Reports and guidance documents; availability, etc.: National origin discrimination as it affects limited English proficient persons; prohibition; policy guidance to Federal financial assistance recipients,

[Federal Register: February 20, 2002 (Volume 67, Number 34)]

[Notices]

[Page 7692-7698]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr20fe02-55]

GENERAL SERVICES ADMINISTRATION

Office of Civil Rights; Title VI of the Civil Rights Act of 1964; Limited English Proficiency Policy Guidance for Recipients of Federal Financial Assistance

AGENCY: General Services Administration.

ACTION: Notice of policy guidance with request for comment.

SUMMARY: The General Services Administration (GSA) 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: Effective date: This guidance was effective January 17, 2001. Comment due date: Comments must be submitted on or before March 22, 2002. GSA 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 the Office of Civil Rights (AK), Room 5127, General Services Administration, 1800 F Street, NW., Washington, DC 20405. Comments may also be submitted by e-mail at evelyn.britton@gsa.gov, or facsimile at 202-219-3369.

FOR FURTHER INFORMATION CONTACT: James M. Taylor or K. Evelyn Britton, Office of Civil Rights, Room 5127, General Services Administration, 1800 F Street, NW., Washington, DC 20405, telephone 202-501-0767 or 1- 800-662-6376; TDD 1-888-267-7660. Arrangements to receive the policy guidance in an alternative format may be made by contacting the named individuals.

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 GSA (``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. This document was originally published on January 17, 2001. (See 66 FR 4026.) 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

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regarding the August 16th publication. GSA is presently reviewing its original January 17, 2001, publication in light of these clarifications to determine whether there is a need to clarify or modify the January 17th guidance. In furtherance of those memoranda, GSA is republishing its guidance for the purpose of obtaining additional public comment. The text of the complete guidance document appears below.

Dated: February 13, 2002. Madeline Caliendo, Associate Administrator, Office of Civil Rights, General Services Administration.

Policy Guidance

1. Subject. Limited English proficiency policy guidance for recipients of Federal financial assistance

2. Purpose. General Services Administration (GSA) provides this policy guidance for its recipients of Federal financial assistance to ensure meaningful access to federally assisted programs and activities for persons with Limited English Proficiency (LEP). This policy guidance does not create new obligations, but rather, clarifies existing responsibilities under Title VI of the Civil Rights Act of 1964, as amended, its implementing regulations and relevant case law.

3. Dates. This guidance was effective January 17, 2001. Comments must be submitted on or before March 22, 2002. GSA will review all comments and will determine what modifications to the policy guidance, if any, are necessary.

4. Policy. To improve access to federally assisted programs and activities for persons who, as a result of national origin, are limited in their English proficiency.

5. Action Required. All recipients of Federal financial assistance from GSA are to develop an effective plan, in writing, for ensuring meaningful access to their programs and activities by LEP persons, consistent with this guidance.

6. Background Information. 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 home to millions of national origin minority individuals who are 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 with recipients of Federal financial assistance. Because of language differences and the inability to effectively speak or understand English, persons with LEP may be subject to exclusion from programs or activities, experience delays or denials of services/benefits, or receive care and services/benefits from recipients of Federal financial assistance based on inaccurate or incomplete information.

   Executive Order 13166 (65 FR 50119) dated August 11, 2000 and policy guidance issued by Department of Justice (DOJ) on August 11, 2000 (65 FR 50123), address the responsibility of all recipients of Federal financial assistance to ensure meaningful access for persons with LEP. GSA refers to and incorporates DOJ's policy guidance for recipients as part of this policy guidance, and for the purpose of determining compliance with this policy guidance, within the scope of Title VI of the Civil Rights of 1964, as amended, its implementing regulations and relevant case law.

   This policy guidance establishes a four-step process that recipients should follow in developing an effective LEP assistance plan. A key element in this process is stakeholder input. Therefore, recipients should coordinate with local community-based organizations (i.e., stakeholders) that represent populations of LEP persons. These organizations can provide valuable input and assistance in identifying and addressing the LEP needs of the serviced population. This coordinated effort will assist in developing a practical approach in providing appropriate LEP assistance that is reasonable and cost- effective.

