Federal Coordination and Compliance Section Publications

 [Federal Register: March 7, 2002 (Volume 67, Number 45)] [Notices]                [Page 10477-10484] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr07mr02-132]                           ======================================================================= -----------------------------------------------------------------------  DEPARTMENT OF THE TREASURY    Guidance to Federal Financial Assistance Recipients on the Title  VI Prohibition Against National Origin Discrimination Affecting Limited  English Proficient Persons  AGENCY: Department of the Treasury.  ACTION: Policy guidance document.  -----------------------------------------------------------------------  SUMMARY: The United States Department of the Treasury is republishing  for additional public comment policy guidance on Title VI's prohibition  against national origin discrimination as it affects limited English  proficient persons.  DATES: This guidance was effective March 7, 2001. Comments must be  submitted on or before April 8, 2002. Treasury will review all comments  and will determine what modifications to the policy guidance, if any,  are necessary.  ADDRESSES: Interested persons should submit written comments to Ms.  Marcia H. Coates, Director, Office of Equal Opportunity Program,  Department of the Treasury, 1500 Pennsylvania Avenue, NW., Room 6071  Metropolitan Square, Washington, DC 20220; Comments may also be  submitted by e-mail to: OEOPWEB@do.treas.gov.  FOR FURTHER INFORMATION CONTACT: John Hanberry at the Office of Equal  Opportunity Program, Department of the Treasury, 1500 Pennsylvania  Avenue, NW., Room 6071 Metropolitan Square, Washington, DC 20220; (202)  622-1170 voice, (202) 622-0367 fax. Arrangements to receive the policy  in an alternative format may be made by contacting Mr. Hanberry.  SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964, 42  U.S.C. 2000d, et seq. and its implementing regulations provide that no  person shall be subjected to discrimination on the basis of race,  color, or national origin under any program or activity that receives  Federal financial assistance.     The purpose of this policy guidance is to clarify the  responsibilities of recipients of Federal financial assistance from the  U.S. Department of Treasury (``recipients''), and assist them in  fulfilling their responsibilities to limited English proficient (LEP)  persons, pursuant to Title VI of the Civil Rights Act of 1964 and  implementing regulations. The policy guidance reiterates the Federal  government's longstanding position that in order to avoid  discrimination against LEP persons on the grounds of national origin,  recipients must take reasonable steps to ensure that such persons have  meaningful access to the programs, services, and information those  recipients provide, free of charge.     This document was originally published on March 7, 2001. See 66 FR  13829. The document was based on the 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 October 26, 2001 and January 11, 2002, the Assistant Attorney  General for Civil Rights issued to Federal departments and agencies  guidance memoranda, which reaffirmed the Department of Justice's  commitment to ensuring that Federally assisted programs and activities  fulfill their LEP responsibilities and which clarified and answered  certain questions raised regarding the August 16th publication. The  Department of Treasury is presently reviewing its original March 7,  2001, publication in light of these clarifications, to determine  whether there is a need to clarify or modify the March 7th guidance. In  furtherance of those memoranda, the Department of Treasury is  republishing its guidance for the purpose of obtaining additional  public comment.     The text of the complete guidance document appears below.      Dated: February 28, 2002. Edward R. Kingman, Jr., Assistant Secretary for Management and Chief Financial Officer, United  States Department of the Treasury.  Policy Guidance  A. Background      On August 11, 2000, President Clinton signed Executive Order 13166,  ``Improving Access to Services for Persons with Limited English  Proficiency.'' The purpose of this Executive Order is to eliminate to  the maximum extent possible limited English proficiency (LEP) as an  artificial barrier to full and meaningful participation in all  Federally assisted programs and activities.     The EO requires that Federal agencies draft Title VI guidance  specifically tailored to their recipients of Federal financial  assistance, taking into account the types of services provided, the  individuals served, and the programs and activities assisted to ensure  that recipients provide meaningful access to their LEP applicants and  beneficiaries. To assist Federal agencies in carrying out these  responsibilities, the Department of Justice (DOJ) issued a Policy  Guidance Document,  [[Page 10478]]  ``Enforcement of Title VI of the Civil Rights Act of 1964--National  Origin Discrimination Against Persons With Limited English Proficiency  (LEP Guidance)''. DOJ's LEP Guidance sets forth the compliance  standards that recipients of Federal financial assistance must follow  to ensure that programs and activities normally provided in English are  accessible to LEP persons and thus do not discriminate on the basis of  national origin in violation of Title VI.     This document contains guidance to recipients of financial  assistance from the Department and its constituent bureaus. It is  consistent with DOJ's policy guidance and provides recipients of  Treasury assistance the necessary tools to assure language assistance  to LEP persons. It is also consistent with the government-wide Title VI  regulation issued by DOJ in 1976, ``Coordination of Enforcement of  Nondiscrimination in Federally Assisted Programs,'' 28 CFR part 42,  subpart F, that addresses the circumstances in which recipients must  provide written language assistance to LEP persons.\1\ This guidance  will be provided to all recipients of Treasury assistance to ensure  compliance with the nondiscrimination provisions of Title VI as it  applies to language proficiency. ---------------------------------------------------------------------------      \1\ The DOJ coordination regulations at 28 CFR. 42.405(d)(1)  provide that ``[w]here a significant number or proportion of the  population eligible to be served or likely to be directly affected  by a federally assisted programs (e.g., affected by relocation)  needs service or information in a language other than English in  order effectively to be informed of or to participate in the  program, the recipient shall take reasonable steps, considering the  scope of the program and the size and concentration of such  population, to provide information to appropriate languages to such  persons. This requirement applies with regard to written material of  the type which is ordinarily distributed to the public.'' ---------------------------------------------------------------------------  B. Introduction      English is the predominant language of the United States. According  to the 1990 Census, English is spoken by 95% of its residents. Of those  U.S. residents who speak languages other than English at home, the 1990  Census reports that 57% above the age of four speak English ``well to  very well.''     