[Federal Register Volume 77, Number 46 (Thursday, March 8, 2012)]
[Proposed Rules]
[Pages 13980-13990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4377]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 77, No. 46 / Thursday, March 8, 2012 /
Proposed Rules
[[Page 13980]]
DEPARTMENT OF AGRICULTURE
7 CFR Part 15
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: Proposed final guidance.
-----------------------------------------------------------------------
SUMMARY: The United States Department of Agriculture (USDA) is
publishing the proposed 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: Comments must be received in writing on or before May 7, 2012.
ADDRESSES: Written comments via letter and facsimile are invited from
interested persons and organizations. Comments should be sent to
Kenneth Baisden, Chief, Policy Division, or Anna G. Stroman, Team
Leader, Policy Division, 300 7th Street SW., Washington, DC 20250, Fax:
(202) 690-2345. Comments may also be submitted by email at
[email protected] or [email protected].
FOR FURTHER INFORMATION CONTACT: This document is available for review
on the USDA web site at www.usda.gov/da/cr.html. Arrangements to
receive this guidance in an alternative format may be made by calling
(202) 205-5953 or TTY at 1 (800) 877-8642 or (202) 720-2600. Upon
request, USDA will supply appropriate aids, such as readers or print
magnifiers, to persons with disabilities who need assistance to review
the comments or other documents in the public record for this guidance.
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 sub-
recipients (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 proposed
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 can 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 can 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.
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 Indo-
European languages,\1\ and almost 7 million speak an Asian or Pacific
Island language at home. If these people have
[[Page 13981]]
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.\2\
---------------------------------------------------------------------------
\1\ 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, Guajarati, Punjabi, Urdu, Greek,
Baltic and Iranian languages.
\2\ Other languages include Hungarian, Arabic, Hebrew, languages
of Africa, native North American languages, including the American
Indian, Alaska native languages, and some indigenous languages of
Central and South America.
---------------------------------------------------------------------------
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 accessible to
otherwise eligible LEP persons. The Federal Government is committed to
improving the accessibility of these programs and activities to
eligible LEP persons, a goal that reinforces its equally important
commitment to promoting programs and activities designed to help people
learn English. Recipients should not overlook the long-term positive
impacts of incorporating or offering English as a Second Language (ESL)
programs along 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.\3\
---------------------------------------------------------------------------
\3\ 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.
---------------------------------------------------------------------------
In certain circumstances, failure to ensure that LEP persons can
effectively participate in or benefit from federally assisted programs
and activities may violate the prohibition under Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d, and Title VI regulations against
national origin discrimination. The purpose of this policy guidance is
to assist recipients in fulfilling their responsibilities to provide
meaningful access to LEP persons under existing law. This policy
guidance clarifies existing legal requirements by providing a
description of the factors recipients should consider in fulfilling
their responsibilities to LEP persons.\4\ 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.
---------------------------------------------------------------------------
\4\ 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.
---------------------------------------------------------------------------
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 they face challenges
communicating in English. 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
have taken the position that this is not the case and will continue to
do so. Accordingly, we will strive to ensure that federally-assisted
programs and activities work in a way that is effective for all
eligible beneficiaries, including those with limited English
proficiency.
I. Legal Authority.
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d, states:
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 the Supplemental Nutrition
Assistance Program (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
[[Page 13982]]
areas where a substantial number of potentially eligible households
speak a language other than English.
USDA regulations at 7 CFR 15.3b(1)-(2) provide in part:
(1) A recipient under any program to which the regulations in this
part apply may not, directly or through contractual or other
arrangements on the ground of race, color, or national origin:
(i.) Deny an individual any service, financial aid, or other
benefit provided under the program;
(ii.) Provide any service, financial aid, or other benefit, to an
individual which is different, or is provided in a different manner,
from that provided to others under the program;
(iii.) Subject an individual to segregation or separate treatment
in any matter related to his receipt of any service, financial aid, or
other benefit under the program;
(iv.) Restrict 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;
(v.) Treat an individual differently from others in determining
whether he or she satisfies any admission, enrollment, quota,
eligibility, membership, or other requirement or condition that
individuals must meet in order to be provided any service, financial
aid, or other benefit provided under the program;
(vi.) Deny an individual an opportunity to participate in the
program through the provisions of services or otherwise or afford him
or her an opportunity to do so that is different from that afforded
others under the program; or
(vii.) Deny a person the opportunity to participate as a member of
a planning or advisory body that is an integral part of the program.
