Federal Coordination And Compliance Section

[Federal Register: April 18, 2002 (Volume 67, Number 75)] [Notices]                [Page 19237-19252] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr18ap02-112]                           -----------------------------------------------------------------------  DEPARTMENT OF JUSTICE    Guidance to Federal Financial Assistance Recipients Regarding  Title VI Prohibition Against National Origin Discrimination Affecting  Limited English Proficient Persons  AGENCY: Department of Justice.  ACTION: Policy guidance document.  -----------------------------------------------------------------------  SUMMARY: The United States Department of Justice (DOJ) is publishing  for public comment policy guidance on Title VI's prohibition against  national origin discrimination as it affects limited English proficient  persons. This policy guidance is intended to supplant the policy  guidance published January 19, 2001.  DATES: Comments must be submitted on or before May 20, 2002. DOJ 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 Ms.  Merrily Friedlander, Chief, Federal Coordination and Compliance Section, Civil  Rights Division, Department of Justice, 950 Pennsylvania Avenue, NW- NYA, Washington, DC 20530; Comments may also be submitted by facsimile  at 202-307-0595.  FOR FURTHER INFORMATION CONTACT: Christine Stoneman or Sebastian Aloot  at the Civil Rights Division, 950 Pennsylvania Avenue, NW-NYA,  Washington, DC 20530. Telephone 202-307-2222; TDD: 202-307-2678.  Arrangements to receive the policy in an alternative format may be made  by contacting the named individuals.  SUPPLEMENTARY INFORMATION: The purpose of this policy guidance is to  further clarify the responsibilities of recipients of federal financial  assistance from the U.S. Department of Justice (DOJ) (``recipients''),  and assist them in fulfilling their responsibilities to limited English  proficient (LEP) persons, pursuant to DOJ regulations implementing  Title VI of the Civil Rights Act of 1964. The policy guidance explains  that to avoid discrimination against LEP persons on the ground of  national origin, recipients must take reasonable steps to ensure that  LEP persons have meaningful access to the programs, services, and  information those recipients provide, free of charge.     Guidance on recipients' obligations to take reasonable steps to  ensure access to programs and activities by persons with limited  English proficiency was originally published on January 16, 2001 and  became effective immediately. See 66 FR 3834. That document, like the  following guidance, was based on policy guidance issued by the  Department of Justice entitled ``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).     On January 18, 2002, the January 16, 2001 guidance document was  republished for additional public comment. See 67 FR 2671. Over 75  comments were received, and the following guidance was developed after  review and consideration of those comments. Prior comments on the  original guidance need not be re-submitted.     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.'' The Report  made several recommendations designed to minimize confusion and ensure  that funds dedicated to LEP services best advance meaningful access for  LEP individuals.  [[Page 19238]]  One significant recommendation was the adoption of uniform guidance  across all federal agencies, with flexibility to permit tailoring to  each agency's specific recipients. The first eight sections of this  guidance discuss the legal, policy, and general compliance standards  followed by a more detailed discussion and examples of how the needs of  persons with limited English proficiency should be addressed by  recipients of DOJ federal financial assistance. As organized, the  guidance is consistent with the OMB recommendation regarding federal- wide uniformity and will function as a model for similar guidance to be  issued soon by other agencies.     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.     The text of the complete guidance document appears below.      Dated: April 12, 2002. Alex Acosta, Principal Deputy Assistant Attorney General, Civil Rights Division.  I. Introduction      Most individuals living in the United States read, 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, speak, or understand  English, they are limited English proficient, or ``LEP.'' While  detailed data from the 2000 census has not yet been released, 26% of  all Spanish-speakers, 29.9% of all Chinese-speakers, and 28.2% of all  Vietnamese-speakers reported that they spoke English ``not well'' or  ``not at all'' in response to the 1990 census.     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.  The Federal Government funds an array of services that can be made  accessible to otherwise eligible LEP persons. Recipients of federal  financial assistance have an obligation to reduce language barriers  that can preclude meaningful access by LEP persons to important  government services.     This policy guidance clarifies responsibilities, under existing  law, of recipients of federal financial assistance from the Department  of Justice (``DOJ'') to provide meaningful access to LEP persons. The  purpose is to assist recipients in fulfilling their responsibilities to  provide meaningful access to LEP persons under existing law. In certain  circumstances, failure to ensure that LEP persons can effectively  participate in or benefit from federally assisted programs and  activities may violate prohibitions against national origin  discrimination. This policy guidance attempts to clarify legal  requirements for LEP persons by providing a description of the factors  recipients should consider in fulfilling their responsibilities to LEP  persons. These are the same criteria DOJ will use in evaluating whether  recipients are in compliance.     The Department of Justice's role under Executive Order 13166 is  unique. The Order charges DOJ with responsibility for providing LEP  Guidance to other Federal agencies and for ensuring consistency among  each agency-specific guidance. Consistency among Departments 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 mandate 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. This is of particular importance  because, in many cases, LEP individuals form a substantial portion of  those encountered in federally-assisted programs. Second, we must  achieve this goal while finding constructive methods to reduce the  costs of LEP requirements on small businesses, small local governments,  or small non-profits that receive federal financial assistance.     There are many productive steps that the federal government, either  collectively or as individual grant agencies, can take to help  recipients reduce the costs of language services without sacrificing  meaningful access for LEP persons. Without these steps, certain smaller  grantees may well choose not to participate in federally assisted  programs, threatening the critical functions that the programs strive  to provide. To that end, the Department plans to continue to provide  assistance and guidance in this important area. In addition, DOJ plans  to work with representatives of law enforcement, corrections, courts,  and LEP persons to identify and share model plans, examples of best  practices, and cost-saving approaches. Moreover, DOJ 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, small local  governments, and small non-profits.     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. 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.  II. Legal Authority      Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.  2000d, provides that no person shall ``on the ground of race, color, or  national origin, be excluded from participation in, be denied the  benefits of, or be subjected to discrimination under any program or  activity receiving Federal financial assistance.'' Section 602  authorizes and directs federal agencies that are empowered to extend  federal financial assistance to any program or activity ``to effectuate  the provisions of [section 601] * * * by issuing rules, regulations, or  orders of general applicability.'' 42 U.S.C. 2000d-1.     Department of Justice regulations promulgated pursuant to section  602 forbid recipients 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.'' 28 CFR 42.104(b)(2).     The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974),  interpreted regulations promulgated by the Department of Health,  Education, and Welfare, including a regulation similar to that of DOJ,  45 CFR 80.3(b)(2), to hold  [[Page 19239]]  that Title VI prohibits conduct that has a disproportionate effect on  LEP persons because such conduct constitutes national-origin  discrimination. In Lau, a San Francisco school district that had a  significant number of non-English speaking students of Chinese origin  was required to take reasonable steps to provide them with a meaningful  opportunity to participate in federally funded educational programs.     On August 11, 2000, Executive Order 13166 was issued. ``Improving  Access to Services for Persons with Limited English Proficiency,'' 65  FR 50121 (August 16, 2000). Under that order, every federal agency that  provides financial assistance to non-federal entities must publish  guidance on how their recipients can provide meaningful access to LEP  persons and thus comply with Title VI regulations forbidding funding  recipients from ``restrict[ing] an individual in any way in the  enjoyment of any advantage or privilege enjoyed by others receiving any  service, financial aid, or other benefit under the program'' or from  ``utiliz[ing] criteria or methods of administration which have the  effect of subjecting individuals to discrimination because of their  race, color, or national origin, or have the effect of defeating or  substantially impairing accomplishment of the objectives of the program  as respects individuals of a particular race, color, or national  origin.''     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  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.\1\ 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. ---------------------------------------------------------------------------      \1\ The memorandum noted that some have interpreted Sandoval as  impliedly striking down the disparate-impact regulations promulgated  under Title VI that form the basis for the part of Executive Order  13166 that applies to federally assisted programs and activities.  See, e.g., Sandoval, 532 U.S. at 286, 286 n.6 (``[W]e assume for  purposes of this decision that 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 this 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 limited the authority and responsibility of federal grant  agencies to enforce their own implementing regulations. ---------------------------------------------------------------------------      Pursuant to Executive Order 13166, DOJ developed its own guidance  document for recipients and initially issued it on January 16, 2001.  ``Guidance to Federal Financial Assistance Recipients Regarding Title  VI Prohibition Against National Origin Discrimination Affecting Limited  English Proficient Persons,'' 66 FR 3834 (January 16, 2001) (``LEP  Guidance for DOJ Recipients''). Because DOJ did not receive significant  public comment on its January 16, 2001 publication, the Department  republished on January 18, 2002 its existing guidance document for  additional public comment. ``Guidance to Federal Financial Assistance  Recipients Regarding Title VI Prohibition Against National Origin  Discrimination Affecting Limited English Proficient Persons,'' 67 FR  2671 (January 18, 2002). The Department has since received substantial  public comment.     This guidance document is thus published pursuant to Executive  Order 13166 and revises the January 16, 2001 publication in light of  the public comment received and Assistant Attorney General Boyd's  October 26, 2001 clarifying memorandum.  III. Who Is Covered?      Department of Justice regulations, 28 CFR 42.104(b)(2), require all  recipients of federal financial assistance from DOJ to provide  meaningful access to LEP persons.\2\ Federal financial assistance  includes grants, training, use of equipment, donations of surplus  property, and other assistance. Recipients of DOJ assistance include,  for example: ---------------------------------------------------------------------------      \2\ Pursuant to Executive Order 13166, the meaningful access  requirement of the Title VI regulations and the four-factor analysis  set forth in the DOJ LEP Guidance are to additionally apply to the  programs and activities of federal agencies, including the  Department of Justice. ---------------------------------------------------------------------------       Police and sheriffs' departments      Departments of corrections, jails, and detention  facilities      Courts      Certain nonprofit agencies with law enforcement, public  safety, and victim assistance missions.     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.