Federal Coordination and Compliance Section Publications

  [Federal Register: April 10, 2003 (Volume 68, Number 69)] [Notices]                [Page 17679-17683] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr10ap03-137]                           ======================================================================= -----------------------------------------------------------------------  NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES    Institute of Museum and Library Services; Guidance to Federal  Financial Assistance Recipients Regarding Title VI Prohibition Against  National Origin Discrimination Affecting Limited English Proficient  Persons  AGENCY: Institute of Museum and Library Services; National Foundation  on the Arts and the Humanities.  ACTION: Notice of proposed guidance.  -----------------------------------------------------------------------  SUMMARY: The Institute of Museum and Library Services (IMLS) publishes  for public comment proposed policy guidance on Title VI's prohibition  against national origin discrimination as it affects limited English  proficient persons.  DATES: Comments must be submitted on or before May 12, 2003. IMLS will  review all comments and will determine what modifications, if any, to  this policy guidance are necessary.  ADDRESSES: Interested persons should submit written comments to Office  of the General Counsel, Institute of Museum and Library Services, 1100  Pennsylvania Avenue, NW., Suite 802, Washington, DC 20506. Comments may  also be submitted to facsimile at 202-606-1077 or by e-mail at  nweiss@imls.gov. FOR FURTHER INFORMATION CONTACT: Nancy Weiss at the above address or by  telephone at 202-606-5414; TDD: 202-606-8636. Arrangements to receive  the policy in an alternative format may be made by contacting the named  individual.  SUPPLEMENTARY INFORMATION: Under IMLS regulations implementing Title VI  of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq. (Title VI),  recipients of federal financial assistance from the IMLS  (``recipients'') have a responsibility to ensure meaningful access by  persons with limited English proficiency (LEP) to their programs and  activities. See 45 CFR 1170. Executive Order 13166, reprinted at 65 FR  50121 (August 16, 2000), directs each Federal agency that extends  assistance subject to the requirements of Title VI to publish, after  review and approval by the Department of Justice, guidance for its  recipients clarifying that obligation. The Executive Order also directs  that all such guidance be consistent with the compliance standards and  framework detailed in DOJ Policy Guidance entitled ``Enforcement of  Title VI of the Civil Rights Act of 1964--National Origin  Discrimination Against Persons with Limited English Proficiency.'' See  65 FR 50123 (August 16, 2000).     On March 14, 2002, the Office of Management and Budget (OMB) issued  a Report To Congress titled ``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 also function as a model  for similar guidance by other Federal grant agencies. See 67 FR 41455  (June 18, 2002). The proposed guidance is based upon and incorporates  the legal analysis and compliance standards of the model June 18, 2002,  DOJ LEP Guidance for Recipients.     It has been determined that the guidance does not constitute a  regulation subject to the rulemaking requirements of the Administrative  Procedure Act, 5 U.S.C. 553. It has also been determined that this  guidance is not subject to the requirements of Executive Order 12866.     The text of the complete proposed guidance document appears below.     Nancy E. Weiss, General Counsel, Institute of Museum and Library  Services.  I. Introduction      Most individuals living in the United States read, write, speak and  understand English. There are many individuals, however, for whom  English is not their primary language. For instance, based on the 2000  census, over 26 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.''     Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq.  and its implementing regulations provide that no person shall be  subjected to discrimination on the basis of race, color, or national  origin under any program or activity that receives federal financial  assistance. Language for LEP individuals 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.     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 clarify the  responsibilities of recipients of federal financial assistance from the  Institute of Museum and Library Services (IMLS), and assist them in  fulfilling their responsibilities to limited English proficient (LEP)  persons pursuant to Title VI of the Civil Rights Act of 1964 and the  IMLS implementing regulations. The policy guidance reiterates IMLS's  longstanding position that, in order to avoid discrimination against  LEP persons on the grounds of national origin, recipients must take  reasonable steps to ensure that such persons have meaningful access to  the programs, services, and information those recipients provide.     This policy guidance is modeled on and incorporates the legal  analysis and compliance standards and framework set out in Section I  through Section VIII of Department of Justice (DOJ) Policy Guidance  titled ``Guidance to Federal Financial Assistance Recipients Regarding  Title VI Prohibition Against National Origin Discrimination Affecting  Limited English Proficient Persons,'' published at 67 FR 41455, 41457- 41465 (June 18, 2002) (DOJ Recipient LEP Guidance). To the extent  additional clarification is desired on the obligation under Title VI to  ensure meaningful access by LEP persons and how recipients can satisfy  that obligation, a recipient should consult the more detailed  discussion of the applicable compliance standards and relevant factors  set out in DOJ Recipient LEP Guidance. The DOJ Guidance may be viewed  and downloaded at http://www.usdoj.gov/crt/cor/lep/DOJFinLEPFRJun182002.htm  or at http://www.lep.gov In addition, IMLS recipients also receiving federal financial assistance from other  federal agencies, such as the National Endowment for the Humanities,  should review those agencies' guidance documents at http://www.lep.gov  for a    more focused explanation of how they can comply with their Title VI and  regulatory obligations in the context of similar federally assisted  programs or activities.     