The United States is also, however, home to millions of national  origin minority individuals who are ``limited English proficient''  (LEP). That is, their primary language is not English, and they cannot  speak, read, write or understand the English language at a level that  permits them to interact effectively. Because of these language  differences and their inability to speak or understand English, LEP  persons may be excluded from participation, experience delays or  denials of services, or receive services based on inaccurate or  incomplete information in Treasury assisted programs.     Some recipients have sought to bridge the language gap by  encouraging language minority clients to provide their own interpreters  as an alternative to the agency's use of qualified bilingual employees  or interpreters. Persons of limited English proficiency must sometimes  rely on their minor children to interpret for them during visits to a  service facility. Alternatively, these clients may be required to call  upon neighbors or even strangers they encounter at the provider's  office to act as interpreters or translators. These practices have  severe drawbacks and may violate Title VI of the Civil Rights Act of  1964. (See Section D.6(a) of this notice.)     In each case, the impediments to effective communication and  adequate service are formidable. The client's untrained ``interpreter''  is often unable to understand the concepts or official terminology he  or she is being asked to interpret or translate. Even if the  interpreter possesses the necessary language and comprehension skills,  his or her mere presence may obstruct the flow of confidential  information to the provider. For example, clients of an IRS Taxpayer  Clinic would naturally be reluctant to disclose or discuss personal  details concerning their taxes, through relatives, minor children, or  friends, in this IRS assisted program.     When these types of circumstances are encountered, the level and  quality of services available to persons of limited English proficiency  stand in stark contrast to Title VI's promise of equal access to  Federally assisted programs and activities. Services denied, delayed or  provided under adverse circumstances for an LEP person may constitute  discrimination on the basis of national origin, in violation of Title  VI. Numerous Federal laws require the provision of language assistance  to LEP individuals seeking to access critical services and activities.  For instance, the Voting Rights Act bans English-only elections in  certain circumstances and outlines specific measures that must be taken  to ensure that language minorities can participate in elections. See 42  U.S.C. 1973 b(f)(1). Similarly, the Food Stamp Act of 1977 requires  states to provide written and oral language assistance to LEP persons  under certain circumstances. 42 U.S.C. 2020(e)(1) and (2). These and  other provisions reflect the judgment that providers of critical  services and benefits bear the responsibility for ensuring that LEP  individuals can meaningfully access their programs and services.  C. Legal Authority  1. Introduction     Over the last 30 years, Federal agencies have conducted thousands  of investigations and reviews involving language differences that  impede the access of LEP persons to services. Where the failure to  accommodate language differences discriminates on the basis of national  origin, Federal law has required recipients to provide appropriate  language assistance to LEP persons. For example, one of the largest  providers of Federal financial assistance, the Department of Health and  Human Services (HHS) has entered into voluntary compliance agreements  and consent decrees that require recipients who operate health and  social service programs to ensure that there are bilingual employees or  language interpreters to meet the needs of LEP persons seeking HHS  services. HHS has also required these recipients to provide written  materials and post notices in languages other than English. See Mendoza  v. Lavine, 412 F.Supp. 1105 (S.D.N.Y. 1976); and Asociacion Mixta  Progresista v. H.E.W., Civil Number C72-882 (N.D. Cal. 1976). The legal  authority for Treasury's enforcement actions is Title VI of the Civil  Rights Act of 1964, DOJ's government-wide implementing regulation for  Executive Order 12250, the August 11, 2000 DOJ LEP Guidance, and a  consistent body of case law, which are described below. 2. Statute and Regulation     Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.  Section 2000d et seq. states: ``No person in the United States shall,  on the ground of race, color, or national origin, be excluded from  participation in, be denied the benefits of, or be subjected to  discrimination under any program or activity receiving Federal  financial assistance.'' Treasury is in the process of drafting its own  Title VI regulations consistent with the model regulations provided by  DOJ, which require that: (a) A recipient under any program to which  these regulations apply, may not, directly or through contractual or  other arrangements, on grounds of race, color, or national origin:     (i) Deny an individual any service, financial aid, or other benefit  provided under the program;     (ii) Provide any service, financial aid, or other benefit to an  individual which is different, or is provided in a different manner,  from that provided to others under the program;     (b) A recipient, in determining the types of services, financial  aid, or other benefits, or facilities which will be  [[Page 10479]]  provided under any such program or the class of individuals to whom, or  the situations in which such services, financial aid or other benefits,  or facilities will be provided ``* * * may not directly, or through  contractual or other arrangements, utilize 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 with respect to individuals of a  particular race, color or national origin.'' (Emphasis added.) 