\3\      \3\ 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. ---------------------------------------------------------------------------      Example: DOJ provides assistance to a state department of  corrections to improve a particular prison facility. All of the  operations of the entire state department of corrections--not just  the particular prison--are covered.      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.  IV. Who Is a Limited English Proficient Individual?      Individuals who do not speak English as their primary language and  who have a limited ability to read, speak, or understand English can be  limited English proficient, or ``LEP,'' 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 DOJ recipients and should be considered  when planning language services include, but are not limited to:      Persons who are in the custody of the recipient, including  juveniles, detainees, wards, and inmates.      Persons subject to or serviced by law enforcement  activities, including, for example, suspects, violators, witnesses,  victims, those subject to immigration-related investigations by  recipient law enforcement agencies, and community members seeking to  [[Page 19240]]  participate in crime prevention or awareness activities.      Persons who encounter the court system.      Parents and family members of the above.  V. How Does a Recipient Determine the Extent of Its Obligation To  Provide LEP Services?      Recipients are required to take reasonable steps to ensure  meaningful access to their programs and activities by LEP persons.  While designed to be a flexible and fact-dependent standard, the  starting point is an individualized assessment that balances the  following four factors: (1) The number or proportion of LEP persons  eligible to be served or likely to be encountered by the program or  grantee; (2) the frequency with which LEP individuals come in contact  with the program; (3) the nature and importance of the program,  activity, or service provided by the program to people's lives; and (4)  the resources available to the grantee/recipient and costs. As  indicated above, the intent of this guidance is to find a balance that  ensures meaningful access by LEP persons to critical services while not  imposing undue burdens on small business, or small nonprofits.     After applying the above four-factor analysis, a recipient may  conclude that different language assistance measures are sufficient for  different types of programs or activities. 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. DOJ recipients should apply the following 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, 28 CFR 42.405(d)(1), are those who are  served or encountered in the eligible service population. This  population will be program-specific, and includes persons who are in  the geographic area that has been approved by a federal grant agency as  the recipient's service area. However, where, for instance, a precinct  serves a large LEP population, the appropriate service area is most  likely the precinct, and not the entire population served by the  department. 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. Appendix A provides examples to assist in determining the  relevant service area. 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 the legal system.     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.\4\ 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. ---------------------------------------------------------------------------      \4\ The focus of the analysis is on lack of English proficiency,  not the ability to speak more than one language. Note that census  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 census data, it is important to  focus in on the languages spoken by those who are 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 one-time  basis will be very different than those expected from a recipient that  serves LEP persons daily. It is also advisable to consider the  frequency of different types of language contacts. For example,  frequent contacts with Spanish-speaking people who are LEP may require  certain assistance in Spanish. Less frequent contact with different  language groups may suggest a different and less intensified solution.  If an LEP individual accesses a program or service on a daily basis, a  recipient has greater duties than if the same individual's program or  activity contact is unpredictable or infrequent. But even recipients  that serve LEP persons on an unpredictable or infrequent basis should  use this balancing analysis to determine what to do if an LEP  individual seeks services under the program in question. This plan need  not be intricate. It may be as simple as being prepared to use one of  the commercially-available telephonic interpretation services to obtain  immediate interpreter services. In applying this standard, recipients  should take care to consider whether appropriate outreach to LEP  persons could increase the frequency of contact with LEP language  groups. (3) The Nature and Importance of the Program, 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 rights to a person who is arrested or to  provide medical services to an ill or injured inmate differ, for  example, from those to provide bicycle safety courses or recreational  programming. 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  particular educational programs in a correctional  [[Page 19241]]  facility or the communication of Miranda rights, 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  videoconferencing 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, for example, may help reduce costs.\5\ Recipients  should carefully explore the most cost-effective means of delivering  competent and accurate language services before limiting services due  to resource concerns. Large entities and those entities serving a  significant number or proportion of LEP persons should ensure that  their resource limitations are well-substantiated before using this  factor as a reason to limit language assistance. Such recipients may  find it useful to be able to articulate, through documentation or in  some other reasonable manner, their process for determining that  language services would be limited based on resources or costs. ---------------------------------------------------------------------------      \5\ Small recipients with limited resources may find that  entering into a bulk telephonic interpretation service contract will  prove cost effective. ---------------------------------------------------------------------------      This four-factor analysis necessarily implicates the ``mix'' of LEP  services required. Recipients have two main ways to provide language  services: Oral interpretation either in person or via telephone  translation service (hereinafter ``interpretation'') and written  translation (hereinafter ``translation''). Oral interpretation can  range from on-site interpreters for critical services provided to a  high volume of LEP persons to access through commercially-available  telephonic interpretation services. Written translation, likewise, can  range from translation of an entire document to translation of a short  description of the document. In some cases, language services should be  made available on an expedited basis while in others the LEP individual  may be referred to another office of the recipient for language  assistance.     The correct mix should be based on what is both necessary and  reasonable in light of the four-factor analysis. A police department in  a largely Hispanic neighborhood may need immediate oral interpreters  available and should give serious consideration to hiring some  bilingual staff. (Of course, many police departments have already made  such arrangements.) 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: oral  and written language services. Quality and accuracy of the language  service is critical in order to avoid serious consequences to the LEP  person and to the recipient.  A. Oral Language Services (Interpretation)      Interpretation is the act of listening to something in one language  (source language) and orally translating it into another language  (target language). Where interpretation is needed and is reasonable,  recipients should consider some or all of the following options for  providing competent interpreters in a timely manner:     Competence of Interpreters. When providing oral assistance,  recipients should ensure competency of the language service provider,  no matter which of the strategies outlined below are used. Competency  requires more than self-identification as bilingual. Some bilingual  staff and community volunteers, for instance, may be able to  communicate effectively in a different language when communicating  information directly in that language, but not be competent to  interpret in and out of English. Likewise, they may not be able to do  written translations.     Competency to interpret, however, does not necessarily mean formal  certification as an interpreter, although certification is helpful.  When using interpreters, recipients should ensure that they:      Demonstrate proficiency in and ability to communicate  information accurately in both English and in the other language and  identify and employ the appropriate mode of interpreting (e.g.,  consecutive, simultaneous, summarization, or sight translation);      Have knowledge in both languages of any specialized terms  or concepts peculiar to the entity's program or activity and of any  particularized vocabulary and phraseology used in the LEP person's  country of origin; \6\ and ---------------------------------------------------------------------------      \6\ There may be languages which do not have an appropriate  direct interpretation of some courtroom or legal terms and the  interpreter should be aware of this and be able to provide the most  appropriate interpretation. The interpreter should likely make the  recipient aware of the issue and the interpreter(s) 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. ---------------------------------------------------------------------------       Understand and follow confidentiality and impartiality  rules to the same extent the recipient employee for whom they are  interpreting and/or to the extent their position requires.      Understand and adhere to their role as interpreters  without deviating into a role as counselor, legal advisor, or other  roles (particularly in court or law enforcement contexts).     Some recipients, such as courts, may have additional self-imposed  requirements for interpreters. Where individual rights depend on  precise, complete, and accurate interpretation or translations,  particularly in the contexts of courtrooms and custodial or other  police interrogations, the use of certified interpreters is strongly  encouraged.\7\ Where such proceedings are lengthy, the interpreter will  likely need breaks and team interpreting may be appropriate to ensure  accuracy and to prevent errors caused by mental fatigue of  interpreters. ---------------------------------------------------------------------------      \7\ For those language in which no formal accreditation or  certification currently exists, courts and law enforcement agencies  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 LEP services required. The quality and accuracy of  language services in a prison hospital emergency room, for example,  must be extraordinarily high, while the quality and accuracy of  language services in a bicycle safety  [[Page 19242]]  class 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 must 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  must 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 DOJ recipients providing  law enforcement, health, and safety 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 service. Such conduct would likely result in delays  for LEP persons that would be significantly greater than those for  English proficient persons. Conversely, where access to or exercise of  a service, benefit, or right is not effectively precluded by a  reasonable delay, language assistance can likely be delayed for a  reasonable period.     Hiring Bilingual Staff. When particular languages are encountered  often, hiring bilingual staff offers one of the best, and often most  economical, options. Recipients can, for example, fill public contact  positions, such as 911 operators, police officers, guards, or program  directors, with staff who are bilingual and competent to communicate  directly with LEP persons in their language. If bilingual staff are  also used to interpret between English speakers and LEP persons, or to  orally interpret written documents from English into another language,  they should be competent in the skill of interpreting. Being bilingual  does not necessarily mean that a person has the ability to interpret.  In addition, there may be times when the role of the bilingual employee  may conflict with the role of an interpreter (for instance, a bilingual  law clerk would probably not be able to perform effectively the role of  a courtroom interpreter and law clerk at the same time, even if the law  clerk were a qualified interpreter). Effective management strategies,  including any appropriate adjustments in assignments and protocols for  using bilingual staff, can ensure that bilingual staff are fully and  appropriately utilized. When bilingual staff cannot meet all of the  language service obligations of the recipient, the recipient should  turn to other options.     