   Some organizations representing LEP persons may include the National Council of La Raza (NCLR), the League of United Latin American Citizens (LULAC), the National Council of Asian Pacific Americans (NCAPA), the Organization of Chinese Americans (OCA), the National Congress of American Indians (NCAI), the National Urban League (NUL), the National Association for the Advancement of Colored People (NAACP), Mexican American Legal Defense and Educational Fund, Arab American Anti-Discrimination Committee and National Coalition for Haitian Rights. This is not meant to be an exhaustive listing, and different community-based or national origin minority organizations may be available in a recipient's serviced area.

7. Legal Authority. The legal authority for the Office of Civil Right's (OCR's) enforcement actions is Title VI of the Civil Rights Act of 1964, GSA's implementing regulations, and a consistent body of case law, and is further described below.

   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.''

   State and local laws may provide additional obligations to serve LEP individuals, but cannot compel recipients of Federal financial assistance to violate Title VI. For instance, given our constitutional structure, State or local ``English-only'' laws do not relieve an entity that receives Federal funding from its responsibilities under Federal anti-discrimination laws. Entities in States and localities with ``English-only'' laws are certainly not required to accept Federal funding--but if they do, they have to comply with Title VI, including its prohibition against national origin discrimination by recipients of Federal assistance. Thus, failing to make federally assisted programs and activities accessible to individuals who are LEP will, in certain circumstances, violate Title VI.

   GSA's implementation regulations provide, in part, at 41 CFR 101- 6.204-1:

   ``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 otherwise subjected to discrimination under any program to which this subpart applies.''

   Specific discriminatory actions prohibited are addressed at 41 CFR 101-6.204-2:

   ``(a)(1) In connection with any program to which this subpart applies, a recipient may not, directly or through contractual or other arrangements, on the ground of race, color, or national origin:

   (i) Deny an individual any services/benefits, financial aid, or other benefit provided under the program;

   (ii) Provide any service, financial aid, or other benefit to any individual which is different, or is provided in a different manner, from that provided to others under the program;

   (iii) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;

   (iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;

   (v) Treat an individual differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial

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   aid, or other benefit provided under the program;

   (vi) Deny an individual an opportunity to participate in the program through the provision of services or otherwise, or afford him an opportunity to do so which is different from that afforded others under the program* * *''

   Furthermore, the DOJ coordination regulations for Title VI, located at 28 CFR 42.405(d)(1), provide that:

   ``(1) Where a significant number or proportion of the population eligible to be served or likely to be directly affected by a federally assisted program (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 in appropriate languages to such persons. This requirement applies with regard to written material of the type which is ordinarily distributed to the public.''

   Extensive case law affirms the obligation of recipients of Federal financial assistance to ensure that persons with LEP can meaningfully access federally assisted programs. Specifically, in the case of Lau v. Nichols, 414 U.S. 563 (1974), the U.S. 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.

   More recently, the Eleventh Circuit in Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999), cert. granted sub. Nom., Alexander v. Sandoval, 147 L. Ed. 2d 1051 (U.S. Sept. 26, 2000) (No. 99-1908), 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. Title VI regulations prohibit both intentional discrimination and policies and practices that appear neutral but have a discriminatory effect. Thus, a recipient's policies or practices regarding the provision of benefits and services to persons with LEP need not be intentional to be discriminatory, but may constitute a violation of Title VI where they have an adverse effect on the ability of national origin minorities to meaningfully access programs and services.

   The DOJ states in its policy guidance that Title VI does not require recipients to remove language barriers when English is an essential aspect of the program, or there is another ``substantial legitimate justification for the challenged practice.'' See Footnote 13 of DOJ's policy guidance.

8. Federal Financial Assistance Programs. GSA administers two major Federal financial assistance programs, in addition to other programs of Federal financial assistance, such as the direct transfer of personal property and the allotment of space in GSA buildings. The two major programs of Federal financial assistance are the Federal Surplus Personal Property Donation Programs and the Disposal of Federal Surplus Real Property for Public Use.

   1. Federal Surplus Personal Property Donation Program. Enables certain non-Federal agencies, institutions, organizations and certain small businesses to obtain property that the Federal Government no longer needs. The personal property includes all types and categories of property, such as hand and machine tools, office machines and supplies, furniture, appliances, medical supplies, hardware, clothing, motor vehicles, boats, airplanes, construction equipment, textiles, communications and electronic equipment and gifts or decorations given to Government officials by foreign dignitaries.