3. Case Law     Extensive case law affirms the obligation of recipients of Federal  financial assistance to ensure that LEP persons can meaningfully access  Federally assisted programs. The U.S. Supreme Court, in Lau v. Nichols,  414 U.S. 563 (1974), recognized that recipients of Federal financial  assistance have an affirmative responsibility, pursuant to Title VI, to  provide LEP persons with a meaningful opportunity to participate in  public programs. In Lau, the Supreme Court ruled that a public school  system's failure to provide English language instruction to students of  Chinese ancestry who do not speak English denied the students a  meaningful opportunity to participate in a public educational program  in violation of Title VI of the Civil Rights Act of 1964.     As early as 1926, the Supreme Court recognized that language rules  were often discriminatory. In Yu Cong Eng et al. v. Trinidad, Collector  of Internal Revenue, 271 U.S. 500 (1926), the Supreme Court found that  a Philippine Bookkeeping Act that prohibited the keeping of accounts in  languages other than English, Spanish and Philippine dialects violated  the Philippine Bill of Rights that Congress had patterned after the  U.S. Constitution. The Court found that the Act deprived Chinese  merchants, who were unable to read, write or understand the required  languages, of liberty and property without due process. In Gutierrez v.  Municipal Court of S.E. Judicial District, 838 F.2d 1031,1039 (9th Cir.  1988), vacated as moot, 490 U.S. 1016 (1989), the court recognized that  requiring the use of English only is often used to mask national origin  discrimination. Citing McArthur, Worried About Something Else, 60 Int'l  J. Soc. Language, 87, 90-91 (1986), the court stated that because  language and accents are identifying characteristics, rules that have a  negative effect on bilingual persons, individuals with accents, or non- English speakers may be mere pretexts for intentional national origin  discrimination.     Another case that noted the link between language and national  origin discrimination is Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980)  cert. denied, 449 U.S. 1113 (1981). The court found that on the facts  before it a workplace English-only rule did not discriminate on the  basis of national origin since the complaining employees were  bilingual. However, the court stated that ``to a person who speaks only  one tongue or to a person who has difficulty using another language  other than the one spoken in his home, language might well be an  immutable characteristic like skin color, sex or place of birth.'' Id.  at 269.     The Fifth Circuit addressed language as an impermissible barrier to  participation in society in U.S. v. Uvalde Consolidated Independent  School District, 625 F.2d 547 (5th Cir. 1980). The court upheld an  amendment to the Voting Rights Act which addressed concerns about  language minorities, the protections they were to receive, and  eliminated discrimination against them by prohibiting English-only  elections. Most recently, in Sandoval v. Hagan, 7 F. Supp. 2d 1234  (M.D. Ala. 1998), affirmed, 197 F.3d 484, (11th Cir. 1999), petition  for certiorari granted, Alexander v. Sandoval 121 S. Ct. 28 (Sept. 26,  2000) (No. 99-1908), the Eleventh Circuit held that the State of  Alabama's policy of administering a driver's license examination in  English only was a facially neutral practice that had an adverse effect  on the basis of national origin, in violation of Title VI. The court  specifically noted the nexus between language policies and potential  discrimination based on national origin. That is, in Sandoval, the vast  majority of individuals who were adversely affected by Alabama's  English-only driver's license examination policy were national origin  minorities. 4. Department of Justice August 11, 2000 LEP Guidance     This Guidance is issued in compliance with EO 13166 and its  requirement that agencies providing Federal financial assistance  provide guidance to recipients that is consistent with DOJ's August 11,  2000 LEP Guidance. That Guidance sets forth the compliance standards  that recipients of Federal financial assistance must follow to ensure  that programs and activities are meaningfully accessible to LEP persons  and thus do not discriminate on the basis of national origin in  violation of Title VI. A recipient's policies or practices regarding  the provision of benefits and services to LEP persons need not be  intentional to be discriminatory, but may constitute a violation of  Title VI if they have an adverse effect on the ability of national  origin minorities to meaningfully access programs and services.  Accordingly, it is important for recipients to examine their policies  and practices to determine whether they adversely affect LEP persons.  This policy guidance provides a legal framework to assist recipients in  conducting such assessments.  D. Policy Guidance  1. Coverage     All entities that receive Federal financial assistance from  Treasury either directly or indirectly, through a grant, contract or  subcontract, are covered by this policy guidance. The term ``Federal  financial assistance'' to which Title VI applies includes but is not  limited to grants and loans of Federal funds, grants or donations of  Federal property, details of Federal personnel, or any agreement,  arrangement or other contract which has as one of its purposes the  provision of assistance.     Title VI prohibits discrimination in any program or activity that  receives Federal financial assistance. What constitutes a program or  activity covered by Title VI was clarified by Congress in 1988, when  the Civil Rights Restoration Act of 1987 (CRRA) was enacted. The CRRA  provides that, in most cases, when a recipient receives Federal  financial assistance for a particular program or activity, all  operations of the recipient are covered by Title VI, not just the part  of the program that uses the Federal assistance. Thus, all parts of the  recipient's operations would be covered by Title VI, even if the  Federal assistance is used only by one part. 2. Basic Requirements Under Title VI     A recipient whose policies, practices, or procedures exclude,  limit, or have the effect of excluding or limiting, the participation  of any LEP person in a Federally assisted program on the basis of  national origin may be engaged in discrimination in violation of Title  VI. In order to ensure compliance with Title VI, recipients must take  steps to ensure that LEP persons who are eligible for their programs or  services have meaningful access to the services, information, and  benefits that they provide. The most important step in meeting this  obligation is for recipients of Treasury financial assistance to  provide the language assistance  [[Page 10480]]  necessary to ensure such access, at no cost to the LEP person.     