Hiring Staff Interpreters. Hiring interpreters may be most helpful  where there is a frequent need for interpreting services in one or more  languages.     Contracting for Interpreters. Contract interpreters may be a cost- effective option when there is no regular need for a particular  language skill.     Using Telephone Interpreter Lines. Telephone interpreter service  lines often offer speedy interpreting assistance in many different  languages. They may be particularly appropriate where the mode of  communicating with an English proficient person would also be over the  phone. Although telephonic interpretation services are useful in many  situations, it is important to ensure that, when using such services,  the interpreters used are competent to interpret any technical or legal  terms specific to a particular program that may be important parts of  the conversation. Nuances in language and non-verbal communication can  often assist an interpreter and cannot be recognized over the phone.  Video teleconferencing may sometimes help to resolve this issue where  necessary. In addition, where documents are being discussed, it is  important to give telephonic interpreters adequate opportunity to  review the document prior to the discussion and any logistical problems  should be addressed. 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.     Using Community Volunteers. In addition to consideration of  bilingual staff, staff interpreters, contract interpreters (either in- person or by telephone) as options to ensure meaningful access by LEP  persons, use of recipient-coordinated community volunteers may provide  a cost-effective supplemental language assistance strategy under  appropriate circumstances. They may be particularly useful in providing  language access for a recipients' 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  or services of the program and can communicate directly with LEP  persons in their language. Community volunteers used to interpret  between English speakers and LEP persons, or to orally translate  documents, should be competent in the skill of interpreting. Formal  arrangements with volunteers typically help ensure that service is  available more regularly, that the volunteers are competent to perform  the assigned duties, and that volunteers understand applicable  confidentiality and impartiality rules.     Use of Family Members, Friends, Other Inmates, or Other Detainees  as Interpreters. Where LEP persons so desire, they should be permitted  to use an interpreter of their own choosing (whether a professional  interpreter, family member, friend, other inmate, other detainee) 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 inmate 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, must be very careful to ensure that family  interpreters are appropriate in light of the circumstances and subject  matter of the program, service or activity. In many circumstances,  family members (especially children), friends, other inmates or other  detainees are not competent to provide quality and accurate  interpretations. Issues of confidentiality, privacy, or conflict of  interests may also arise. LEP individuals may feel uncomfortable  revealing or describing sensitive, confidential, or potentially  embarrassing medical, law enforcement (e.g., sexual or violent  assaults), family, 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, such as the desire to protect  themselves or another perpetrator in a domestic violence or other  criminal matter. For these reasons, when oral language services are  necessary, recipients should generally offer competent interpreter  services free of cost to the LEP person. For DOJ recipient programs and  activities, this is particularly true in a courtroom, pre- and post- trial proceedings, 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.     An example of such a case is when police officers respond to a  domestic violence call. In such a case, use of family members or  neighbors to interpret for the alleged victim, perpetrator, or  witnesses may raise  [[Page 19243]]  serious issues of competency, confidentiality, and conflicts of  interest and is thus inappropriate. While issues of competency,  confidentiality, and conflicts of interest in the use of family members  (especially children), friends, other inmates or other detainees 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 recipient-provided  services are not necessary. An example of this is a voluntary  educational tour of a courthouse 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 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 extra care to ensure that the LEP person's choice  is voluntary and was made with the knowledge that a competent  interpreter could be provided by the recipient at no cost to the LEP  person.  B. Written Language Services (Translation)      Translation is the replacement of a written text from one language  (source language) into an equivalent written text in another language  (target language).     What Documents Should be Translated? After applying the four-factor  analysis, recipients may determine that an effective LEP policy ensures  that certain vital written materials are translated into the language  of each regularly 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:     Consent and complaint forms     Intake forms with the potential for important consequences     Written notices of rights, denial, loss, or decreases in benefits  or services, parole, and other hearings     Notices of disciplinary action     Notices advising LEP persons of free language assistance     Prison rule books     Written tests that do not assess English language competency, but  test competency for a particular license, job, or skill for which  knowing English is not required     Applications to participate in a recipient's program or activity or  to receive recipient benefits or services.     Whether or not a document is ``vital'' may depend upon the  importance of the program, information, encounter, or service involved.  For instance, applications for bicycle safety courses should not  generally be considered vital, whereas applications for drug and  alcohol counseling in prison could be considered vital. Where  appropriate, recipients are encouraged to create a policy for  determining, consistently, 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. To have meaningful access  to a right or service, LEP persons may need to be aware of those rights  and services. Thus, vital information may include, for instance,  documents indicating how to obtain oral assistance in understanding  other information not contained in the translated documents. Lack of  awareness that a particular program, right, or service exists may  effectively deny LEP individuals meaningful access. Thus, where a  recipient is engaged in community outreach activities in furtherance of  its activities, it should regularly assess the needs of the populations  frequently encountered or affected by the program or activity to  determine whether certain critical outreach materials should be  translated. Community organizations may be helpful in determining what  outreach materials may be most helpful to translate. In addition, the  recipient should consider whether translations of outreach material may  be made more effective when done in tandem with other outreach methods,  including utilizing the ethnic media, schools, religious, and community  organizations to spread a message.     Sometimes a document includes both vital and non-vital information.  This may be the case when the document is very large. It may also be  the case when the title and a phone number for obtaining more  information on the contents of the document in the most 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.     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 the most  frequent languages spoken by LEP persons encountered by a recipient and  the less common 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 most frequently encountered  languages and to set benchmarks for continued translations over time.  As a result, the extent of the recipient's obligation to provide  written translations of documents should be determined by the recipient  on a case-by-case basis, looking at the totality of the circumstances  in light of the four-factor analysis. Because translation is a one-time  expense, consideration should be given to whether the upfront cost of  translating a document (as opposed to oral interpretation) should be  amortized over the likely lifespan of the document when applying this  four-factor analysis.     Safe Harbor. Many recipients would like to ensure with greater  certainty that they comply with their obligations to provide written  translations in languages other than English. Paragraphs (a) and (b)  outline the circumstances that can provide a ``safe harbor'' for  recipients regarding the requirements for translation of written  materials. A ``safe harbor'' means that if  [[Page 19244]]  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. 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 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.      Safe Harbor. The following actions will be considered strong  evidence of compliance with the recipient's written-translation  obligations:     (a) The DOJ 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 (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 individuals through competent oral  interpreters where oral language services are needed and are  reasonable. For example, correctional facilities should, where  appropriate, ensure that prison rules have been explained to LEP  inmates, at orientation, for instance, prior to taking disciplinary  action against them.     Competence of Translators. As with oral interpreters, translators  of written documents should be competent. 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.\8\ 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. This is called ``back  translation.'' ---------------------------------------------------------------------------      \8\ For those languages in which no formal accreditation  currently exists, a particular level of membership in a professional  translation association can provide some indicator of  professionalism. ---------------------------------------------------------------------------      Translators should understand the expected reading level of the  audience and, where appropriate, have fundamental knowledge about the  target language group's vocabulary and phraseology. Sometimes direct  translation of 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.\9\ Community organizations may be able to  help consider whether a document is written at a good level for the  audience. Likewise, consistency in the words and phrases used to  translate terms of art, legal, or other technical concepts helps avoid  confusion by LEP individuals and may reduce costs. Creating or using  already-created glossaries of commonly-used terms may be useful for LEP  persons and translators and cost effective for the recipient. Providing  translators with examples of previous translations of similar material  by the recipient, other recipients, or federal agencies may be helpful. ---------------------------------------------------------------------------      \9\ For instance, there may be languages which do not have an  appropriate direct translation of some courtroom or legal 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 personals  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  DOJ 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 Effective Policy 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. Recipients have considerable  flexibility in developing this plan. For most recipients, a written  policy on language assistance for LEP persons (``LEP policy'') may be  the most appropriate and cost effective means of implementation.  Certain DOJ recipients, such as recipients serving very few LEP persons  and recipients with very limited resources, may not need to develop an  LEP policy, but such recipients may find it useful to be able to  articulate in some other reasonable manner their plan for providing  meaningful access to certain law enforcement, health, and safety  services and certain legal rights. 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 policy  and are typically part of effective implementation plans. The failure  to include all five elements in an implementation plan, however, does  not necessarily mean there is non-compliance.  (1) Identifying LEP Individuals Who Need Language Assistance      The first two factors in the four-factor analysis require an  assessment of the number or proportion of LEP individuals eligible to  be served or encountered and the frequency of encounters. This requires  recipients to identify LEP persons with whom it has contact.     