      (1) Federal surplus personal property may be donated to nonprofit educational and public health activities exempt from taxation under Section 501 of the Internal Revenue Code. The property must be used to aid education or public health, and includes programs for the homeless. Eligible recipients include nonprofit educational and public health activities, such as medical institutions, hospitals, clinics, health centers, and drug abuse treatment centers; schools, colleges and universities; schools for persons with mental or physical disabilities; child care centers; educational radio and televisions licensed by the Federal Communications Commission; museums attended by the public; and libraries. Nonprofit, tax-exempt organizations that provide food, shelter, or support services to homeless people may also be eligible to receive surplus property through the donation program (i.e., soup kitchens, day centers for the homeless, food banks, shelters for battered spouses, half-way houses).

      (2) Additionally, public agencies involved in such activities as conservation, economic development, education, park and recreation programs, public safety, public health, programs for the elderly, and programs for the homeless may be eligible for donations of surplus personal property. Public agencies generally include States, their departments, divisions and other instrumentalities; political subdivisions of States, including cities, counties, and other local Government units and economic development districts; instrumentalities created by compact or other agreement between State or political subdivisions; and Indian tribes, bands, groups, pueblos, or communities located on State reservations.

   2. Disposal of Federal Surplus Real Property for Public Use. Under existing Federal law, States and local government bodies and certain nonprofit institutions may acquire Federal surplus real property at discounts of up to 100% for various types of public use. These uses include: homeless services, airports/ports, correctional, educational, historic monument, parks/recreation, public health and wildlife conservation. These disposals are usually accomplished in coordination with other Federal agencies (i.e., Department of Education (DOE), Department of Health and Human Services (DHHS), Department of Transportation (DOT), Department of Interior (DOI), Department of Housing and Urban Development (HUD).

   3. GSA Personal Property Utilization Program. Government regulations mandate that Federal agencies, to the fullest extent practicable, use excess personal property as the first source of supply in meeting their requirements. However, certain laws provide Federal agencies with the ability to directly transfer certain excess property to non-Federal entities. For example, Executive Order 12999 (61 FR 17227, 3 CFR, 1996 comp., p. 180) provides that all Federal agencies, to the extent permitted by law, shall give highest preference to schools and nonprofit organizations, including community-based educational organizations, in the transfer of educationally useful Federal equipment. Thus, GSA recipients in this program include schools and certain community-based educational organizations.

   4. Allotment of Space. Under existing Federal law, GSA may allot space for little or no costs to Federal Credit Unions, vending stands operated by blind persons and child care centers.

9. Definition of Terms. The following definitions are provided for reference.

   1. Federal financial assistance: Grants and loan of Federal funds; grants or donation of Federal property and interests in property; detail of Federal personnel; sale and lease of, and the permission to use (on other than a casual or transient basis) Federal property or any interest in the property without consideration or at a nominal consideration, or at a consideration which is reduced for the purposes of assisting the recipient, or in recognition

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      of the public interest to be served by the sale or lease to the recipient; or any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.

   2. Recipient: Any State or political subdivision, any instrumentality of a State or political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended, directly or through another recipient, except that such term does not include any ultimate beneficiary of the assistance.

   3. Person with Limited English Proficiency: A person whose primary language is not English and whose ability to speak, read, write or understand the English language does not permit effective interaction with recipients of Federal financial assistance.

   4. Vital Documents: A document or information will be considered vital if it contains information that is critical for accessing the recipient's program(s) and/or activities, 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. Generally, entire web sites need not be translated. Only the vital information or documents within the web site should be translated. See subparagraph 11b(3) below for further discussion about web sites.

   5. Beneficiary: Individuals and/or entities that directly or indirectly receive an advantage through the operation of a Federal program, (i.e., one who is within the serviced population of the recipient of Federal financial assistance and who ultimately benefits from those services.)

10. LEP Procedures and Guidelines. Executive Order 13166 (65 FR 50119) provides for a flexible standard stating that recipients of Federal financial assistance are to take reasonable steps to ensure meaningful access to their programs and activities by LEP persons. Thus, it is important that all recipients take the following steps in determining their LEP responsibilities and providing appropriate LEP assistance. These four steps are more fully explained below, and include: (1) Conduct an assessment of the serviced population, (2) develop written LEP assistance plans, (3) implement the LEP plan, and (4) monitor the effectiveness of the LEP plan.