(2) A recipient, in determining the types of services, financial
aid, or other benefits or facilities that will be provided under any
such program, or the class of individuals to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program or the class of individuals to be
afforded an opportunity to participate in any such program, may not,
directly or through contractual or other arrangements, utilize criteria
or methods of administration that 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 to
individuals of a particular race, color, or national origin.
In addition, USDA regulations implementing the Food Stamp Act of
1977, published at 7 CFR 15.3(6)(i)-(ii), provide in part:
Based on the estimated total number of low-income households in
a project area which speak the same non-English language (a single-
language minority), the State agency shall provide bilingual program
information and certification materials, and staff or interpreters *
* *.
In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court
interpreted regulations promulgated by the former Department of Health,
Education, and Welfare, 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, which had a significant number of non-English speaking
students of Chinese origin, was required to take reasonable steps to
provide them with a meaningful opportunity to participate in federally
funded educational programs.
On August 11, 2000, Executive Order 13166, ``Improving Access to
Services for Persons with Limited English Proficiency,'' was issued; 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.''
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.\5\ 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.
---------------------------------------------------------------------------
\5\ 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.
---------------------------------------------------------------------------
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.
II. Who is covered?
USDA regulations require all recipients of Federal financial
assistance from USDA to provide meaningful access to LEP persons.\6\
Federal financial assistance includes grants, below-market loans,
training, and use of equipment, donations of surplus
[[Page 13983]]
property, and other assistance. Covered entities include, but are not
limited to:
---------------------------------------------------------------------------
\6\ 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.
Sub-recipients likewise are covered when Federal funds are passed
through from a 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.\7\ This is true even if only
one part of the recipient receives the Federal financial assistance.\8\
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.
---------------------------------------------------------------------------
\7\ 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.
\8\ 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).
---------------------------------------------------------------------------
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.\9\
---------------------------------------------------------------------------
\9\ Recipients should also be mindful of their responsibilities
under the Americans with Disabilities Act of 1990 and Sec. 504 of
the Rehabilitation Act of 1973 in meeting their obligation to ensure
access to LEP individuals with disabilities.
---------------------------------------------------------------------------
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 can
be 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
SNAP benefits 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:
I. The number or proportion of LEP persons eligible to be served or
likely to be encountered within the area serviced by the recipient;
II. The frequency with which LEP persons come in contact with the
program or activity;
III. The nature and importance of the program, activity, or service
to people's lives; and
IV. 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 important than
others and/or have greater impact on or contact with LEP persons, and
thus might 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 following four factors to the various kinds of
contacts with the public to assess language needs and decide which
reasonable steps should be taken to ensure meaningful access for LEP
persons.
I. The Number or Proportion of LEP Persons Eligible To Be Served or
Likely To Be Encountered Within the Area Serviced by the Recipient
One factor in determining which 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 activities 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 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 SNAP
certification office
[[Page 13984]]
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.\10\ 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.
---------------------------------------------------------------------------
\10\ 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 might 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 might be
spoken by people who are also overwhelmingly proficient in English.
Thus, they might 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.
---------------------------------------------------------------------------
II. The Frequency With Which LEP Persons Come in Contact With the
Program or Activity
Recipients should assess, as accurately as possible, the frequency
with which they have or should have contact with LEP persons 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 LEP persons on a one-time basis
will be very different from 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 might require certain
assistance in Spanish. Less frequent contact with different language
groups might suggest a different and less intensified solution. If an
LEP person accesses a program or service on a daily basis, a recipient
has greater duties than if the same person's program or activity
contact is unpredictable or infrequent. However, 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 need not be
intricate; it can 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.
III. The Nature and Importance of the Program, Activity or Service
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 might 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. Also, a
recipient needs to determine if the media used to publicize a benefit
or service, or a delay in providing information on a program, service,
or benefit might have serious, negative implications for LEP persons.
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.
IV. 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, the following might
help reduce costs: 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, or centralizing interpreter and translator services to
achieve economies of scale; the formalized use of qualified community
volunteers can also help reduce costs.\11\
[[Page 13985]]
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
might 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.