One way to determine the language of communication is to use  language identification cards (or ``I speak cards''), which invite LEP  persons to identify their language needs to staff. Such cards, for  instance, might say ``I speak Spanish'' in both Spanish and English,  ``I speak Vietnamese'' in both English and Vietnamese, etc. To reduce  costs of compliance, the federal government has  [[Page 19245]]  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 policy would likely include information about the  ways in which language assistance will be provided. For instance,  recipients may want to include information on at least the following:     Types of language services available.     How staff can obtain those services.     How to respond to LEP callers.     How to respond to written communications from LEP persons.     How to respond to LEP individuals who have in-person contact with  recipient staff.     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 policy would  likely include training to ensure that:     Staff know about LEP policies and procedures.     Staff having contact with the public (or those in a recipient's  custody) are 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 (or having contact with those in  a recipient's custody) are properly trained. Recipients have  flexibility in deciding the manner in which the training is provided.  The more frequent the contact with LEP persons, the greater the need  will be for in-depth training. Staff with little or no contact with LEP  persons may only have to be aware of an LEP policy. However, management  staff, even if they do not interact regularly with LEP persons, should  be fully aware of and understand the plan so they can reinforce its  importance and ensure its implementation by staff.  (4) Providing Notice to LEP Persons      Once an agency has decided, based on the four factors, that it will  provide language services, it is important for the recipient to let LEP  persons know that those services are available and that they are free  of charge. Recipients should provide this notice in a language LEP  persons will understand. Examples of notification that recipients  should consider include:     Posting signs in intake areas and other entry points. When language  assistance is needed to ensure meaningful access to information and  services, it is important to provide notice in appropriate languages in  intake areas or initial points of contact so that LEP persons can learn  how to access those language services. This is particularly true in  areas with high volumes of LEP persons seeking access to certain  health, safety, or law enforcement services or activities run by DOJ  recipients. For instance, signs in intake offices could state that free  language assistance is available. The signs should be translated into  the most common languages encountered. They should explain how to get  the language help.\10\ ---------------------------------------------------------------------------      \10\ The Social Security Administration has made such signs  available on their website. These signs could, for example, be  modified for recipient use. ---------------------------------------------------------------------------      Stating in outreach documents that language services are available  from the agency. Announcements could be in, for instance, brochures,  booklets, and in outreach and recruitment information. These statements  should be translated into the most common languages and could be  ``tagged'' onto the front of common documents.     Working with community-based organizations and other stakeholders  to inform LEP individuals of the recipients' services, including the  availability of language assistance services.     Using a telephone voice mail menu. The menu could be in the most  common languages encountered. It should provide information about  available language assistance services and how to get them.     Including notices in local newspapers in languages other than  English.     Providing notices on non-English-language radio and television  stations about the available language assistance services and how to  get them.     Presentations and/or notices at schools and religious  organizations.  (5) Monitoring and Updating the LEP Policy      Recipients should, where appropriate, have a process for  determining, on an ongoing basis, whether new documents, programs,  services, and activities need to be made accessible for LEP  individuals, and they may want to provide notice of any changes in  services to the LEP public and to employees. In addition, recipients  should consider whether changes in demographics, types of services, or  other needs require annual reevaluation of their LEP policy. Less  frequent reevaluation may be more appropriate where demographics,  services, and needs are more static. One good way to evaluate the LEP  policy is to seek feedback from the community.     In their reviews, recipients may want to consider assessing changes  in:     Current LEP populations in service area or population affected or  encountered.     Frequency of encounters with LEP language groups.     Nature and importance of activities to LEP persons.     Availability of resources, including technological advances and  sources of additional resources, and the costs imposed.     Whether existing assistance is meeting the needs of LEP persons.     Whether staff knows and understands the LEP policy and how to  implement it.     Whether identified sources for assistance are still available and  viable.     In addition to these five elements, effective plans set clear  goals, management accountability, and opportunities for community input  and planning throughout the process.  VIII. Voluntary Compliance Effort      The goal for Title VI and Title VI regulatory enforcement is to  achieve voluntary compliance. The requirement to provide meaningful  access to LEP persons is enforced and implemented by DOJ through the  procedures identified in the Title VI regulations. These procedures  include complaint investigations, compliance reviews, efforts to secure  voluntary compliance, and technical assistance.     The Title VI regulations provide that DOJ 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, DOJ will inform  the recipient in writing of this determination, including the basis for  the determination. DOJ uses voluntary mediation to resolve most  complaints. However, if a case is fully investigated and results in a  finding of noncompliance, DOJ must inform the recipient of the  noncompliance through a Letter of Findings that sets out the  [[Page 19246]]  areas of noncompliance and the steps that must be taken to correct the  noncompliance. It must attempt to secure voluntary compliance through  informal means. If the matter cannot be resolved informally, DOJ must  secure compliance through the termination of federal assistance after  the DOJ recipient has been given an opportunity for an administrative  hearing and/or by referring the matter to a DOJ litigation section to  seek injunctive relief or pursue other enforcement proceedings. DOJ  engages in voluntary compliance efforts and provides technical  assistance to recipients at all stages of an investigation. During  these efforts, DOJ 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, DOJ's primary concern is to  ensure that the recipient's policies and procedures provide meaningful  access for LEP persons to the recipient's programs and activities.     While all recipients must work toward building systems that will  ensure access for LEP individuals, DOJ acknowledges that the  implementation of a comprehensive system to serve LEP individuals is a  process and that a system will evolve over time as it is implemented  and periodically reevaluated. As recipients take reasonable steps to  provide meaningful access to federally assisted programs and activities  for LEP persons, DOJ will look favorably on intermediate steps  recipients take that are consistent with this Guidance, and that, as  part of a broader implementation plan or schedule, move their service  delivery system toward providing full access to LEP persons. This does  not excuse noncompliance but instead recognizes that full compliance in  all areas of a recipient's activities and for all potential language  minority groups may reasonable require a series of implementing actions  over a period of time. However, in developing any phased implementation  schedule, DOJ recipients should ensure that the provision of  appropriate assistance for significant LEP populations or with respect  to activities having a significant impact on the health, safety, legal  rights, or livelihood of beneficiaries is addressed first. Recipients  are encouraged to document their efforts to provide LEP persons with  meaningful access to federally assisted programs and activities.  IX. Application to Specific Types of Recipients      Appendix A of this Guidance provides examples of how the meaningful  access requirement of the Title VI regulations applies to law  enforcement, corrections, courts, and other recipients of DOJ  assistance.  A. State and Local Law Enforcement      Appendix A further explains how law enforcement recipients can  apply the four factors to a range of encounters with the public. The  responsibility for providing language services differs with different  types of encounters.     Appendix A helps recipients identify the population they should  consider when considering the types of services to provide. It then  provides guidance and examples of applying the four factors. For  instance, it gives examples on how to apply this guidance to:  Receiving and responding to requests for help Enforcement stops short of arrest and field investigations Custodial interrogations Intake/detention Community outreach  B. Departments of Corrections      Appendix A also helps departments of corrections understand how to  apply the four factors. For instance, it gives examples of LEP access  in:  Intake Disciplinary action Health and safety Participation in classes or other programs affecting length of sentence English as a Second Language (ESL) Classes Community corrections programs  C. Other Types of Recipients      Appendix A also applies the four factors and gives examples for  other types of recipients. Those include, for example:  Courts Juvenile Justice Programs Domestic Violence Prevention/Treatment Programs  Appendix A--Application of LEP Guidance for DOJ Recipients to Specific  Types of Recipients      While a wide range of entities receive federal financial  assistance through DOJ, most of DOJ's assistance goes to law  enforcement agencies, including state and local police and sheriffs'  departments, and to state departments of corrections. Sections A and  B below provide examples of how these two major types of DOJ  recipients might apply the four-factor analysis. Section C provides  examples for other types of recipients. The examples in this  Appendix are not meant to be exhaustive and may not apply in many  situations.     The requirements of the Title VI regulations, as clarified by  this Guidance, supplement, but do not supplant, constitutional and  other statutory or regulatory provisions that may require LEP  services. Thus, a proper application of the four-factor analysis and  compliance with the Title VI regulations does not replace  constitutional or other statutory protections mandating warnings and  notices in languages other than English in the criminal justice  context. Rather, this Guidance clarifies the Title VI regulatory  obligation to address, in appropriate circumstances and in a  reasonable manner, the language assistance needs of LEP individuals  beyond those required by the Constitution or statutes and  regulations other than the Title VI regulations.  A. State and Local Law Enforcement      For the vast majority of the public, exposure to law enforcement  begins and ends with interactions with law enforcement personnel  discharging their duties while on patrol, responding to a request  for services, talking to witnesses, or conducting community outreach  activities. For a much smaller number, that exposure includes a  visit to a station house. And for an important but even smaller  number, that visit to the station house results in entry into the  criminal justice, judicial, or juvenile justice systems.     The common thread running through these and other interactions  between the public and law enforcement is the exchange of  information. Where police and sheriffs' departments receive federal  financial assistance, these departments have an obligation to  provide LEP services to LEP individuals to ensure that they have  meaningful access to the system, including, for example,  understanding rights and accessing police assistance. Language  barriers can, for instance, prevent victims from effectively  reporting crimes to the police and hinder police investigations of  reported crimes. For example, failure to communicate effectively  with a victim of domestic violence can result in reliance on the  batterer or a minor child and failure to identify and protect  against harm.     