    1. Step 1. Conduct an assessment of the serviced population. This assessment includes identifying the types of service(s) being provided by the recipient and determining the serviced population (i.e., individuals served by the recipient's program(s) and activities).

    2. Step 2. Develop written LEP assistance plans. These plans should address the recipient's LEP responsibilities and the types of LEP assistance that the recipient will provide, consistent with this policy guidance. Recipients are to develop a written plan based on a balanced analysis of the following four factors, to ensure meaningful access for eligible LEP persons.

       (1) Factor 1: Number or Proportion of LEP Persons. One factor in determining the reasonableness of a recipient's efforts in providing LEP assistance is the number or proportion of people who will be excluded from the benefits or services absent efforts to remove language barriers. The key here is to focus on persons who are eligible to access the recipient's program or activity.

       The steps reasonable for a recipient that serves one LEP person a year may be different than those expected of a recipient that serves several LEP persons per day. However, those who serve a few are still subject to the requirements of Title VI of the Civil Rights Act of 1964 and Executive Order 13166 (65 FR 50119). This plan need not be intricate, and may be as simple as being prepared to use one of the commercially available language lines to obtain interpreter services within a reasonable period of time.

       Methods of obtaining estimates of serviced LEP population include taking a census of contacts with LEP persons over a given period of time or using demographic data of the service area. The 1990 U. S. Census information may be found at a local library or on the Internet at www.Census.gov. The 2000 Census data may not be available until the 2001-02timeframe. In addition to the U. S. Census, other potential resources include State and local government offices; the Mayor's office; the local school superintendent's office; the State education department; the State social services department, and local hospitals; or other elected officials offices. Combining these methods will probably result in the most realistic and accurate estimates.

       Local or State Yellow Pages may also be helpful in identifying organizations that serve or represent particular language minority populations. Local national origin minority organizations may be able to provide, or assist in obtaining, certain demographic information regarding LEP populations in the local area. The information that can be obtained and the network established in coordinating this type of effort with members of local and State government offices and minority organizations may prove to be valuable resources for recipients into the future.

       (2) Factor 2: Frequency of Contact with the Program. Frequency of contacts between the recipient's program or activity and LEP persons is another factor to be weighed. For example, if LEP persons must access the program or activity on a daily basis, the recipient has a greater LEP responsibility than if such contact is unpredictable or infrequent. Recipients should take into account local or regional conditions when determining frequency of contact.

       Although past experience may be helpful in determining the frequency of contact, it should not be used as the exclusive criteria since the lack of prior LEP notice and assistance may have contributed to such minimal or non-existent contact.

       (3) Factor 3: Nature and Importance of the Program. The importance of the services or benefits provided to the beneficiaries will affect the determination of the reasonable steps required. More affirmative steps are required in those programs where the denial or delay of access may have life or death implications than in programs that are not as crucial to one's day-to-day existence. For example, fire protection services are of more importance to the serviced population than access to a museum.

       Recipients must also consider the importance of the program or activity to the eligible LEP population, both immediately, as well as the long-term. (i.e., what is the short-term and long-term impact to the LEP population if translation assistance is not provided?)

       (4) Factor 4: Resources Available. The resources available to a recipient of Federal financial assistance may impact the steps that recipients take. For example, a small recipient with limited resources may not need to take the same steps as a larger recipient to provide LEP assistance in programs that have a limited number of eligible LEP persons or where the contact is infrequent. However, small recipients are still subject to this policy guidance, although the type of LEP mitigation measures may differ from that of larger recipients. Claims of limited resources from larger entities should be well substantiated.

       A recipient that has limited resources may consider exploring whether State and local government offices provide translation assistance. These offices may provide resources for the recipient's use.

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       Also, recipients may consider contacting local minority organizations for possible translation assistance.

    3. Step 3: Implement the LEP plan. The key to successful implementation of an effective LEP assistance plan is to ensure that the serviced population is notified regarding the availability of free LEP assistance. Also, it is important that a recipient's staff is aware of LEP responsibilities and the recipient's LEP assistance plan.