The type of language assistance a recipient/covered entity provides  to ensure meaningful access will depend on a variety of factors,  including the total resources and size of the recipient/covered entity,  the number or proportion of the eligible LEP population it serves, the  nature and importance of the program or service, including the  objectives of the program, the frequency with which particular  languages are encountered, and the frequency with which LEP persons  come into contact with the program. These factors are consistent with  and incorporate the standards set forth in the Department of Justice  ``Policy Guidance Document: on Enforcement of Title VI of the Civil  Rights Act of 1964--National Origin Discrimination Against Persons With  Limited English Proficiency (LEP Guidance),'' reprinted at 65 FR 50123  (August 16, 2000). There is no ``one size fits all'' solution for Title  VI compliance with respect to LEP persons. Treasury will make its  assessment of the language assistance needed to ensure meaningful  access on a case by case basis, and a recipient will have considerable  flexibility in determining precisely how to fulfill this obligation.  Treasury will focus on the end result--whether the recipient has taken  the necessary steps to ensure that LEP persons have meaningful access  to its programs and services.     The key to providing meaningful access for LEP persons is to ensure  that the recipient and LEP person can communicate effectively. The  steps taken by a covered entity must ensure that the LEP person is  given adequate information, is able to understand the services and  benefits available, and is able to receive those for which he or she is  eligible. The covered entity must also ensure that the LEP person can  effectively communicate the relevant circumstances of his or her  situation to the service provider.     Experience has shown that effective language assistance programs  usually contain the four measures described in Section 4 below. In  reviewing complaints and conducting compliance reviews, Treasury will  consider a program to be in compliance when the recipient effectively  incorporates and implements these four elements. The failure to  incorporate or implement one or more of these elements does not  necessarily mean noncompliance with Title VI, and Treasury will review  the totality of the circumstances to determine whether LEP persons can  meaningfully access the services and benefits of the recipient. 3. State or Local ``English-Only'' Laws     State or local ``English-only'' laws do not change the fact that  recipients cannot discriminate in violation of Title VI. Entities in  states and localities with ``English-only'' laws do not have to accept  Federal funding. However, if they do, they have to comply with Title  VI, including its prohibition against national origin discrimination by  recipients. 4. Ensuring Meaningful Access to LEP Persons     (a) The Four Keys to Title VI Compliance in the LEP Context.     The key to providing meaningful access to benefits and services for  LEP persons is to ensure that the language assistance provided results  in accurate and effective communication between the provider and LEP  applicant/client about the types of services and/or benefits available  and about the applicant's or client's circumstances. Although Treasury  recipients have considerable flexibility in fulfilling this obligation,  effective programs usually have the following four elements:      Assessment--The recipient conducts a thorough assessment  of the language needs of the population to be served;      Development of Comprehensive Written Policy on Language  Access--The recipient develops and implements a comprehensive written  policy that will ensure meaningful communication;      Training of Staff--The recipient takes steps to ensure  that staff understand the policy and are capable of carrying it out;  and      Vigilant Monitoring--The recipient conducts regular  oversight of the language assistance program to ensure that LEP persons  meaningfully access the program.     If implementation of one or more of these measures would be so  financially burdensome as to defeat the legitimate objectives of a  recipient's program, or if the recipient utilizes an equally effective  alternative for ensuring that LEP persons have meaningful access to  programs and services, Treasury will not find the recipient in  noncompliance. However, recipients should gather and maintain  documentation to substantiate any assertion of financial burden.     (b) Assessment.     The first key to ensuring meaningful access is for the recipient to  assess the language needs of the eligible population. A recipient  assesses language needs by identifying:      the number and proportion of LEP persons eligible to be  served or encountered by the recipient, the frequency of contact with  LEP language groups, the nature or importance of the activity, benefit,  or service, and the resources of the recipient.      the points of contact in the program or activity where  language assistance is likely to be needed.      the resources that will be needed to provide effective  language assistance.      the location and availability of these resources.      the arrangements that must be made to access these  resources in a timely fashion.     (c) Development of Comprehensive Written Policy on Language Access.     A recipient can ensure effective communication by developing and  implementing a comprehensive written language assistance program. This  program should include: policies and procedures for identifying and  assessing the language needs of its LEP applicants/clients; a range of  oral language assistance options; notice to LEP persons in a language  they can understand of the right to free language assistance; periodic  training of staff; monitoring of the program; and translation of  written materials in certain circumstances.\2\ ---------------------------------------------------------------------------      \2\ The Americans with Disabilities Act and Section 504 of the  Rehabilitation Act of 1973 both provide similar prohibitions against  discrimination on the basis of disability and require entities to  provide language assistance such as sign language interpreters for  hearing impaired individuals or alternative formats such as Braille,  large print or tape for vision impaired individuals. In developing a  comprehensive language assistance program, recipients should be  mindful of their responsibilities under the ADA and Section 504 to  ensure access to programs for individuals with disabilities. ---------------------------------------------------------------------------      (1) Oral Language Interpretation--In designing an effective  language assistance program, a recipient should develop procedures for  obtaining and providing trained and competent interpreters and other  oral language assistance services, in a timely manner, by taking some  or all of the following steps:      Hiring bilingual staff who are trained and competent in  the skill of interpreting;      Hiring staff interpreters who are trained and competent in  the skill of interpreting;      Contracting with an outside interpreter service for  trained and competent interpreters;      Arranging formally for the services of voluntary community  interpreters who are trained and competent in the skill of  interpreting;      Arranging/contracting for the use of a telephone language  interpreter service.     