Many police and sheriffs' departments already provide language  services in a wide variety of circumstances to obtain information  effectively, to build trust and relationships with the community,  and to contribute to the safety of law enforcement personnel. For  example, many police departments already have available printed  Miranda rights in languages other than English as well as  interpreters available to inform LEP persons of their rights and to  interpret police interviews.\1\ In areas where significant LEP  populations reside, law enforcement officials already may have forms  and notices in languages other than English  [[Page 19247]]  or they may employ bilingual law enforcement officers, intake  personnel, counselors, and support staff. These experiences can form  a strong basis for applying the four-factor analysis and complying  with the Title VI regulations. ---------------------------------------------------------------------------      \1\ The Department's Federal Bureau of Investigation makes  written versions of those rights available in several different  languages. Of course, where literacy is of concern, these are most  useful in assisting an interpreter in using consistent terms when  providing Miranda warnings orally. ---------------------------------------------------------------------------  1. General Principles      The touchstone of the four-factor analysis is reasonableness  based upon the specific purposes, needs, and capabilities of the law  enforcement service under review and an appreciation of the nature  and particularized needs of the LEP population served. Accordingly,  the analysis cannot provide a single uniform answer on how service  to LEP persons must be provided in all programs or activities in all  situations or whether such service need be provided at all.  Knowledge of local conditions and community needs becomes critical  in determining the type and level of language services needed.     Before giving specific examples, several general points should  assist law enforcement in correctly applying the analysis to the  wide range of services employed in their particular jurisdictions.  a. Permanent Versus Seasonal Populations      In many communities, resident populations change over time or  season. For example, in some resort communities, populations swell  during peak vacation periods, many times exceeding the number of  permanent residents of the jurisdiction. In other communities,  primarily agricultural areas, transient populations of agricultural  workers will require increased law enforcement services during the  relevant harvest season. This dynamic demographic ebb and flow can  also dramatically change the size and nature of the LEP community  likely to come into contact with law enforcement personnel. Thus,  law enforcement officials may not want to limit their analysis to  numbers and percentages of permanent residents. In assessing factor  one--the number or proportion of LEP individuals--police departments  should consider any significant but temporary changes in a  jurisdiction's demographics.     Example:  A rural jurisdiction has a permanent population of  30,000, 7% of which is Hispanic. Based on census data and on  information from the contiguous school district, of that number,  only 15% are estimated to be LEP individuals. Thus, the total  estimated permanent LEP population is 315 or approximately 1% of the  total permanent population. Under the four-factor analysis, a  sheriffs' department could reasonably conclude that the small number  of LEP persons makes the affirmative translation of documents and/or  employment of bilingual staff unnecessary. However, during the  spring and summer planting and harvest seasons, the local population  swells to 40,000 due to the influx of seasonal agricultural workers.  Of this transitional number, about 75% are Hispanic and about 50% of  that number are LEP individuals. This information comes from the  schools and a local migrant worker community group. Thus, during the  harvest season, the jurisdiction's LEP population increases to over  10% of all residents. In this case, the department may want to  consider whether it is required to translate vital written documents  into Spanish. In addition, the predictability of contact during  those seasons makes it important for the jurisdiction to review its  interpretation services to ensure meaningful access for LEP  individuals.  b. Target Audiences      For most law enforcement services, the target audience is  defined in geographic rather than programmatic terms. However, some  services may be targeted to reach a particular audience (e.g.,  elementary school children, elderly, residents of high crime areas,  minority communities, small business owners/operators). Also, within  the larger geographic area covered by a police department, certain  precincts or portions of precincts may have concentrations of LEP  persons. In these cases, even if the overall number or proportion of  LEP individuals in the district is low, the frequency of contact may  be foreseeably higher for certain areas or programs. Thus, the  second factor--frequency of contact--should be considered in light  of the specific program or the geographic area being served.     Example: A police department that receives funds from the DOJ  Office of Justice Programs initiates a program to increase awareness  and understanding of police services among elementary school age  children in high crime areas of the jurisdiction. This program  involves ``Officer in the Classroom'' presentations at elementary  schools located in areas of high poverty. The population of the  jurisdiction is estimated to include only 3% LEP individuals.  However, the LEP population at the target schools is 35%, the vast  majority of whom are Vietnamese speakers. In applying the four- factor analysis, the higher LEP language group populations of the  target schools and the frequency of contact within the program with  LEP students in those schools, not the LEP population generally,  should be used in determining the nature of the LEP needs of that  particular program. Further, because the Vietnamese LEP population  is concentrated in one or two main areas of town, the police  department should expect the frequency of contact with Vietnamese  LEP individuals, in general, to be quite high in those areas, and it  should apply the four-factor analysis accordingly with respect to  other services provided by the police department.  c. Importance of Service/Information      Given the critical role law enforcement plays in maintaining  quality of life and property, traditional law enforcement and  protective services rank high on the critical/non-critical  continuum. However, this does not mean that information about, or  provided by, each of the myriad services and activities performed by  law enforcement officials must be equally available in languages  other than English. While clearly important to the ultimate success  of law enforcement, certain community outreach activities do not  have the same direct impact on the provision of core law enforcement  services as the activities of 911 lines or law enforcement  officials' ability to respond to requests for assistance while on  patrol, to communicate basic information to suspects, etc.  Nevertheless, with the rising importance of community partnerships  and community-based programming as a law enforcement technique, the  need for language services with respect to these programs should be  considered in applying the four-factor analysis.  d. Interpreters      Just as with other recipients, law enforcement recipients have a  variety of options for providing language services. Under certain  circumstances, when interpreters are required and recipients should  provide competent interpreter services free of cost to the LEP  person, LEP persons should be advised that they may choose either to  secure the assistance of an interpreter of their own choosing, at  their own expense, or a competent interpreter provided by the  recipient.     If the LEP person decides to provide his or her own interpreter,  the provision of this choice to the LEP person and the LEP person's  election should be documented in any written record generated with  respect to the LEP person. While an LEP person may sometimes look to  bilingual family members or friends or other persons with whom they  are comfortable for language assistance, there are many situations  where an LEP person might want to rely upon recipient-supplied  interpretative services. For example, such individuals may not be  available when and where they are needed, or may not have the  ability to interpret program-specific technical information.  Alternatively, an individual may feel uncomfortable revealing or  describing sensitive, confidential, or potentially embarrassing  medical, law enforcement (e.g., sexual or violent assaults), family,  or financial information to a family member, friend, or member of  the local community. Similarly, there may be situations where a  recipient's own interests justify the provision of an interpreter  regardless of whether the LEP individual also provides his or her  own interpreter. For example, where precise, complete and accurate  translations of information and/or testimony are critical for law  enforcement, adjudicatory or legal reasons, a recipient might decide  to provide its own, independent interpreter, even if an LEP person  wants to use their own interpreter as well.     In emergency situations that are not reasonably foreseeable, the  recipient may have to temporarily rely on non-recipient-provided  language services. Reliance on children is especially discouraged  unless there is an extreme emergency and no preferable interpreters  are available.     While all language services need to be competent, the greater  the potential consequences, the greater the need to monitor  interpretation services for quality. For instance, it is important  that interpreters in custodial interrogations be highly competent to  translate legal and other law enforcement concepts, as well as be  extremely accurate in their interpretation. It may be sufficient,  however, for a desk clerk who is bilingual but not skilled at  interpreting to help an LEP person figure out to whom he or she  needs to talk about setting up a neighborhood watch.  [[Page 19248]]  2. Applying the Four-Factor Analysis Along the Law Enforcement  Continuum      While all police activities are important, the four-factor  analysis requires some prioritizing so that language services are  targeted where most needed because of the nature and importance of  the particular law enforcement activity involved. In addition,  because of the ``reasonableness'' standard, and frequency of contact  and resources/costs factors, the obligation to provide language  services increases where the importance of the activity is greater.     Under this framework, then, critical areas for language  assistance could include 911 calls, custodial interrogation, and  health and safety issues for persons within the control of the  police. These activities should be considered the most important  under the four-factor analysis. Systems for receiving and  investigating complaints from the public are important. Often very  important are routine patrol activities, receiving non-emergency  information regarding potential crimes, and ticketing. Community  outreach activities are hard to categorize, but generally they do  not rise to the same level of importance as the other activities  listed. However, with the importance of community partnerships and  community-based programming as a law enforcement technique, the need  for language services with respect to these programs should be  considered in applying the four-factor analysis. Police departments  have a great deal of flexibility in determining how to best address  their outreach to LEP populations.  a. Receiving and Responding to Requests for Assistance      LEP persons must have meaningful access to police services when  they are victims of or witnesses to alleged criminal activity.  Effective reporting systems transform victims, witnesses, or  bystanders into assistants in law enforcement and investigation  processes. Given the critical role the public plays in reporting  crimes or directing limited law enforcement resources to time- sensitive emergency or public safety situations, efforts to address  the language assistance needs of LEP individuals could have a  significant impact on improving responsiveness, effectiveness, and  safety.     Emergency service lines for the public, or 911 lines, operated  by agencies that receive federal financial assistance must be  accessible to persons who are LEP. This will mean different things  to different jurisdictions. For instance, in large cities with  significant LEP communities, the 911 line may have operators who are  bilingual and capable of accurately interpreting in high stress  situations. Smaller cities or areas with small LEP populations  should still have to have a plan for serving callers who are LEP,  but the LEP policy and implementation may involve a telephonic  interpretation service that is fast enough and reliable enough to  attend to the emergency situation, or include some other  accommodation short of hiring bilingual operators.     