       (1) Notice of LEP assistance to be provided. Each recipient of Federal financial assistance is to notify the public of available LEP assistance at no cost to the LEP person. This may be done through a brochure or poster in the language(s) identified in the location(s) where the recipient's federally assisted service(s) and/or benefits are being provided. Posters should be placed in a conspicuous place to ensure LEP persons will see it. It may also include posting such notice on the recipient's internet site(s). Sample language to use for such notice is as follows: ``Language assistance is available upon request if you cannot speak or write English very well.''

       (2) Ensure staff is aware of LEP responsibilities. Recipients are to ensure that GSA's policy regarding LEP responsibilities is communicated to all staff members whose duties may bring them in contact with LEP persons accessing the services and/or benefits of the recipient. This communication should ensure an understanding of the types of LEP assistance being offered by the recipient, and the mechanisms in place for the staff to use when a request for LEP assistance is made.

    4. Step 4: Monitor the effectiveness of the LEP plan. LEP assistance requirements may change over a period of time. Therefore, it is important to regularly monitor, and when appropriate, adjust the LEP procedures to ensure meaningful access for persons with LEP. New programs, activities, forms, outreach documents, etc. should be considered for translation services as they arise. In addition, to be effective, it is crucial for recipients to re-assess language assistance services at least every three years to determine the effectiveness of existing assistance. This assessment should include a review of LEP policies and procedures (i.e., the LEP plan) with the recipient's staff. Feedback from LEP persons and community-based organizations will also provide helpful insights into the effectiveness of LEP assistance procedures.

11. Translation Requirements. In determining what is reasonable, the analysis should address the appropriate mix of written and oral language assistance. This includes information provided using the Internet, video and audio. When applying the four factors as outlined above, decisions should be made regarding which documents must be translated, when is oral translation necessary and whether such assistance (i.e., oral or written translation) should be immediately available or provided within a reasonable period of time.

    1. Oral Communication: Depending on the need, options for providing oral language assistance range from hiring bilingual staff or on-staff interpreters to contracting for interpreter services as needed, engaging community volunteers, or contracting with a telephone interpreter services. Oral communication between recipients and beneficiaries often is a necessary part of the exchange of information. Proper analysis should include looking at what kind of communication (oral or written) you normally provide to an English speaking person in order to fully communicate the program to them. Thus, there may be instances where simply providing written translation may not be providing meaningful access to persons with LEP in the same manner as that provided to non-LEP beneficiaries.

    2. Written Communication: As part of its overall language assistance program, a recipient's LEP assistance plan should provide for the translation of certain 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).

       (1) In determining what should be translated, identify vital documents and non-vital documents. Vital documents must be translated when a significant number or percentage of the population eligible to be served, or likely to be directly affected by the recipient's program(s) or activities, seeks services or information in a language other than English to communicate effectively. For many larger documents, translation of vital information contained within the document will suffice and the documents need not be translated in their entirety. Non-vital documents/information need not be translated.

       (2) OCR recognizes that it may sometimes be difficult to draw a distinction between vital and non-vital documents, particularly when considering outreach or awareness documents. Although meaningful access to a program or activity requires an awareness of the program's existence, OCR recognizes that it would be impossible, from a practical and cost-based perspective, to translate every piece of outreach material into every language. Title VI does not require this of its recipients. However, lack of awareness regarding the existence of a particular program may effectively deny LEP persons meaningful access. Thus, it is important that recipients continually survey and assess the needs of the eligible serviced populations in order to determine whether certain critical outreach materials should be translated into other languages.

       (3) The same analysis is to be used in determining the translation of web site information, forms, etc. The decision to place a document or information on the Internet will not affect whether the document or information must be translated. For example, placement on the web site should not change the recipient's original assessment regarding the number or proportion of LEP persons that comprise the intended audience for that document or information. Generally, entire web sites need not be translated. Only the vital information or documents within the web site should be translated. The four-factor analysis as outlined above determines the appropriate language(s) for translation. If the four- factor analysis determines that written information or a document should be translated, the same written document or information should be translated on the recipient's web siteu if the recipient's English version of the information or document is on the web site. A notice regarding the presence of a translated document or information on the web site should be posted at an initial entry point onto the site (usually the homepage).