Many commentators have noted that 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. The IMLS and the Department of Justice 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.  II. Purpose and Application      This policy guidance provides a legal framework to assist  recipients in developing appropriate and reasonable language assistance  measures designed to address the needs of LEP individuals. The IMLS  Title VI implementing regulations prohibit both intentional  discrimination and policies and practices that appear neutral but have  a discriminatory effect. Thus, a recipient entity's policies or  practices regarding the provision of benefits and services to LEP  persons need not be intentional to be discriminatory, but may  constitute a violation of Title VI if they have an adverse effect on  the ability of national origin minorities to meaningfully access  programs and services.     Recipient entities have considerable flexibility in determining how  to comply with their legal obligation in the LEP setting and are not  required to use the suggested methods and options that follow. However,  recipient entities must establish and implement policies and procedures  for providing language assistance sufficient to fulfill their Title VI  responsibilities and provide LEP persons with meaningful access to  services.  III. Policy Guidance  1. Who Is Covered      All entities that receive Federal financial assistance from IMLS,  either directly or indirectly, through a grant, cooperative agreement,  contract or subcontract, are covered by this policy guidance. Title VI  applies to all Federal financial assistance, which includes but is not  limited to awards and loans of Federal funds, awards or donations of  Federal property, details of Federal personnel, or any agreement,  arrangement or other contract that has as one of its purposes the  provision of assistance.     Title VI prohibits discrimination in any program or activity that  receives Federal financial assistance. 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 that uses the Federal assistance. Thus,  all parts of the recipient's operations would be covered by Title VI,  even if the Federal assistance were used only by one part.     Finally, some recipients operate in jurisdictions 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  services to persons with limited English proficiency.  2. Basic Requirement: All Recipients Must Take Reasonable Steps To  Provide Meaningful Access to LEP Persons      Title VI and the IMLS implementing regulations require that  recipients take reasonable steps to ensure meaningful access to the  information, programs, and services they provide. Recipients of federal  assistance have considerable flexibility in determining precisely how  to fulfill this obligation.     It is also important to emphasize that museums and libraries are in  the business of maintaining, sharing, and dissemination vast amounts of  information and items, most of which are created or generated by third  parties. In large measure, the common service provided by these  recipients is access to information, whether maintained on-site or  elsewhere, not the generation of the sources information itself. This  distinction is critical in properly applying Title VI to museums,  libraries, and similar programs. For example, in the context of library  services, recipients initially should focus on their procedures or  services that directly impact access in three areas. First,  applications for library or membership cards, instructions on card  usage, and dissemination of information on where and how source  material is maintained and indexed, should be available in appropriate  languages other than English. Second, recipients should, consistent  with the four factor analysis, determine what reasonable steps could be  taken to enhance the value of their collections or services to LEP  persons, including, for example, accessing language-appropriate books  through inter-library loans, direct acquisitions, and/or on-line  materials. Third, to the extent a recipient provides services beyond  access to books, art, or cultural collections to include the generation  of information about those collections, research aids, or community  educational outreach such as reading or discovery programs, these  additional or enhanced services should be separately evaluated under  the four-factor analysis. A similar distinction can be employed with  respect to a museum's exhibits versus a museum's procedures for  meaningful access to those exhibits.     