See Section D.6. (b)of this notice for a discussion on ``Competence  of Interpreters.''  [[Page 10481]]      The following provides guidance to recipients in determining which  language assistance options will be of sufficient quantity and quality  to meet the needs of their LEP beneficiaries:      Bilingual Staff--Hiring bilingual staff for client contact  positions facilitates participation by LEP persons. However, where  there are a variety of LEP language groups in a recipient's service  area, this option may be insufficient to meet the needs of all LEP  applicants and clients. Where this option is insufficient to meet the  needs, the recipient must provide additional and timely language  assistance. Bilingual staff must be trained and must demonstrate  competence as interpreters.      Staff Interpreters--Paid staff interpreters are especially  appropriate where there is a frequent and/or regular need for  interpreting services. These persons must be competent and readily  available.      Contract Interpreters--The use of contract interpreters  may be an option for recipients that have an infrequent need for  interpreting services, have less common LEP language groups in their  service areas, or need to supplement their in-house capabilities on an  as-needed basis. Such contract interpreters must be readily available  and competent.      Community Volunteers--Use of community volunteers may  provide recipients with a cost-effective method for providing  interpreter services. However, experience has shown that to use  community volunteers effectively, recipients must ensure that formal  arrangements for interpreting services are made with community  organizations so that these organizations are not subjected to ad hoc  requests for assistance. In addition, recipients must ensure that these  volunteers are competent as interpreters and understand their  obligation to maintain client confidentiality. Additional language  assistance must be provided where competent volunteers are not readily  available during all hours of service.      Telephone Interpreter Lines--A telephone interpreter  service line may be a useful option as a supplemental system, or may be  useful when a recipient encounters a language that it cannot otherwise  accommodate. Such a service often offers interpreting assistance in  many different languages and usually can provide the service in quick  response to a request. However, recipients should be aware that such  services may not always have readily available interpreters who are  familiar with the terminology peculiar to the particular program or  service. It is important that a recipient not offer this as the only  language assistance option except where other language assistance  options are unavailable.     (2) Translation of Written Materials--An effective language  assistance program ensures that written materials that are routinely  provided in English to applicants, clients and the public are available  in regularly encountered languages other than English. It is  particularly important to ensure that vital documents are translated. A  document will be considered vital if it contains information that is  critical for accessing the services, rights, and/or benefits, or is  required by law. Thus, vital documents include, for example,  applications; consent forms; letters and notices pertaining to the  reduction, denial or termination of services or benefits; and letters  or notices that require a response from the beneficiary or client. For  instance, if a complaint form is necessary in order to file a claim  with an agency, that complaint form would be vital information. Non- vital information includes documents that are not critical to access  such benefits and services.     As part of its overall language assistance program, a recipient  must develop and implement a plan to provide written materials in  languages other than English where a significant number or percentage  of the population eligible to be served or likely to be directly  affected by the program needs services or information in a language  other than English to communicate effectively. (See 28 CFR  42.405(d)(1)). Treasury will determine the extent of the recipient's  obligation to provide written translation of documents on a case by  case basis, taking into account all relevant circumstances, including:  (1) The nature, importance, and objective of the particular activity,  program, or service; (2) the number or proportion of LEP persons  eligible to be served or encountered by the recipient; (3) the  frequency with which translated documents are needed; and (4) the total  resources available to the recipient as compared to the length of the  document and cost of translation.     One way for a recipient to know with greater certainty that it will  be found in compliance with its obligation to provide written  translations in languages other than English is for the recipient to  meet the guidelines outlined in paragraphs (A) and (B) below, which  outline the circumstances that provide a ``safe harbor'' for  recipients. A recipient that provides written translations under these  circumstances can be confident that it will be found in compliance with  its obligation under Title VI regarding written translations.\3\  However, the failure to provide written translations under these  circumstances outlined in paragraphs (A) and (B) will not necessarily  mean noncompliance with Title VI. ---------------------------------------------------------------------------      \3\ The ``safe harbor'' provisions are not intended to establish  numerical thresholds for when a recipient must translate documents.  The numbers and percentages included in these provisions are based  on the balancing of a number of factors, including experience in  enforcing Title VI in the context of Treasury programs, and  Treasury's discussions with other agecies about experiences of their  grant recipients with language across issues. ---------------------------------------------------------------------------      In such situations, Treasury will review the totality of the  circumstances to determine the precise nature of a recipient's  obligation to provide written materials in languages other than English  as indicated earlier.     