       (4) Oral translation assistance will be provided to those persons with LEP whose language does not exist in written form. This oral translation assistance will explain the contents of vital documents.

    3. Reliability of Translation Resources and Interpretive Services: In order to provide effective services to LEP persons, it is important to ensure the use of competent interpreters. Although it is not a requirement, membership in or accreditation by the American Translators Association (ATA) is one indicator regarding the reliability and professionalism of language assistance vendors. However, competency does not necessarily mean formal certification as an interpreter, although certification is helpful. Yet, competency refers to more than being bilingual. It refers to demonstrated proficiency in both English and the other language, orientation and training that includes

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       the skills and ethics of interpreting (i.e., issues of confidentiality), fundamental knowledge in both languages of terms or concepts peculiar to the program or activity, and sensitivity to the LEP person's culture.

       It is also important to note that in some circumstances, verbatim translation of materials may not accurately and appropriately convey the substance of what is contained in the written language. An effective way to address this concern is to reach out to community- based organizations to review translated materials to ensure that the translation is accurate and easily understood by LEP persons.

       It is recommended that a different contractor conduct a second review of a translated document, when such document is of a highly technical or complex nature. Another method of ensuring reliability of such documents is to have the document translated back into English to determine if the source document lost important meaning in its foreign translation.

       Generally, it is not acceptable for recipients to rely upon an LEP individual's family members or friends to provide the interpreter services. The recipient should meet its obligations under Title VI by supplying competent language services free of cost. In rare emergency situations, the recipient may have to rely on an LEP person's family members or other persons whose language skills and competency in interpreting have not been established. Proper planning by recipients is important in order to ensure that those situations rarely occur. Therefore, it is not acceptable to rely upon an LEP person to provide his/her own interpreter, unless the LEP person requests the use of his/ her own interpreter or in the case of an emergency.

12. Examples. The following examples are being provided to facilitate the assessment, planning and implementation of a successful LEP plan.

    1. Examples of problem areas include: Providing services and/or benefits to LEP persons that are more limited in scope or lower in quality than those provided to other individuals; subjecting LEP persons to unreasonable delays; limiting participation in a recipient's program(s) or activities on the basis of English proficiency; providing services and/or benefits to LEP persons that are not as effective as those provided to persons proficient in English; failing to inform LEP persons of the right to receive free interpreter services; or requiring LEP persons to provide their own interpreter.

    2. Examples of satisfactory LEP assistance include: Having policies and procedures in place for identifying and assessing the language needs of the recipient's serviced LEP population; providing a range of oral language assistance options, appropriate to each of the recipient's circumstances; providing notice to LEP persons of the right to free language services; communicating LEP responsibilities and available services to staff members; program monitoring; establishing a plan for providing written materials in languages other than English where a significant number or percentage of the affected population needs services or information in a language other than English.

    3. Examples of applying the 4 factors: The following are examples of how meaningful access will be assessed by OCR:

       (1) Example 1. A small child care center has three LEP parents (two who are Chinese and one who is Cuban) whose English-speaking children attend its child care center on a regular basis. The center has a staff of six, and has limited financial resources to afford to hire bilingual staff, contract with a professional interpreter service, or translate written documents. To accommodate the language needs of their LEP parents, the Center made arrangements with a Chinese and a Hispanic community organization for trained and competent volunteer interpreters, and with a telephone interpreter language line, to interpret during parent meetings 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.

       Application of the 4 factors to Example 1: Factor 1: The center has three LEP parents (a small number); Factor 2: The frequency of contact is every day, but mostly for greeting; Factor 3: The nature and importance of the recipient's program to the serviced population relates to the health, safety and welfare of their children (i.e., child care); Factor 4: The child care center has limited resources and a small staff.

       The assistance that the child care center is providing will probably be considered appropriate, given the center's resources, the size of staff, and the size of the LEP population. Thus, OCR would find the center in compliance with Title VI.

       (2) Example 2. A county social service program has a large budget and serves 500,000 beneficiaries. Of the beneficiaries eligible for its services/benefits, 3,500 are LEP Chinese persons, 4,000 are LEP Hispanic persons, 2000 are LEP Vietnamese persons and about 400 are LEP Laotian persons. The county frequently encounters an LEP client, but has no policy regarding language assistance to LEP persons other than telling LEP clients to bring their own interpreters. LEP clients 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.