Example: A large city provides bilingual operators for the most  frequently encountered languages, and uses a commercial telephone  interpretation service when it receives calls from LEP persons who  speak other languages. Ten percent of the city's population is LEP,  and sixty percent of the LEP population speaks Spanish. In addition  to 911 service, the city has a 311 line for non-emergency police  services. The 311 Center has Spanish speaking operators available,  and uses a language bank, staffed by the city's bilingual city  employees who are competent translators, for other non-English- speaking callers. The city also has a campaign to educate non- English speakers when to use 311 instead of 911. These actions  constitute strong evidence of compliance.  b. Enforcement Stops Short of Arrest and Field Investigations      Field enforcement includes, for example, traffic stops,  pedestrian stops, serving warrants and restraining orders, Terry  stops, activities in aid of other jurisdictions or federal agencies  (e.g., fugitive arrests or INS detentions), and crowd/traffic  control. Because of the diffuse nature of these activities, the  reasonableness standard allows for great flexibility in providing  meaningful access. Nevertheless, the ability of law enforcement  agencies to discharge fully and effectively their enforcement and  crime interdiction mission requires the ability to communicate  instructions, commands, and notices. For example, a routine traffic  stop can become a difficult situation if an officer is unable to  communicate effectively the reason for the stop, the need for  identification or other information, and the meaning of any written  citation. Requests for consent to search are meaningless if the  request is not understood. Similarly, crowd control commands will be  wholly ineffective where significant numbers of people in a crowd  cannot understand the meaning of law enforcement commands.     Given the wide range of possible situations in which law  enforcement in the field can take place, it is impossible to equip  every officer with the tools necessary to respond to every possible  LEP scenario. Rather, in applying the four factors to field  enforcement, the goal should be to implement measures addressing the  language needs of significant LEP populations in the most likely,  common, and important situations, as consistent with the recipients'  resources and costs.     Example: A police department serves a jurisdiction with a  significant number of LEP individuals residing in one or more  precincts, and it is routinely asked to provide crowd control  services at community events or demonstrations in those precincts.  If it is otherwise consistent with the requirements of the four- factor analysis, the police department should assess how it will  discharge its crowd control duties in a language-appropriate manner.  Among the possible approaches are plans to assign bilingual  officers, basic language training of all officers in common law  enforcement commands, the use of devices that provide audio commands  in the predictable languages, or the distribution of translated  written materials for use by officers.     Field investigations include neighborhood canvassing, witness  identification and interviewing, investigative or Terry stops, and  similar activities designed to solicit and obtain information from  the community or particular persons. Encounters with LEP individuals  will often be less predictable in field investigations. However, the  jurisdiction should still assess the potential for contact with LEP  individuals in the course of field investigations and investigative  stops, identify the LEP language group(s) most likely to be  encountered, and provide, if it is consistent with the four-factor  analysis, its officers with sufficient interpretation and/or  translation resources to ensure that lack of English proficiency  does not impede otherwise proper investigations or unduly burden LEP  individuals.     Example: A police department in a moderately large city includes  a precinct that serves an area which includes significant LEP  populations whose native languages are Spanish, Korean, and Tagalog.  Law enforcement officials could reasonably consider the adoption of  a policy assigning bilingual investigative officers to the precinct  and/or creating a resource list of department employees competent to  interpret and ready to assist officers by phone or radio. This could  be combined with developing language-appropriate written materials,  such as consents to searches or statements of rights, for use by its  officers where LEP individuals are literate in their languages. In  certain circumstances, it may also be helpful to have telephonic  interpretation service access where other options are not successful  and safety and availability of phone access permit.     Example: A police department receives federal financial  assistance and serves a predominantly Hispanic neighborhood. It  routinely sends officers on domestic violence calls. The police  department is in a state in which English has been declared the  official language. The police therefore determine that they cannot  provide language services to LEP persons. Thus, when the victim of  domestic violence speaks only Spanish and the perpetrator speaks  English, the officers have no way to speak with the victim so they  only get the perpetrator's side of the story. The failure to  communicate effectively with the victim results in further abuse and  failure to charge the batterer. The police department should be  aware that despite the state's official English law, the Title VI  regulations apply to it. Thus, the police department should provide  meaningful access for LEP persons.  c. Custodial Interrogations      Custodial interrogations of unrepresented LEP individuals  trigger constitutional rights that this Guidance is not designed to  address. Given the importance of being able to communicate  effectively under such circumstances, law enforcement recipients  should ensure competent and free language services for LEP  individuals in such situations. Law enforcement agencies are  strongly encouraged to create a written policy on language  assistance for LEP persons in this area. In addition, in formulating  a policy for effectively communicating with LEP individuals,  agencies should strongly consider whether qualified independent  interpreters would be more appropriate  [[Page 19249]]  during custodial interrogations than law enforcement personnel  themselves.\2\ ---------------------------------------------------------------------------      \2\ Some state laws prohibit police officers from serving as  interpreters during custodial interrogation of suspects. ---------------------------------------------------------------------------      Example: A large city police department institutes an LEP plan  that requires arresting officers to procure a qualified interpreter  for any custodial interrogation, notification of rights, or taking  of a statement, and any communication by an LEP individual in  response to a law enforcement officer. When considering whether an  interpreter is qualified, the LEP policy discourages use of police  officers as interpreters in interrogations except under  circumstances in which the LEP individual is informed of the  officer's dual role and the reliability of the interpretation is  verified, such as, for example, where the officer has been trained  and tested in interpreting and tape recordings are made of the  entire interview. In determining whether an interpreter is  qualified, the jurisdiction uses the analysis noted above. These  actions would constitute strong evidence of compliance.  d. Intake/Detention      State or local law enforcement agencies that arrest LEP persons  should consider the inherent communication impediments to gathering  information from the LEP arrestee through an intake or booking  process. Aside from the basic information, such as the LEP  arrestee's name and address, law enforcement agencies should  evaluate their ability to communicate with the LEP arrestee about  his or her medical condition. Because medical screening questions  are commonly used to elicit information on the arrestee's medical  needs, suicidal inclinations, presence of contagious diseases,  potential illness, resulting symptoms upon withdrawal from certain  medications, or the need to segregate the arrestee from other  prisoners, it is important for law enforcement agencies to consider  how to communicate effectively with an LEP arrestee at this stage.  In jurisdictions with few bilingual officers or in situations where  the LEP person speaks a language not encountered very frequently,  telephonic interpretation services may provide the most cost  effective and efficient method of communication.  e. Community Outreach      Community outreach activities increasingly are recognized as  important to the ultimate success of more traditional duties. Thus,  an application of the four-factor analysis to community outreach  activities can play an important role in ensuring that the purpose  of these activities (to improve police/community relations and  advance law enforcement objectives) is not thwarted due to the  failure to address the language needs of LEP persons.     Example: A police department initiates a program of domestic  counseling in an effort to reduce the number or intensity of  domestic violence interactions. A review of domestic violence  records in the city reveals that 25% of all domestic violence  responses are to minority areas and 30% of those responses involve  interactions with one or more LEP persons, most of whom speak the  same language. After completing the four-factor analysis, the  department should take reasonable steps to make the counseling  accessible to LEP individuals. For instance, the department could  seek bilingual counselors (for whom they provided training in  translation) for some of the counseling positions. In addition, the  department could have an agreement with a local university in which  bilingual social work majors who are competent in interpreting, as  well as language majors who are trained by the department in basic  domestic violence sensitivity and counseling, are used as  interpreters when the in-house bilingual staff cannot cover the  need. Interpreters under such circumstances should sign a  confidentiality agreement with the department. These actions  constitute strong evidence of compliance.     Example: A large city has initiated an outreach program designed  to address a problem of robberies of Vietnamese homes by Vietnamese  gangs. One strategy is to work with community groups and banks and  others to help allay traditional fears in the community of putting  money and other valuables in banks. Because a large portion of the  target audience is Vietnamese speaking and LEP, the department  contracts with a bilingual community liaison competent in the skill  of translating to help with outreach activities. This action  constitutes strong evidence of compliance.  B. Departments of Corrections/Jails/Detention Centers      Departments of corrections that receive federal financial  assistance from DOJ must provide LEP prisoners \3\ with meaningful  access to benefits and services within the program. In order to do  so, corrections departments, like other recipients, must apply the  four-factor analysis. ---------------------------------------------------------------------------      \3\ In this Guidance, the terms ``prisoners'' or ``inmates''  include all of those individuals, including Immigration and  Naturalization Service (INS) detainees and juveniles, who are held  in a facility operated by a recipient. Certain statutory,  regulatory, or constitutional mandates/rights may apply only to  juveniles, such as educational rights, including those for students  with disabilities or limited English proficiency. Because a decision  by a recipient or a federal, state, or local entity to make an  activity compulsory serves as strong evidence of the program's  importance, the obligation to provide language services may differ  depending upon whether the LEP person is a juvenile or an adult  inmate. ---------------------------------------------------------------------------  1. General Principles      Departments of corrections also have a wide variety of options  in providing translation services appropriate to the particular  situation. Bilingual staff competent in interpreting, in person or  by phone, pose one option. Additionally, particular prisons may have  agreements with local colleges and universities, interpreter  services, and/or community organizations to provide paid or  volunteer competent translators under agreements of confidentiality  and impartiality. Telephonic interpretation services may offer a  prudent oral interpreting option for prisons with very few and/or  infrequent prisoners in a particular language group. Reliance on  fellow prisoners is generally not appropriate. Reliance on fellow  prisoners should only be an option in unforeseeable emergency  circumstances; when the LEP inmate signs a waiver that is in his/her  language and in a form designed for him/her to understand; or where  the topic of communication is not sensitive, confidential,  important, or technical in nature and the prisoner is competent in  the skill of interpreting.     