What constitute reasonable steps to ensure meaningful access in the  context of federally-assisted programs and activities in the area of  museums and library services will be contingent upon a balancing of  four factors: (1) The number and proportion of eligible LEP  constituents; (2) the frequency of LEP individuals' contact with the  program; (3) the nature and importance of the program; and (4) the  resources available, including costs. Each of these factors is  summarized below. In addition, recipients should consult Section V of  the June 18, 2002 DOJ LEP Guidance for Recipients, 67 FR 41459-41460 or  http://www.lep.gov, for additional detail on the nature, scope, and  application of these factors. (1) Number or Proportion of LEP Individuals     The appropriateness of any action will depend on the size and  proportion of the LEP population that the recipient serves and the  prevalence of particular languages. Programs that serve a few or even  one LEP person are still subject to the Title VI obligation to take  reasonable steps to provide meaningful opportunities for access. The  first factor in determining the reasonableness of a recipient's efforts  in the number or proportion of people who will be effectively excluded  form meaningful access to the benefits or services if efforts are not  made to remove language barriers. The steps that are reasonable for a  recipient who serves one LEP person a year may be different than those  expected from a recipient that serves several LEP persons each day. (2) Frequency of Contact With the Program     Frequency of contact between the program or activity and LEP  individuals is another factor to be weighed. If LEP individuals must  access the recipient's program or activity on a daily basis, a  recipient has greater duties than if such contact is unpredictable and  infrequent. Recipients should take into account local or regional  conditions when determining frequency of contact with the program, and  should have the    flexibility to tailor their services to those needs. (3) Nature and Importance of the Program     The importance of the recipient's program to beneficiaries will  affect the determination of what reasonable steps are required. More  affirmative steps must be taken in programs where the denial or delay  of access may have serious, or even life or death implications than in  programs that are not crucial to one's day-to-day existence, economic  livelihood, safety, or education. For example, the obligations, of a  federally assisted school or hospital differ from those of a federally  assisted museum or library. This factor implies that the obligation to  provide translation services will be highest in programs providing  education, job training, medical/health services, social welfare  services, and similar services. As a general matter, it is less likely  that museums and libraries receiving assistance from the IMLS will  provide services having a similar immediate and direct impact on a  person's life or livelihood. Thus, in large measure, it is the first  factor (number or proportion of LEP individuals) that will have the  greatest impact in determining the initial need for language assistance  services.     In assessing the effect on individuals of failure to provide  language services, recipients must consider the importance of the  benefit to individuals both immediately and in the long-term. Another  aspect of this factor is the nature of the program itself. Some museum  content may be extremely accessible regardless of language. In these  instances, little translation might be required. (4) Resources Available     IMLS is aware that its recipients may experience difficulties with  resource allocation. Many of the organizations' overall budgets, and  awards involved are quite small. The resources available to a recipient  of federal assistance may have an impact on the nature of the steps  that recipient must take to ensure meaningful access. For example, a  small recipient with limited resources may not have to take the same  steps as a larger recipient to provide LEP assistance in programs that  have a limited number of eligible LEP individuals, where contact is  infrequent, where the total cost of providing language services is  relatively high, and/or where the program is not providing an important  service or benefit from, for instance, a health, education, economic,  or safety perspective. Translation and interpretation costs are  appropriately included in award budget requests.     This four-factor analysis necessarily implicates the ``mix''of LEP  services required. The correct mix should be based on what is both  necessary and reasonable in light of the four-factor analysis. Even  those award recipients who serve very few LEP persons on an infrequent  basis should use a balancing analysis to determine whether the  importance of the services(s) provided and minimal costs make language  assistance measures reasonable even in the case of limited and  infrequent interactions with LEP persons. Recipients have substantial  flexibility in determining the appropriate mix.  IV. Strategies for Ensuring Meaningful Access      Museums and libraries have a long history of interacting with  people with varying language backgrounds and capabilities within the  communities where they are located. The agency's goal is to continue to  encourage these efforts and share practices so that other museums and  libraries can benefit from other institutions' experiences.     The following are examples of language assistance strategies that  are potentially useful for all recipients. These strategies incorporate  a variety of options and methods for providing meaningful access to LEP  beneficiaries and provide examples of how recipients should take each  of the four factors discussed above into account when developing an LEP  strategy. Not every option is necessary or appropriate for every  recipient with respect to all of its programs and activities. Indeed, a  language assistance plan need not be intricate; it may be as simple as  being prepared to use a commercially available ``language line'' to  obtain immediate interpreting services and/or having bilingual staff  members available who are fluent in the most common non-English  languages spoken in the area. Recipients should exercise the  flexibility afforded under this Guidance to select those language  assistance measures which have the greatest potential to address, at  appropriate levels and in reasonable manners, the specific language  needs of the LEP populations they serve.     