       Application of the 4 factors to Example 2: Factor 1: The eligible LEP population is significant; Factor 2: The frequency of contact is frequent; Factor 3: The nature and importance of the county's program relates to the social welfare of the community it serves; Factor 4: The county has a large budget.

       Given the size of the county program, its resources, the size of the eligible LEP population, the frequency of contact and the nature of the program, OCR would likely find the county in violation of Title VI and would require it to develop a comprehensive language assistance program.

    4. The intent of this guidance is to provide recipients with information regarding the requirements of Title VI and its implementing regulations for providing meaningful access for LEP persons to federally assisted services and/or benefits. The examples and framework outlined above are not intended to be exhaustive. Thus, recipients have considerable flexibility in determining how to comply with their legal obligation in meeting their LEP responsibilities, and are not required to use all of the suggested methods and options listed. However, recipients must establish and implement policies and procedures for providing language assistance sufficient to fulfill their Title VI responsibilities.

13. Compliance. All recipients must take reasonable steps (consistent with this policy guidance) to overcome language differences that result in barriers and provide the language assistance needed to ensure that persons with LEP have meaningful access to services and benefits.

    1. The failure to take all of the steps as outlined herein will not necessarily mean that a recipient has failed to provide meaningful access to LEP persons. OCR will make assessments on a case by case basis and will consider several factors in determining whether the steps taken by a recipient provide meaningful access. (i.e., nature and importance of recipient's services to the serviced population, recipient's size, availability of financial and other resources, and frequency of contact with LEP persons).

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    2. Those factors include the size of the recipient and the eligible LEP population, the nature of the program or service, the objectives of the program, the total resources available, the frequency with which particular languages are encountered, and the frequency with which LEP persons come into contact with the recipient's program.

    3. There are instances where recipients of Federal financial assistance from GSA may also be recipients of Federal financial assistance from other Federal agencies. For instance, hospitals and health clinics may receive financial assistance from the Department of Health and Human Services (DHHS); schools and universities may receive financial assistance from the Department of Education (DOE); police departments and other law enforcement agencies/organizations may receive financial assistance from the Department of Justice (DOJ). In order to avoid the potential for confusion with such recipient organizations as to their LEP responsibilities, OCR will apply, where appropriate, the Federal agency's LEP guidance that is more specific and/or stringent regarding LEP responsibilities and assistance.

14. Enforcement. OCR will enforce Title VI, and the recipient's responsibility to establish LEP procedures and provide appropriate LEP assistance, consistent with enforcement procedures as provided in Title VI regulations. These procedures include complaint investigations, compliance reviews, efforts to secure voluntary compliance, and technical assistance.

    GSA's Title VI regulations provide that OCR will investigate whenever it receives a complaint, report or other information that alleges or indicates possible noncompliance with Title VI. If the investigation results in a finding of compliance, OCR will inform the recipient in writing of this determination, including the basis for the determination. If the investigation results in a finding of noncompliance, OCR will inform the recipient of the noncompliance through a Letter of Findings that identifies the areas of noncompliance and the steps that must be taken to correct the noncompliance, and will attempt to secure voluntary compliance through informal means. If the matter cannot be resolved informally, the procedure for effecting compliance as described at 41 CFR 101-6.211-2, et seq. will be followed.

15. Technical Assistance. A program of language assistance should provide for effective communication between the recipient and the person with LEP so as to facilitate participation in, and meaningful access to the services and/or benefits provided by the recipient. The key to ensuring meaningful access for LEP persons is effective communication.

    OCR is available to provide assistance to recipients seeking to ensure that they operate an effective language assistance program. In addition, during its investigative process, OCR is available to provide technical assistance to enable recipients to come into voluntary compliance. OCR may be reached at 202-501-0767 or toll free 1-800-662- 6376, or by mail at General Services Administration, Office of Civil Rights, Title VI, 1800 F Street NW., Suite 5127, Washington, DC, 20405, for further assistance. Arrangements to receive this policy guidance in alternative format may be made by contacting OCR.

    [FR Doc. 02-4013Filed2-19-02; 8:45 am]

    BILLING CODE 6820-34-P