In addition, a department of corrections that receives federal  financial assistance would be ultimately responsible for ensuring  that LEP inmates have meaningful access within a prison run by a  private or other entity with which the department has entered into a  contract. The department may provide the staff and materials  necessary to provide required language services, or it may choose to  require the entity with which it contracted to provide the services  itself.  2. Applying the Four Factors Along the Corrections Continuum      As with law enforcement activities, critical and predictable  contact with LEP individuals poses the greatest obligation for  language services. Corrections facilities have somewhat greater  abilities to assess the language needs of those they encounter,  although inmate populations may change rapidly in some areas.  Contact affecting health and safety, length of stay, and discipline  likely present the most critical situations under the four-factor  analysis.  a. Assessment      Each department of corrections that receives federal financial  assistance should assess the number of LEP prisoners who are in the  system, in which prisons they are located, and the languages he or  she speaks. Each prisoner's LEP status, and the language he or she  speaks, should be placed in his or her file. Although this Guidance  and Title VI are not meant to address literacy levels, agencies  should be aware of literacy problems so that LEP services are  provided in a way that is meaningful and useful (e.g., translated  written materials are of little use to a nonliterate inmate). After  the initial assessment, new LEP prisoners should be identified at  intake or orientation, and the data should be updated accordingly.  b. Intake/Orientation      Intake/Orientation plays a critical role not merely in the  system's identification of LEP prisoners, but in providing those  prisoners with fundamental information about their obligations to  comply with system regulations, participate in education and  training, receive appropriate medical treatment, and enjoy  recreation. Even if only one prisoner doesn't understand English,  that prisoner should likely be given the opportunity to be informed  of the rules, obligations, and opportunities in a manner designed  effectively to communicate these matters. An appropriate analogy is  the obligation to communicate effectively with deaf prisoners, which  is most frequently accomplished through sign language interpreters  or written materials. Not every prison will use the same method for  providing language assistance. Prisons with large numbers of  Spanish-speaking LEP  [[Page 19250]]  prisoners, for example, may choose to translate written rules,  notices, and other important orientation material into Spanish with  oral instructions, whereas prisons with very few such inmates may  choose to rely upon a telephonic interpretation service or qualified  community volunteers to assist.     Example: The department of corrections in a state with a 5%  Haitian Creole-speaking LEP corrections population and an 8%  Spanish-speaking LEP population receives federal financial  assistance to expand one of its prisons. The department of  corrections has developed an intake video in Haitian Creole and  another in Spanish for all of the prisons within the department to  use when orienting new prisoners who are LEP and speak one of those  languages. In addition, the department provides inmates with an  opportunity to ask questions and discuss intake information through  either bilingual staff who are competent in interpreting and who are  present at the orientation or who are patched in by phone to act as  interpreters. The department also has an agreement whereby some of  its prisons house a small number of INS detainees. For those  detainees or other inmates who are LEP and do not speak Haitian  Creole or Spanish, the department has created a list of sources for  interpretation, including department staff, contract interpreters,  university resources, and a telephonic interpretation service. Each  person receives at least an oral explanation of the rights, rules,  and opportunities. These actions constitute strong evidence of  compliance. Example:     A department of corrections that receives federal financial  assistance determines that, even though the state in which it  resides has a law declaring English the official language, it should  still ensure that LEP prisoners understand the rules, rights, and  opportunities and have meaningful access to important information  and services at the state prisons. Despite the state's official  English law, the Title VI regulations apply to the department of  corrections.  c. Disciplinary Action      When a prisoner who is LEP is the subject of disciplinary  action, the prison, where appropriate, should provide language  assistance. That assistance should ensure that the LEP prisoner had  adequate notice of the rule in question and is meaningfully able to  understand and participate in the process afforded prisoners under  those circumstances. As noted previously, fellow inmates should  generally not serve as interpreters in disciplinary hearings.  d. Health and Safety      Prisons providing health services should refer to Department of  Health and Humans Services' guidance \4\ regarding health care  providers' Title VI and Title VI regulatory obligations, as well as  with this Guidance. ---------------------------------------------------------------------------      \4\ A copy of that guidance can be found on the HHS Web site at  http://www.hhs.gov/ocr/lep/ and at http://www.usdoj.gov/crt/cor. ---------------------------------------------------------------------------      Health care services are obviously extremely important. How  access to those services is provided depends upon the four-factor  analysis. If, for instance, a prison serves a high proportion of LEP  individuals who speak Spanish, then the prison health care provider  should likely have available qualified bilingual medical staff or  interpreters versed in medical terms. If the population of LEP  individuals is low, then the prison may choose instead, for example,  to rely on a local community volunteer program that provides  qualified interpreters through a university. Due to the private  nature of medical situations, only in unpredictable emergency  situations or in non-emergency cases where the inmate has waived  rights to a non-inmate interpreter would the use of other bilingual  inmates be appropriate.  e. Participation Affecting Length of Sentence      If a prisoner's LEP status makes him/her unable to participate  in a particular program, such a failure to participate should not be  used to adversely impact the length of stay or significantly affect  the conditions of imprisonment. Prisons have options in how to apply  this standard. For instance, prisons could: (1) Make the program  accessible to the LEP inmate; or (2) waive the requirement.     Example: State law provides that otherwise eligible prisoners  may receive early release if they take and pass an alcohol  counseling program. Given the importance of early release, LEP  prisoners should, where appropriate, be provided access to this  prerequisite in some fashion. How that access is provided depends on  the three factors other than importance. If, for example, there are  many LEP prisoners speaking a particular language in the prison  system, the class could be provided in that language for those  inmates. If there were far fewer LEP prisoners speaking a particular  language, the prison might still need to ensure access to this  prerequisite because of the importance of early release  opportunities. Options include, for example, use of bilingual  teachers, contract interpreters, or community volunteers to  interpret during the class, reliance on videos or written  explanations in a language the inmate understands, and/or  modification of the requirements of the class to meet the LEP  individual's ability to understand and communicate.  f. ESL Classes      States often mandate English-as-a-Second language (ESL) classes  for LEP inmates. Nothing in this Guidance indicates how recipients  should address such mandates. ESL courses can serve as an important  part of a proper LEP plan in prisons because, as prisoners gain  proficiency in English, fewer language services are needed. However,  the fact that ESL classes are provided does not necessarily obviate  the need to provide meaningful access for prisoners who are not yet  English proficient.  g. Community Corrections      This guidance also applies to community corrections programs  that receive, directly or indirectly, federal financial assistance.  For them, the most frequent contact with LEP individuals will be  with an offender, a victim, or the family members of either, but may  also include witnesses and community members in the area in which a  crime was committed.     As with other recipient activities, community corrections  programs should apply the four factors and determine areas where  language services are most needed and reasonable. Important oral  communications include, for example: interviews; explaining  conditions of probations/release; developing case plans; setting up  referrals for services; regular supervision contacts; outlining  violations of probations/parole and recommendations; and making  adjustments to the case plan. Competent oral language services for  LEP persons are important for each of these types of communication.  Recipients have great flexibility in determining how to provide  those services.     Just as with all language services, it is important that  language services be competent. Some knowledge of the legal system  may be necessary in certain circumstances. For example, special  attention should be given to the technical interpretation skills of  interpreters used when obtaining information from an offender during  pre-sentence and violation of probation/parole investigations or in  other circumstances in which legal terms and the results of  inaccuracies could impose an enormous burden on the LEP person.     In addition, just as with other recipients, corrections programs  should identify vital written materials for probation and parole  that should be translated when a significant number or proportion of  LEP individuals that speak a particular language is encountered.  Vital documents in this context could include, for instance:  probation/parole department descriptions and grievance procedures,  offender rights information, the pre-sentence/release investigation  report, notices of alleged violations, sentencing/release orders,  including conditions of parole, and victim impact statement  questionnaires.  C. Other Types of Recipients      DOJ provides federal financial assistance to many other types of  entities and programs, including, for example, courts, juvenile  justice programs, shelters for victims of domestic violence, and  domestic violence prevention programs. The Title VI regulations and  this Guidance apply to those entities. Examples involving some of  those recipients follow:  1. Courts      Application of the four-factor analysis requires recipient  courts to ensure that LEP parties and witnesses receive competent  language services, consistent with the four-factor analysis. At a  minimum, every effort should be taken to ensure competent  interpretation for LEP individuals during all hearings, trials, and  motions during which the LEP individual must and/or may be present.  When a recipient court appoints an attorney to represent an LEP  defendant, the court should ensure that either the attorney is  proficient in the LEP person's language or that a competent  interpreter is provided during consultations between the attorney  and the LEP person.     Many states have created or adopted certification procedures for  court interpreters. This is one way for recipients to ensure  competency of interpreters. Where certification is available, courts  should  [[Page 19251]]  consider carefully the qualifications of interpreters who are not  certified. Courts will not, however, always be able to find a  certified interpreter, particularly for less frequently encountered  languages.     Example: A state court receiving DOJ federal financial  assistance has frequent contact with LEP individuals as parties and  witnesses, but has experienced a shortage in certified interpreters  in the range of languages encountered. State court officials work  with training and testing consultants to broaden the number of  certified interpreters available in the top several languages spoken  by LEP individuals in the state. Because resources are scarce and  the development of tests expensive, state court officials decide to  partner with other states that have already established agreements  to share proficiency tests and to develop new ones together. The  state court officials also look to other existing state plans for  examples of: codes of professional conduct for interpreters;  mandatory orientation and basic training for interpreters;  interpreter proficiency tests in Spanish and Vietnamese language  interpretation; a written test in English for interpreters in all  languages covering professional responsibility, basic legal term  definitions, court procedures, etc. They are considering working  with other states to expand testing certification programs in coming  years to include several other most frequently encountered  languages. These actions constitute strong evidence of compliance.     