Finally, the examples below are not intended to suggest that if  services to LEP populations aren't legally required under Title VI and  Title VI regulations, they should not be undertaken. Part of the way in  which libraries and museums build communities is by cutting across  barriers like language. A small investment in outreach to a  linguistically diverse community may well result in a rich cultural  exchange that benefits not only the LEP population, but also the  library or museum and the community as a whole.  Examples      [sbull] Identification of the languages that are likely to be  encountered in, and the number of LEP persons that are likely to be  affected by, the program. This information may be gathered through  review of census and constituent data as well as data from school  systems and community agencies and organizations;     [sbull] Posting signs in public areas in several language,  informing the public of its right to free interpreter services and  inviting members of the public to identify themselves as persons  needing language assistance;     [sbull] Use of ``I speak'' cards for public-contact personnel so  that the public can easily identify staff language abilities;     [sbull] Employment of staff, bilingual in appropriate languages, in  public contact positions;     [sbull] Contracts with interpreting services that can provide  competent interpreters in a wide variety of languages in a timely  manner;     [sbull] Formal arrangements with community groups for competent and  timely interpreter services by community volunteers;     [sbull] An arrangement with a telephone language interpreter line  for on-demand service;     [sbull] Translations of application forms, instructional,  informational and other key documents into appropriate non-English  languages and provide oral interpreter assistance with documents for  those persons whose language does not exist in written form;     [sbull] Procedures for effective telephone communication between  staff and LEP persons, including instructions for English-speaking  employees to obtain assistance from bilingual staff or interpreters  when initiating or receiving calls to or from LEP persons;     [sbull] Notice to and training of all staff, particularly public  contact staff, with respect to the recipient's Title VI obligation to  provide language assistance to LEP persons, and on the language  assistance policies and the procedures to be followed in securing such  assistance in a timely manner;     [sbull] Insertion of notices, in appropriate languages, about  access to free interpreters and other language assistance, in  brochures, pamphlets, manuals, and other materials disseminated to the  public and to staff; and     [sbull] Notice to and consultation with community organizations  that represent LEP language groups, regarding    problems and solutions, including standards and procedures for using  their members as interpreters.     In identifying language assistance measures, recipients should  avoid relying on an LEP person's family members, friends, or other  informal interpreters to provide meaningful access to important  programs and activities. However, 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,  or friend) in place of or as a supplement to the free language services  expressly offered by the recipient. But where a balancing of the four  factors indicate that recipient-provided language assistance is  warranted, 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 a competent interpreter could be  provided by the recipient at no cost.     The use of family and friends as interpreters may be an appropriate  option where proper application of the four factors would lead to a  conclusion that recipient-provided language assistance is not  necessary. An example of this might be a bookstore or cafeteria  associated with a library or archive. 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 technical  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 other informal ad hoc interpreters may be  appropriate.     As noted throughout this guidance. IMLS award recipients have a  great deal of flexibility in addressing the needs of their constituents  with limited English skills. That flexibility does not diminish, and  should not be used to minimize, the obligation that those needs be  addressed. IMLS recipients should apply the four factors outlined above  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. By balancing the number or  proportion of people with limited English skills served, the frequency  of their contact with the program, the importance and nature of the  program, and the resources available, IMLS awardees' Title VI  obligations in many cases will be satisfied by making available oral  language assistance or commissioning translations on an as-requested  and as-needed basis. There are many circumstances where, after an  application and balancing of the four factors noted above, Title VI  would not require translation. For example, Title VI does not require a  library to translate its collections, but it does require the  implementation of appropriate language assistance measures to permit an  otherwise eligible LEP person to apply for a library card and  potentially to access appropriate-language materials through inter- library loans or other reasonable methods. The IMLS views this policy  guidance as providing sufficient flexibility to allow the IMLS to  continue to fund language-dependent programs in both English and other  languages without requiring translation that would be inconsistent with  the nature of the program. Recipients should consult Section VI of the  June 18, 2002 DOJ LEP Guidance for Recipients, 67 FR at 41461-41464 or  http://www.lep.gov, for additional clarification on the standards  applicable to assessing interpreter and translator competence, and for  determining when translations of documents vital to accessing program  benefits should be undertaken.     