Treasury will consider a recipient to be in compliance with its  Title VI obligation to provide written materials in non-English  languages if:     (A) The recipient provides translated written materials, including  vital documents, for each eligible LEP language group that constitutes  ten percent or 3,000, whichever is less, of the population of persons  eligible to be served or likely to be directly affected by the  recipient's program \4\; ---------------------------------------------------------------------------      \4\ See section D.4.(c)(2) above for a description of vital  documents. Large documents, such as enrollment handbooks, may not  need to be translated in their entirety. However, vital information  contained in large documents must be translated. ---------------------------------------------------------------------------      (B) Regarding LEP language groups that do not fall within paragraph  (A) above, but constitute five percent or 1,000, whichever is less, of  the population of persons eligible to be served or likely to be  directly affected, the recipient ensures that, at a minimum, vital  documents are translated into the appropriate non-English languages of  such LEP persons. Translation of other documents, if needed, can be  provided orally; and     (C) Notwithstanding paragraphs (A) and (B) above, a recipient with  fewer than 100 persons in a language group eligible to be served or  likely to be directly affected by the recipient's program, does not  translate written materials but provides written notice in the primary  language of the LEP language group of the right to receive competent  oral translation of written materials.     The term ``persons eligible to be served or likely to be directly  affected'' relates to the issue of what is the recipient's service area  for purposes of meeting its Title VI obligation. There is no ``one size  fits all'' definition of what constitutes ``persons eligible to be  [[Page 10482]]  served or likely to be directly affected'' and Treasury will address  this issue on a case by case basis. Ordinarily, these persons are those  who are in the geographic area that has been approved by a Federal  grant agency as the recipient's service area. Thus, for language groups  that do not fall within paragraphs (A) and (B), above, a recipient can  ensure access by providing written notice in the LEP person's primary  language of the right to receive free language assistance.     Recent technological advances have made it easier for recipients to  store translated documents readily. At the same time, Treasury  recognizes that recipients in a number of areas, such as many large  cities, regularly serve LEP persons from many different areas of the  world who speak dozens of different languages. It would be unduly  burdensome to demand that recipients in these circumstances translate  all written materials into these languages. As a result, Treasury will  determine the extent of the recipient's obligation to provide written  translations of documents on a case by case basis, looking at the  totality of the circumstances.     It is also important to ensure that the person translating the  materials is well qualified. In addition, in some circumstances  verbatim translation of materials may not accurately or appropriately  convey the substance of what is contained in the written materials. An  effective way to address this potential problem is to reach out to  community-based organizations to review translated materials to ensure  that they are accurate and easily understood by LEP persons.     (3) Methods for Providing Notice to LEP Persons--A vital part of a  well-functioning compliance program includes having effective methods  for notifying LEP persons of their right to language assistance and the  availability of such assistance free of charge. These methods include  but are not limited to:      Use of language identification cards that allow LEP  persons to identify their language needs to staff. To be effective, the  cards (e.g., ``I speak'' cards) must invite the LEP person to identify  the language he/she speaks.      Posting and maintaining signs in regularly encountered  languages other than English in waiting rooms, reception areas and  other initial points of entry. To be effective, these signs must inform  LEP persons of their right to free language assistance services and  invite them to identify themselves as persons needing such services.      Translation of application forms and instructional,  informational and other written materials into appropriate non-English  languages by competent translators. For LEP persons whose language does  not exist in written form, assistance from an interpreter to explain  the contents of the document.      Uniform procedures for timely and effective telephone  communication between staff and LEP persons. This must include  instructions for English-speaking employees to obtain assistance from  interpreters or bilingual staff when receiving calls from or initiating  calls to LEP persons.      Inclusion of statements about the services available and  the right to free language assistance services, in appropriate non- English languages, in brochures, booklets, outreach and recruitment  information, and other materials that are routinely disseminated to the  public.     (d) Training of Staff.     Another vital element in ensuring that its policies are followed is  a recipient's dissemination of its policy to all employees likely to  have contact with LEP persons, and periodic training of these  employees. Effective training ensures that employees are knowledgeable  and aware of LEP policies and procedures, are trained to work  effectively with in-person and telephone interpreters, and understand  the dynamics of interpretation between clients, providers and  interpreters. It is important that this training be part of the  orientation for new employees and that all employees in client contact  positions be properly trained. Recipients may find it useful to  maintain a training registry that records the names and dates of  employees' training. Effective training is one means of ensuring that  there is not a gap between a recipient's written policies and  procedures, and the actual practices of employees who are in the front  lines interacting with LEP persons.     (e) Monitoring and Updating the LEP policy.     Recipients should always consider whether new documents, programs,  services, and activities need to be made accessible for LEP  individuals. They should then provide needed language services and  notice of those services to the LEP public and to employees. In  addition, Treasury recipients should evaluate their entire language  policy at least every three years. One way to evaluate the LEP policy  is to seek feedback from the community. Recipients should assess:      Current LEP populations in service area.      Current communication needs of LEP individuals encountered  by the program.      Whether existing assistance is meeting the needs of such  persons.      