy permit meaningful
access by LEP persons.
VII. Elements of An Effective Plan on Language Assistance for LEP
Persons
After 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 they serve. Recipients have considerable 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 DHS recipients,
such as recipients serving very few LEP persons and recipients with
very limited resources, may choose not to develop a written LEP plan.
However, the absence of a written LEP plan does not obviate the
underlying obligation to ensure meaningful access by LEP persons to a
recipient's program 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
[[Page 34474]]
having significant contact with LEP persons, such as schools, religious
organizations, community groups, and groups working with new immigrants
can be very helpful in providing important input into this planning
process from the beginning. The following five steps may be helpful in
designing an LEP plan and are typically part of effective
implementation plans:
1. Identifying LEP Individuals Who Need Language Assistance
The first two factors in the four-factor analysis require an
assessment of the number or proportion of LEP individuals eligible to
be served or encountered and the frequency of encounters. This requires
recipients to identify LEP persons with whom it has contact.
One way to determine the language of communication is to use
language identification cards (or ``I speak'' cards), which invite LEP
persons to identify their language needs to staff. Such cards, for
instance, might say, ``I speak Spanish'' in both Spanish and English,
``I speak Vietnamese'' in both English and Vietnamese, etc. To reduce
costs of compliance, the Federal Government has made a set of these
cards available on the Internet. The Census Bureau ``I speak'' card can
be found and downloaded at http://www.lep.gov. 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 individuals 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 knows about LEP policies and procedures; and
Staff having contact with the public, or with individuals
in the recipient's custody, is trained to work effectively with in-
person and telephone interpreters.
Recipients may want to include this training as part of the
orientation for new employees. It is important to ensure that all
employees in public contact positions, as well as employees who
potentially interact with individuals in the recipient's custody, are
properly trained. Recipients have flexibility in deciding the manner in
which the training is provided. The more frequent the contact with LEP
persons, the greater the need will be for in-depth training. Staff with
little or no contact with LEP persons may only need to be aware of an
LEP plan. However, management staff, even if they do not interact
regularly with LEP persons, should be fully aware of and understand the
plan so they can reinforce its importance and ensure its implementation
by staff.
4. Providing Notice to LEP Persons
Once an agency has decided, based on the four factors, that it will
provide language services, it is important for the recipient to let LEP
persons know that those services are available and that they are free
of charge. Recipients should provide this notice in a language LEP
persons will understand. Examples of notification that recipients
should consider include:
Posting signs in intake areas and other entry points. When
language assistance is needed to ensure meaningful access to
information and services, it is important to provide notice in
appropriate languages in intake areas or at initial points of contact
so that LEP persons can learn how to access those language services.
This is particularly true in areas with high volumes of LEP persons
seeking access to certain assistance, such as disaster, medical, or
other critical assistance from DHS recipients. For instance, signs in
intake offices could state that free language assistance is available.
The signs should be translated into the most common languages
encountered. They should explain how to get the language help.\13\
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\13\ 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 agency. Announcements could be in, for instance,
brochures, booklets, and in outreach and recruitment information. These
statements should be translated into the most common languages and
could be ``tagged'' onto the front of common documents.
Working with community-based organizations and other
stakeholders to inform LEP individuals of the recipients' services,
including the availability of language assistance services.
Using a telephone voice mail menu. The menu could be in
the most common languages encountered. It should provide information
about available language assistance services and how to get them.
Including notices in local newspapers in languages other
than English.
Providing notices on non-English-language radio and
television stations about the available language assistance services
and how to get them.
Presentations and/or notices at schools and religious
organizations.
5. Monitoring and Updating the LEP Plan
Recipients should, where appropriate, have a process for
determining, on an ongoing basis, whether new documents, programs,
services, and activities need to be made accessible for LEP
individuals, 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 the following:
Current LEP populations in service area or population
affected or encountered.
Frequency of encounters with LEP language groups.
Nature and importance of activities to LEP persons.
Availability of resources, including technological
advances and sources of additional resources, and the costs imposed.
Whether existing assistance is meeting the needs of LEP
persons.
[[Page 34475]]
Whether staff knows and understands the LEP plan and how
to implement it.
Whether identified sources for assistance are still
available and viable.
In addition to these five elements, effective plans set clear
goals, management accountability, and opportunities for community input
and planning throughout the process.