The key to ensuring meaningful access for people with limited  English skills is effective communication. A library or museum can  ensure effective communication by developing and implementing a  comprehensive language assistance program that includes policies and  procedures for identifying and assessing the language needs of its LEP  constituents. Such a program should also provide for a range of oral  language assistance options, notice to LEP persons of the right to  language assistance, periodic training of staff, monitoring of the  program and, in certain circumstances, the translation of written  materials.     Each recipient should, based on its own volume and frequency of  contact with LEP clients and its own available resources, adopt a  procedure for the resolution of complaints regarding the provision of  language assistance and for notifying the public of their right to and  how to file a complaint under Title VI. State recipients, who will  frequently serve large numbers of LEP individuals, may consider  appointing a senior level employee to coordinate the language  assistance program and to ensure that there is regular monitoring of  the program.  V. Compliance and Enforcement      Executive order 13166 requires that each federal department or  agency extending federal financial assistance subject to Title VI issue  separate guidance implementing uniform Title VI compliance standards  with respect to LEP persons. Where recipients of federal financial  assistance from IMLS also receive assistance from one or more other  federal departments or agencies, there is no obligation to conduct and  document separate but identical analyses and language assistance plans  for IMLS. IMLS, in discharging its compliance and enforcement  obligations under Title VI, looks to analyses performed and plans  developed in response to similar detailed LEP guidance issued by other  federal agencies. Recipients may rely upon guidance issued by those  agencies.     IMLS's regulations implementing Title VI contain compliance and  enforcement provisions to ensure that a recipient's policies and  practices overcome barriers resulting from language differences that  would deny LEP persons an equal opportunity to participate in and  access to programs, services and benefits offered by IMLS. See 45 CFR  part 1110. The agency will ensure that its recipient entities fulfill  their responsibilities to LEP persons through the procedures provided  for the Title VI regulations.     The Title VI regulations provide that IMLS will investigate (or  contact its State recipient of funds to investigate, if appropriate)  whenever it receives a complaint, report or other information that  alleges or indicates possible noncompliance with Title VI. If the  investigation results in a finding of compliance, IMLS will inform the  recipient in writing of this determination, including the basis for the  determination. If the investigation results in a finding of  noncompliance, IMLS 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, and must  attempt to secure voluntary compliance through informal means. If the  matter cannot bed resolved informally, the IMLS will secure compliance  through (a) the suspension of termination of Federal assistance after  the recipient has been given an opportunity for an administrative  hearing, (b) referral to the Department of Justice for injunctive  relief or other enforcement proceedings, or (c) any other means  authorized by federal, state, or local law.     Under the Title VI regulations, the IMLS has a legal obligation to  seek voluntary compliance in resolving cases and cannot seek the  termination of funds until it has engaged in voluntary compliance  efforts and has determined    that compliance cannot be secured voluntarily. IMLS will engage in  voluntary compliance efforts and will provide technical assistance to  recipients at all stages of its investigation. During these efforts to  secure voluntary compliance, IMLS will propose reasonable timetables  for achieving compliance and will consult with and assist recipients in  exploring cost effective ways of coming into compliance.     In determining a recipient's compliance with Title VI, the IMLS's  primary concern is to ensure that the recipient's policies and  procedures overcome barriers resulting from language differences that  would deny LEP persons a meaningful opportunity to participate in and  access programs, services, and benefits. A recipient's appropriate use  of the methods and options discussed in this policy guidance will be  reviewed by the IMLS as evidence of a recipient's willingness to comply  voluntarily with its Title VI obligations. If implementation of one or  more of these options would be so financially burdensome as to defeat  the legitimate objectives of a recipient/covered entity's program, or  if there are equally effective alternatives for ensuring that LEP  persons have meaningful access to programs and services (such as timely  effective oral interpretation of vital documents), IMLS will not find  the recipient/covered entity in noncompliance.     If you have any questions related to this policy, please contact  the IMLS Office of the General Counsel.  Nancy E. Weiss, General Counsel. [FR Doc. 03-8803 Filed 4-9-03; 8:45 am] BILLING CODE 7036-01-M  
Updated August 6, 2015