Federal Register: June 17, 2010 (Volume 75, Number 116)
DOCID: fr17jn10-90 FR Doc 2010-14630
DEPARTMENT OF HOMELAND SECURITY
Homeland Security Department
Docket ID: [DHS Docket No. DHS-2009-0032]
DOCUMENT ACTION: Notice; proposed policy guidance.
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
DATES: Written comments are invited from interested persons and organizations no later than July 11, 2010.
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
issued pursuant to Executive Order 13166 and is consistent with governmentwide guidance previously issued by the Department of Justice.
Guidance to Federal Financial Assistance Recipients:
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 1964National 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 Governmentwide
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 DHSspecific examples set out in this guidance explaining and/or highlighting how those Federalwide 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).
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 Spanishspeakers, 28.2 percent of all Chinesespeakers, 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 longterm 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\ \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.
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
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.
\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.
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 nonprofits 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. 2000d1.
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 nationalorigin discrimination. In Lau, a San Francisco school district that had a significant number of nonEnglish 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 nonFederal 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 groupsthe
types of regulations that form the legal basis for the part of
Executive Order 13166 that applies to Federally assisted programs and activitiesthe Executive Order remains in force.
\3\ The memorandum noted that some commenters have interpreted Sandoval as impliedly striking down the disparateimpact 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 disparateimpact regulations; * * *. We cannot help observing, however, how strange it is to say that disparateimpact 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 disparateimpact 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.
This guidance document is published pursuant to Executive Order 13166 and reflects Assistant Attorney General's
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:
\4\ Pursuant to Executive Order 13166, the meaningful access requirement of the Title VI regulations and the fourfactor analysis set forth in the DOJ LEP Guidance are to additionally apply to the programs and activities of Federal agencies, including DHS.
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 nonprofit organizations, when they receive assistance pursuant to a Presidential declaration of disaster or emergency;
e. Certain nonprofit 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/. Subrecipients likewise are covered when Federal funds are passed through from one recipient to a subrecipient.
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 agencynot just the particular divisionare covered.
\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. 2000d1.
Finally, some recipients operate in jurisdictions in which English has been declared the official language. Nonetheless, DHS recipients continue to be subject to Federal nondiscrimination 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 immigrationrelated 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 factdependent 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 nonprofits.
After applying the above fourfactor analysis, a recipient may
conclude that different language assistance measures are sufficient for
the different types of programs or activities in which it engages. For
instance, some of a recipient's activities will be more important than
others and/or have greater impact on or contact with LEP persons, and
thus may require more in the way of language assistance. The
flexibility that recipients have in addressing the needs of the LEP
populations they serve does not diminish, and should not be used to
minimize, the obligation that those needs be addressed. DHS recipients
should apply the four factors to the various kinds of contacts that
they have with the public to assess language needs and decide what
reasonable steps they should take to ensure meaningful access for LEP persons.
1. The Number or Proportion of LEP Persons Served or Encountered in the Eligible Service Population
One factor in determining what language services recipients should
provide is the number or proportion of LEP persons from a particular
language group served or encountered in the eligible service
population. The greater the number or proportion of these LEP persons,
the more likely language services are needed. Ordinarily, persons
``eligible to be served, or likely to be directly affected, by'' a recipient's
program or activity are those who are served or encountered in the eligible service population. This population will be programspecific, 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 Englishproficient 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.
\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.
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 onetime
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 Spanishspeaking 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 costeffective 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 wellsubstantiated 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. \7\ Small recipients with limited resources may find that entering into a bulk telephonic interpretation service contract will prove cost effective.
This fourfactor 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 onsite interpreters for critical services
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 fourfactor 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 prearranged 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 selfidentification 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:
\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.
Some recipients, such as certain private nonprofit organizations or
administrative courts, may have additional selfimposed 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.
\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.
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 Stateoperated 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.
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.
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 missionrelated 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.
\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
use of these individuals as interpreters may be an appropriate option where proper application of the four factors would lead to a conclusion that recipientprovided 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 fourfactor 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:
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 nonvital 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 nonvital 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, wellsubstantiated 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 frequentlyencountered 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 casebycase basis, looking at the totality of the circumstances in light of the fourfactor analysis. Because translation is a onetime 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 fourfactor 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 writtentranslation 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 frequentlyencountered 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 factintensive, fourfactor 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 writtentranslation 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.''
\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
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
alreadycreated 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 programspecific 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 fourfactor 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
periodicallyupdated 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 costeffective 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
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
1. Identifying LEP Individuals Who Need Language Assistance
The first two factors in the fourfactor 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 fourfactor analysis. In addition, posting notices in commonly encountered languages notifying LEP persons of language assistance will encourage them to selfidentify.
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:
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:
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 indepth 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:
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 8666448360 or TTY 18666448361. Local: 2024011474 or TTY: 202 4010470.