---------------------------------------------------------------------------
\11\ Small recipients with limited resources might find that
entering into a bulk telephonic interpretation service contract will
prove cost effective.
---------------------------------------------------------------------------
The four-factor analysis necessarily implicates the ``mix'' of
appropriate LEP services. Recipients have two main ways to provide
language services: (1) Oral interpretation either in person or via
telephone interpretation service (hereinafter ``interpretation'') and
(2) written translation (hereinafter ``translation''). Oral
interpretation can range from on-site interpreters for critical
services provided to commercially available telephonic interpretation
services that are accessed by a high volume of LEP persons. 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 recipient office
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, social
service recipients having a service area with a significant Hispanic
LEP population might 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 might 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 might 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 might 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 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. Assessment
of competency involves more than self-identification as bilingual. Some
bilingual staff and community volunteers, for instance, might 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 might 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 particular to the recipient's program or activity and of
any particularized vocabulary and phraseology used by the LEP person
who is being assisted; \12\
---------------------------------------------------------------------------
\12\ Many languages have ``regionalisms,'' or differences in
usage. For instance, a word that night be understood to mean
something in Spanish for someone from Cuba might 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 so
that these terms can be used again, when appropriate.
---------------------------------------------------------------------------
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 might 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 can result in the denial or
reduction of services or benefits, the use of certified interpreters is
strongly encouraged.\13\ Where such proceedings are lengthy, the
interpreter will likely need breaks, and team interpreting might be
appropriate to ensure accuracy and to prevent errors caused by mental
fatigue of interpreters.
---------------------------------------------------------------------------
\13\ For those languages in which no formal accreditation or
certification exist, recipients should consider a formal process for
establishing the credentials of the interpreter.
---------------------------------------------------------------------------
While quality and accuracy of language services is critical, the
quality and accuracy of language services is nonetheless part of the
appropriate mix of appropriate LEP services. 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 might
not need to meet the same exacting standards.
Finally, when interpretation is needed and is reasonable, it should
be provided in a timely manner. To be effective, language assistance
should be timely. While there is no single definition for ``timely''
that is 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 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
[[Page 13986]]
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,
services, or benefits 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
staffs 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 might 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 staffs 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 can 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 can 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 interpreters 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 can 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 might 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 that 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 can provide a cost-
effective supplemental language assistance strategy under appropriate
circumstances. These types of volunteers can 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 who 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 be knowledgeable
about applicable confidentiality and impartiality rules. Recipients
should consider formal arrangements with community-based organizations
that provide volunteers to address these concerns and 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. 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.
[[Page 13987]]
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 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, there may be additional issues of competency,
confidentiality, or conflict of interest when the choice involves using
children as interpreters.
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).
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 should not generally be
considered 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.
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 exist 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, 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 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 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
[[Page 13988]]
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)
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. 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.\14\ 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.''
---------------------------------------------------------------------------
\14\ 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.\15\
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.
---------------------------------------------------------------------------
\15\ 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.
---------------------------------------------------------------------------
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. 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 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 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.
[[Page 13989]]
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 five 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 are 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 http://www.usdoj.gov/crt/cor/13166.htm. When
records are normally kept of past interactions with members of the
public, the language of the LEP person can be included as part of the
record. In addition to helping employees identify the language of LEP
persons they encounter, this process will help in future applications
of the first two factors of the four-factor analysis. In addition,
posting notices in commonly encountered languages notifying LEP persons
of language assistance will encourage them to self-identify.
(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. 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 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; \16\
---------------------------------------------------------------------------
\16\ The Social Security Administration has made such signs
available at http://www.ssa.gov/multilanguage/langlist1.htm. These
signs could, for example, be modified for recipient use.
---------------------------------------------------------------------------
--Stating in outreach documents that language services are available
from the recipient. Announcements could be in, for instance, brochures,
booklets, and in outreach and recruitment information. These statements
should be translated into the most common languages and ``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; and
--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,
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
[[Page 13990]]
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 the five elements above, 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 4330-1,
``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 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 might 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 might identify language access
obligations/requirements. Recipients might meet these obligations, as
long as they do not conflict with or set a lower standard than is
required under Title VI and Title VI regulations. 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: January 30, 2012.
Thomas J. Vilsack,
Secretary.
[FR Doc. 2012-4377 Filed 3-7-12; 8:45 am]
BILLING CODE 3410-9R-P