Whether staff knows and understands the LEP policy and how  to implement it.      Whether identified sources for assistance are still  available and viable. 5. Treasury's Assessment of Meaningful Access     The failure to take all of the steps outlined in Section D(4),  above, will not necessarily mean that a recipient has failed to provide  meaningful access to LEP clients. The following are examples of how  meaningful access will be assessed by Treasury:      A small recipient has about 50 LEP Hispanic clients and a  small number of employees, and asserts that he cannot afford to hire  bilingual staff, contract with a professional interpreter service, or  translate written documents. To accommodate the language needs of LEP  clients, the recipient has made arrangements with a Hispanic community  organization for trained and competent volunteer interpreters, and with  a telephone interpreter language line, to interpret during  consultations and to orally translate written documents. There have  been no client complaints of inordinate delays or other service related  problems with respect to LEP clients. Given the resources, the size of  the staff, and the size of the LEP population, Treasury would find this  recipient in compliance with Title VI.      A recipient with a large budget serves 500,000  beneficiaries. Of the beneficiaries eligible for services, 3,500 are  LEP Chinese persons, 4,000 are LEP Hispanic persons, 2,000 are LEP  Vietnamese persons and about 400 are LEP Laotian persons. The recipient  has no policy regarding language assistance to LEP persons, and LEP  clients are told to bring their own interpreters, are provided with  application and consent forms in English and if unaccompanied by their  own interpreters, must solicit the help of other clients or must return  at a later date with an interpreter. Given the size of this program,  its resources, the size of the eligible LEP population, and the nature  of the program, Treasury would likely find this recipient in violation  of Title VI and would likely require it to develop a comprehensive  language assistance program that includes all of the options discussed  in Section D.4, above. 6. Interpreters     Two recurring issues in the area of interpreter services involve  (a) the use of friends, family, or minor children as interpreters, and  (b) the need to ensure that interpreters are competent.  [[Page 10483]]      (a) Use of Friends, Family and Minor Children as Interpreters--A  recipient may expose itself to liability under Title VI if it requires,  suggests, or encourages an LEP person to use friends, minor children,  or family members as interpreters, as this could compromise the  effectiveness of the service. Use of such persons could result in a  breach of confidentiality or reluctance on the part of individuals to  reveal personal information critical to their situations. In addition,  family and friends usually are not competent to act as interpreters,  since they are often insufficiently proficient in both languages,  unskilled in interpretation, and unfamiliar with specialized  terminology.     If after a recipient informs an LEP person of the right to free  interpreter services, the person declines such services and requests  the use of a family member or friend, the recipient may use the family  member or friend, if the use of such a person would not compromise the  effectiveness of services or violate the LEP person's confidentiality.  The recipient should document the offer and decline in the LEP person's  file. Even if an LEP person elects to use a family member or friend,  the recipient should suggest that a trained interpreter sit in on the  encounter to ensure accurate interpretation.     (b) Competence of Interpreters--In order to provide effective  services to LEP persons, a recipient must ensure that it uses persons  who are competent to provide interpreter services. Competency does not  necessarily mean formal certification as an interpreter, though  certification is helpful. On the other hand, competency requires more  than self-identification as bilingual. The competency requirement  contemplates demonstrated proficiency in both English and the other  language, orientation and training that includes the skills and ethics  of interpreting (e.g., issues of confidentiality), fundamental  knowledge in both languages of any specialized terms, or concepts  peculiar to the recipient's program or activity, sensitivity to the LEP  person's culture and a demonstrated ability to convey information in  both languages, accurately. A recipient must ensure that those persons  it provides as interpreters are trained and demonstrate competency as  interpreters. 7. Examples of Prohibited Practices     Listed below are examples of practices which may violate Title VI:      Providing services to LEP persons that are more limited in  scope or are lower in quality than those provided to other persons, or  placing greater burdens on LEP than on non-LEP persons;      Subjecting LEP persons to unreasonable delays in the  delivery of services, or the provision of information on rights;      Limiting participation in a program or activity on the  basis of English proficiency;      Failing to inform LEP persons of the right to receive free  interpreter services and/or requiring LEP persons to provide their own  interpreter.  E. Promising Practices      In meeting the needs of their LEP clients, some recipients have  found unique ways of providing interpreter services and reaching out to  the LEP community. Examples of promising practices include the  following:     Language Banks--In several parts of the country, both urban and  rural, community organizations and providers have created community  language banks that train, hire and dispatch competent interpreters to  participating organizations, reducing the need to have on-staff  interpreters for low demand languages. These language banks are  frequently nonprofit and charge reasonable rates.     Pamphlets--A recipient has created pamphlets in several languages,  entitled ``While Awaiting the Arrival of an Interpreter.'' The  pamphlets are intended to facilitate basic communication between  clients and staff. They are not intended to replace interpreters but  may aid in increasing the comfort level of LEP persons as they wait for  services.     Use of Technology--Some recipients use their internet and/or  intranet capabilities to store translated documents online. These  documents can be retrieved as needed.     Telephone Information Lines--Recipients have established telephone  information lines in languages spoken by frequently encountered  language groups to instruct callers, in the non-English languages, on  how to leave a recorded message that will be answered by someone who  speaks the caller's language.     