VIII. Voluntary Compliance Effort
The goal for Title VI and Title VI regulatory enforcement is to
achieve voluntary compliance. The requirement to provide meaningful
access to LEP persons is enforced and implemented by DHS through the
procedures identified in the Title VI regulations. These procedures
include complaint investigations, compliance reviews, efforts to secure
voluntary compliance, and technical assistance.
The Title VI regulations provide that DHS will investigate when it
receives a complaint, report, or other information that alleges or
indicates possible noncompliance with Title VI or its regulations. If
the investigation results in a finding of compliance, DHS will inform
the recipient in writing of this determination, including the basis for
the determination. DHS uses voluntary mediation to resolve most
complaints. However, if a complaint is fully investigated and results
in a finding of noncompliance, DHS must inform the recipient of the
noncompliance through a Letter of Findings that sets out the areas of
noncompliance and the steps that must be taken to correct the
noncompliance. It must attempt to secure voluntary compliance through
informal means. If the matter cannot be resolved informally, DHS must
secure compliance through the termination of Federal assistance after
the DHS recipients have been given an opportunity for an administrative
hearing and/or by referring the matter to the Department of Justice
Civil Rights Division to seek injunctive relief or other enforcement
proceedings. DHS engages in voluntary compliance efforts and provides
technical assistance to recipients at all stages of an investigation.
During these efforts, DHS proposes reasonable timetables for achieving
compliance and consults with and assists recipients in exploring cost-
effective ways of coming into compliance. In determining a recipient's
compliance with the Title VI regulations, DHS's primary concern is to
ensure that the recipient's policies and procedures provide meaningful
access for LEP persons to the recipient's programs and activities.
While all recipients must work toward building systems that will
ensure access for LEP individuals, DHS acknowledges that the
implementation of a comprehensive system to serve LEP individuals is a
process and that a system will evolve over time as it is implemented
and periodically reevaluated. As recipients take reasonable steps to
provide meaningful access to Federally assisted programs and activities
for LEP persons, DHS will look favorably on intermediate steps
recipients take that are consistent with this Guidance, and that, as
part of a broader implementation plan or schedule, move their service
delivery system toward providing full access to LEP persons. This does
not excuse noncompliance but instead recognizes that full compliance in
all areas of a recipient's activities and for all potential language
minority groups may reasonably require a series of implementing actions
over a period of time. However, in developing any phased implementation
schedule, DHS recipients should ensure that the provision of
appropriate assistance for significant LEP populations or with respect
to activities having a significant impact on the health, safety, legal
rights, or livelihood of beneficiaries is addressed first. Recipients
are encouraged to document their efforts to provide LEP persons with
meaningful access to Federally assisted programs and activities.
IX. Application to Specific Types of Recipients
This Guidance is issued for recipients that receive Federal funds
from the Department of Homeland Security. There may be cases in which
entities receive Federal funds from other Federal agencies as well as
from DHS. Entities that receive funding from other Federal agencies may
also look to the LEP guidance issued by those agencies, which are
consistent with the DHS Guidance. Other Federal agencies that have
issued similar guidance with regard to limited English proficient
persons include the Departments of Commerce, Education, Health and
Human Services, Energy, Housing and Urban Development, Labor, Interior,
State Transportation, Treasury, and Veterans Affairs, and the
Environmental Protection Agency. An up-to-date listing of Federal
agencies that have published LEP Guidance can be found at http://www.lep.gov/. The Department of Justice LEP Recipient Guidance in
particular provides many helpful examples of how to apply the four-
factor analysis when making decisions about the need for translating
documents, obtaining interpreter, and hiring bilingual staff. See 65 FR
50123 Part IX (August 16, 2000). These examples are incorporated by
reference herein.
As explained in this Guidance, all recipients of Federal financial
assistance from DHS must meet the obligation to take reasonable steps
to ensure access to programs and activities by LEP persons. This
Guidance clarifies the Title VI regulatory obligation to address the
language needs of LEP persons, in appropriate circumstances and in a
reasonable manner by applying the four-factor analysis. In the context
of emergency planning and response, health and safety, immigration and
other detention, and law enforcement operations, where the potential
for greater consequences are at issue, DHS will look for strong
evidence that recipients have taken reasonable steps to ensure access
to services to LEP persons. The lessons learned from natural disasters,
for example, underscore the need to provide meaningful access to LEP
persons who are otherwise eligible in all aspects of Federally assisted
programs that serve the public.
Margo Schlanger,
Officer for Civil Rights and Civil Liberties.
[FR Doc. 2010-14630 Filed 6-16-10; 8:45 am]
BILLING CODE 9110-9B-P