Many individuals, while able to communicate in English to some  extent, are still LEP insofar as ability to understand the terms and  precise language of the courtroom. Courts should consider carefully  whether a person will be able to understand and communicate  effectively in the stressful role of a witness or party and in  situations where knowledge of language subtleties and/or technical  terms and concepts are involved or where key determinations are made  based on credibility.     Example: Judges in a county court receiving federal financial  assistance have adopted a voir dire for determining a witness' need  for an interpreter. The voir dire avoids questions that could be  answered with ``yes'' or ``no.'' It includes questions about comfort  level in English, and questions that require active responses, such  as: ``How did you come to court today?'' etc. The judges also ask  the witness more complicated conceptual questions to determine the  extent of the person's proficiency in English. These actions  constitute strong evidence of compliance.     Example: A court encounters a domestic violence victim who is  LEP. Even though the court is located in a state where English has  been declared the official language, it employs a competent  interpreter to ensure meaningful access. Despite the state's  official English law, the Title VI regulations apply to the court.     When courts experience low numbers or proportions of LEP  individuals from a particular language group and infrequent contact  with that language group, creation of a new certification test for  interpreters may be overly burdensome. In such cases, other methods  should be used to determine the competency of interpreters for the  court's purposes.     Example: A witness in a county court in a large city speaks Urdu  and not English. The jurisdiction has no court interpreter  certification testing for Urdu language interpreters because very  few LEP individuals encountered speak Urdu and there is no such test  available through other states or organizations. However, a non- certified interpreter is available and has been given the standard  English-language test on court processes and interpreter ethics. The  judge brings in a second, independent, bilingual Urdu-speaking  person from a local university, and asks the prospective interpreter  to interpret the judge's conversation with the second individual.  The judge then asks the second Urdu speaker a series of questions  designed to determine whether the interpreter accurately interpreted  their conversation. Given the infrequent contact, the low number and  proportion of Urdu LEP individuals in the area, and the high cost of  providing certification tests for Urdu interpreters, this ``second  check'' solution may be one appropriate way of ensuring meaningful  access to the LEP individual.     Example: In order to minimize the necessity of the type of  intense judicial intervention on the issue of quality noted in the  previous example, the court administrators in a jurisdiction,  working closely with interpreter and translator associations, the  bar, judges, and community groups, have developed and disseminated a  stringent set of qualifications for court interpreters. The state  has adopted a certification test in several languages. A  questionnaire and qualifications process helps identify qualified  interpreters even when certified interpreters are not available to  meet a particular language need. Thus, the court administrators  create a pool from which judges and attorneys can choose. A team of  court personnel, judges, interpreters, and others have developed a  recommended interpreter oath and a set of frequently asked questions  and answers regarding court interpreting that have been provided to  judges and clerks. The frequently asked questions include  information regarding the use of team interpreters, breaks, the  types of interpreting (consecutive, simultaneous, summary, and sight  translations) and the professional standards for use of each one,  and suggested questions for determining whether an LEP witness is  effectively able to communicate through the interpreter. Information  sessions on the use of interpreters are provided for judges and  clerks. These actions constitute strong evidence of compliance.     Another key to successful use of interpreters in the courtroom  is to ensure that everyone in the process understands the role of  the interpreter.     Example: Judges in a recipient court administer a standard oath  to each interpreter and make a statement to the jury that the role  of the interpreter is to interpret, verbatim, the questions posed to  the witness and the witness' response. The jury should focus on the  words, not the non-verbals, of the interpreter. The judges also  clarify the role of the interpreter to the witness and the  attorneys. These actions constitute strong evidence of compliance.     Just as corrections recipients must take care to ensure that  eligible LEP individuals have the opportunity to reduce the term of  their sentence to the same extent that non-LEP individuals do,  courts should ensure that LEP persons have access to programs that  would give them the equal opportunity to avoid serving a sentence at  all.     Example: An LEP defendant should be given the same access to  alternatives to sentencing, such as anger management and alcohol  abuse counseling, as is given to non-LEP persons in the same  circumstances.     Courts have significant contact with the public outside of the  courtroom. Providing meaningful access to the legal process for LEP  individuals might require more than just providing interpreters in  the courtroom. Recipient courts should assess the need for language  services all along the process, particularly in areas with high  numbers of unrepresented individuals, such as family, landlord- tenant, traffic, and small claims courts.     Example: Only twenty thousand people live in a rural county. The  county superior court receives DOJ funds but does not have a budget  comparable to that of a more-populous urbanized county in the state.  Over 1000 LEP Hispanic immigrants have settled in the rural county.  The urbanized county also has more than 1000 LEP Hispanic  immigrants. Both counties have ``how to'' materials in English  helping unrepresented individuals negotiate the family court  processes and providing information for victims of domestic  violence. The urban county has taken the lead in developing Spanish- language translations of materials that would explain the process.  The rural county modifies these slightly with the assistance of  family law and domestic violence advocates serving the Hispanic  community, and thereby benefits from the work of the urban county.  Creative solutions, such as sharing resources across jurisdictions  and working with local bar associations and community groups, can  help overcome serious financial concerns in areas with few  resources.     There may be some instances in which the four-factor analysis of  a particular portion of a recipient's program leads to the  conclusion that language services are not currently required. For  instance, the four-factor analysis may not necessarily require that  a purely voluntary tour of a ceremonial courtroom be given in  languages other than English by courtroom personnel, because the  relative importance may not warrant such services given an  application of the other factors. However, a court may decide to  provide such tours in languages other than English given  demographics and court preferences. Because the analysis is fact- dependent, the same conclusion may not be appropriate with respect  to all tours.     Just as with police departments, courts and/or particular  divisions within courts may have more contact with LEP individuals  than an assessment of the general population would indicate.  Recipients should consider  [[Page 19252]]  that higher contact level when determining the number or proportion  of LEP individuals in the contact population and the frequency of  such contact.     Example: A county has very few residents who are LEP. However,  many Vietnamese-speaking LEP motorists go through a major freeway  running through the county, which connects two areas with high  populations of Vietnamese speaking LEP individuals. As a result, the  Traffic Division of the county court processes a large number of LEP  persons, but it has taken no steps to train staff or provide forms  or other language access in that Division because of the small  number of LEP individuals in the county. The Division should assess  the number and proportion of LEP individuals processed by the  Division and the frequency of such contact. With those numbers high,  the Traffic Division may find that it needs to provide key forms or  instructions in Vietnamese. It may also find, from talking with  community groups, that many older Vietnamese LEP individuals do not  read Vietnamese well, and that it should provide oral language  services as well. The court may already have Vietnamese-speaking  staff competent in interpreting in a different section of the court;  it may decide to hire a Vietnamese-speaking employee who is  competent in the skill of interpreting; or it may decide that a  telephonic interpretation service suffices.  2. Juvenile Justice Programs      DOJ provides funds to many juvenile justice programs to which  this Guidance applies. Recipients should consider LEP parents when  minor children encounter the legal system. Absent an emergency,  recipients are strongly discouraged from using children as  interpreters for LEP parents.     Example: A county coordinator for an anti-gang program operated  by a DOJ recipient has noticed that increasing numbers of gangs have  formed comprised primarily of LEP individuals speaking a particular  foreign language. The coordinator may choose to assess the number of  LEP youths at risk of involvement in these gangs, so that she can  determine whether the program should hire a counselor who is  bilingual in the particular language and English, or provide other  types of language services to the LEP youths.     When applying the four factors, recipients encountering  juveniles should take into account that certain programs or  activities may be even more critical and difficult to access for  juveniles than they would be for adults. For instance, although an  adult detainee may need some language services to access family  members, a juvenile being detained on immigration-related charges  who is held by a recipient may need more language services in order  to have access to his or her parents.  3. Domestic Violence Prevention/Treatment Programs      Several domestic violence prevention and treatment programs  receive DOJ financial assistance and thus must apply this Guidance  to their programs and activities. As with all other recipients, the  mix of services needed should be determined after conducting the  four-factor analysis. For instance, a shelter for victims of  domestic violence serving a largely Hispanic area in which many  people are LEP should strongly consider accessing qualified  bilingual counselors, staff, and volunteers, whereas a shelter that  has experienced almost no encounters with LEP persons and serves an  area with very few LEP persons may only reasonably need access to a  telephonic interpretation service. Experience, program  modifications, and demographic changes may require modifications to  the mix over time.     Example: A shelter for victims of domestic violence is operated  by a recipient of DOJ funds and located in an area where 15 percent  of the women in the service area speak Spanish and are LEP. Seven  percent of the women in the service area speak various Chinese  dialects and are LEP. The shelter uses community volunteers to help  translate vital outreach materials into Chinese (which is one  written language despite many dialects) and Spanish. The shelter  hotline has a menu providing key information, such as location, in  English, Spanish, and two of the most common Chinese dialects. Calls  for immediate assistance are handled by the bilingual staff. The  shelter has one counselor and several volunteers fluent in Spanish  and English. Some volunteers are fluent in different Chinese  dialects and in English. The shelter works with community groups to  access interpreters in the several Chinese dialects that they  encounter. Shelter staff train the community volunteers in the  sensitivities of domestic violence intake and counseling. Volunteers  sign confidentiality agreements. The shelter is looking for a grant  to increase its language capabilities despite its tiny budget. These  actions constitute strong evidence of compliance.  [FR Doc. 02-9461 Filed 4-17-02; 8:45 am] BILLING CODE 4410-13-P  
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Updated August 6, 2015

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