Signage and Other Outreach--Other recipients have provided  information about services, benefits, eligibility requirements, and the  availability of free language assistance, in appropriate languages by  (a) posting signs and placards with this information in public places  such as grocery stores, bus shelters and subway stations; (b) putting  notices in newspapers, and on radio and television stations that serve  LEP groups; (c) placing flyers and signs in the offices of community- based organizations that serve large populations of LEP persons; and  (d) establishing information lines in appropriate languages.  F. Model Plan      The following example of a model language assistance program may be  useful for recipients in developing their plans. The plan incorporates  a variety of options and methods for providing meaningful access to LEP  individuals:      A formal written language assistance program.      Identification and assessment of the languages that are  likely to be encountered and estimating the number of LEP persons that  are eligible for services and that are likely to be affected by its  program through a review of census and client utilization data and data  from school systems and community agencies and organizations.      Posting of signs in lobbies and in other waiting areas, in  several languages, informing applicants and clients of their right to  free interpreter services and inviting them to identify themselves as  persons needing language assistance.      Use of ``I speak'' cards by intake workers and other  contact personnel so that they can identify their primary languages.      Keeping the language of the LEP person in his/her record  if such a record would normally be kept for non-LEP persons so that all  staff can identify the language assistance needs of the client.      Employment of a sufficient number of staff, bilingual in  appropriate languages, in client contact positions. These persons must  be trained and competent as interpreters.      Contracts with interpreting services that can provide  competent interpreters in a wide variety of languages, in a timely  manner.      Formal arrangements with community groups for competent  and timely interpreter services by community volunteers.      An arrangement with a telephone language interpreter line.      Translation of application forms, instructional,  informational and other key documents into appropriate non-English  languages. Provision of oral interpreter assistance with documents, for  those persons whose language does not exist in written form.      Procedures for effective telephone communication between  staff and LEP persons, including instructions for English-speaking  employees to obtain assistance from bilingual staff or interpreters  when initiating or receiving calls from LEP persons.  [[Page 10484]]       Notice to and training of all staff, particularly client  contact staff, with respect to the recipient's Title VI obligation to  provide language assistance to LEP persons, and on the language  assistance policies and the procedures to be followed in securing such  assistance in a timely manner.      Insertion of notices, in appropriate languages, about the  right of LEP applicants and clients to free interpreters and other  language assistance, in brochures, pamphlets, manuals, and other  materials disseminated to the public and to staff.      Notice to the public regarding the language assistance  policies and procedures, and notice to and consultation with community  organizations that represent LEP language groups, regarding problems  and solutions, including standards and procedures for using their  members as interpreters.      Adoption of a procedure for the resolution of complaints  regarding the provision of language assistance; and for notifying  clients of their right to and how to file a complaint under Title VI  with Treasury.      Appointment of a senior level employee to coordinate the  language assistance program, and assurance that there is regular  monitoring of the program.  G. Compliance and Enforcement      Treasury will enforce recipients' responsibilities to LEP  beneficiaries through procedures provided for in Title VI regulations.  These procedures include complaint investigations, compliance reviews,  efforts to secure voluntary compliance, and technical assistance.  Treasury will always provide recipients with the opportunity to come  into voluntary compliance prior to initiating formal enforcement  proceedings.     In determining compliance with Title VI, Treasury's concern will be  whether the recipient's policies and procedures allow LEP persons to  overcome language barriers and participate meaningfully in programs,  services and benefits. A recipient's appropriate use of the methods and  options discussed in this guidance will be viewed by Treasury as  evidence of a recipient's intent to comply with Title VI.  H. Complaint Process      Anyone who believes that he/she has been discriminated against  because of race, color or national origin in violation of Title VI may  file a complaint with Treasury within 180 days of the date on which the  discrimination took place.     The following information should be included:      Your name and address (a telephone number where you may be  reached during business hours is helpful, but not required);      A general description of the person(s) or class of persons  injured by the alleged discriminatory act(s);      The name and location of the organization or institution  that committed the alleged discriminatory act(s);      A description of the alleged discriminatory act(s) in  sufficient detail to enable the Office of Equal Opportunity Program  (OEOP) to understand what occurred, when it occurred, and the basis for  the alleged discrimination.      The letter or form must be signed and dated by the  complainant or by someone authorized to do so on his or her behalf.     A recipient may not retaliate against any person who has made a  complaint, testified, assisted or participated in any manner in an  investigation or proceeding under the statutes governing federal  financial assistance programs.     Civil rights complaints should be filed with: Department of the  Treasury, Office of Equal Opportunity Program, 1500 Pennsylvania  Avenue, NW, Room 6071 Metropolitan Square, Washington, DC 20220.  I. Technical Assistance      Treasury and its bureaus will provide technical assistance to  recipients, and will continue to be available to provide such  assistance to any recipient seeking to ensure that it operates an  effective language assistance program. In addition, during its  investigative process, Treasury is available to provide technical  assistance to enable recipients to come into voluntary compliance.  [FR Doc. 02-5421 Filed 3-6-02; 8:45 am] BILLING CODE 4810-25-P