Guidance to Environmental Protection Agency Financial Assistance
Recipients Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons
[Federal Register: June 25, 2004 (Volume 69, Number 122)]
[Notices]
[Page 35602-35613]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jn04-79]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7776-6]
Guidance to Environmental Protection Agency Financial Assistance
Recipients Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons
AGENCY: Environmental Protection Agency (EPA).
ACTION: Policy guidance.
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SUMMARY: The U.S. Environmental Protection Agency is publishing for
public comment proposed policy Guidance to Environmental Protection
Agency Financial Assistance Recipients Regarding Title VI Prohibition
Against
[[Page 35603]]
National Origin Discrimination Affecting Limited English Proficient
Persons. The proposed guidance suggests a general framework that EPA-
assisted programs and activities may use to provide meaningful access
to LEP persons. The guidance is proposed in accordance with Executive
Order 13166--Improving Access to Services for Persons with Limited
English Proficiency and guidance issued by the U.S. Department of
Justice.
DATES: This Guidance is effective immediately. Comments must be
submitted on or before 30 days from the date of this publication in the
Federal Register. EPA will review all timely comments and will
determine if modifications to the Guidance are necessary.
ADDRESSES: Written comments on the guidance document should be mailed
to LEP Guidance, Office of Civil Rights (MC 1201A), U.S. EPA,
Washington, DC 20460, or submitted to the following e-mail address:
civilrights@epa.gov. Please include your name and address, and
optionally, your affiliation.
FOR FURTHER INFORMATION CONTACT: Helena Wooden-Aguilar, U.S.
Environmental Protection Agency, Office of Civil Rights (1201A), 1200
Pennsylvania Ave., NW., Washington, DC, 20460-1000. Telephone 202-343-
9681.
SUPPLEMENTARY INFORMATION: Pursuant to Executive Order 13166, entitled
``Improving Access to Services for Persons with Limited English
Proficiency,'' issued on August 11, 2000 \1\ (see 65 FR 50121 (August
16, 2000), 67 FR 41455 (June 18, 2002)), Memorandum from Ralph F. Boyd,
Jr., to Heads of Federal Agencies, General Counsels, and Civil Rights
Directors regarding Executive Order 13166 (July 8, 2002), each Federal
agency is directed to examine the services it provides, and then
identify, develop, and implement a system by which LEP persons can
meaningfully access those services consistent with, and without unduly
burdening, the fundamental mission of the agency. In addition,
Executive Order 13166 directs each Federal agency to issue guidance
pursuant to Title VI of the Civil Rights Act of 1964 \2\ to ensure that
recipients of Federal financial assistance take reasonable steps to
provide meaningful access to their programs and activities by LEP
persons.\3\ Executive Order 13166 directs that such guidance be
consistent with guidance published contemporaneously in the Federal
Register by DOJ, which ``set[s]
forth general principles for agencies
to apply in developing guidelines for services to individuals with
limited English proficiency.'' \4\
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\1\ 65 FR 50121 (August 16, 2000).
\2\ 42 U.S.C. 2000d-7.
\3\ Executive Order 13166 states that the agency-specific
guidance documents must ``take into account the types of services
provided by recipients, the individuals served by recipients, and
other factors set forth in the [Department of Justice]
LEP
Guidance.''
\4\ Enforcement of Title VI of the Civil Rights Act of 1964--
National Origin Discrimination Against Persons With Limited English
Proficiency; Policy Guidance, 65 FR 50123 (August. 16, 2000).
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In accordance with EPA's Title VI regulations, the term recipient
is defined as ``any state or its political subdivision, any
instrumentality of a state or its political subdivision, any public or
private agency, institution, organization, other entity, or any person
to which Federal financial assistance is extended directly or through
another recipient, including any successor, assignee, or transferee of
a recipient, but excluding the ultimate beneficiary of the
assistance.'' \5\ Additionally, EPA defines assistance as, ``any grant
or cooperative agreement, loan, contract (other than a procurement
contract or a contract of insurance or guaranty) or any other
arrangement by which EPA provides or otherwise makes available
assistance in the form of: Funds; Services of personnel; or, Real or
personal property or any interest in or use of such property,
including: Transfers or leases of such property for less than fair
market value or for reduced consideration; and Proceeds from a
subsequent transfer or lease of such property if EPA's share of its
fair market value is not returned to EPA.'' \6\
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\5\ 40 CFR 7.25.
\6\ Id.
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When entities apply for EPA financial assistance, they submit an
assurance with their application stating that they will comply with the
requirements of Title VI and EPA's implementing regulations. Persons,
or their authorized representatives, who believe that they have been
discriminated against by EPA recipients in violation of Title VI and
EPA's implementing regulations may file written complaints with the
EPA.\7\ Under certain circumstances, the failure to assure that people
who are not proficient in English can have meaningful access to an EPA
financial assistance recipient's programs and activities may constitute
national origin discrimination prohibited by Title VI and EPA's
implementing regulations.
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\7\ 40 CFR 7.120.
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The purpose of this LEP Guidance is to assist recipients in
complying with Title VI and EPA's implementing regulations that
prohibit discrimination against persons based on their national origin,
and to provide LEP persons meaningful access to EPA recipients'
programs or activities. Likewise, this Guidance describes steps that
EPA encourages its recipients to provide to Limited English Proficient
persons to ensure meaningful access to recipients's programs and
activities. The LEP Guidance is consistent with the goals set forth in
Executive Order 13166, DOJ's final LEP guidance \8\, and with the DOJ
policy guidance document entitled ``Enforcement of Title VI of the
Civil Rights Act of 1964--National Origin Discrimination Against
Persons with Limited English Proficiency.'' \9\
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\8\ 67 FR 41455 (June 18, 2002).
\9\ 65 FR 50123 (August 16, 2000).
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During the development of this guidance document, EPA has ensured,
to the extent possible under the time frame established by Executive
Order 13166, that stakeholders, such as LEP persons and their
representative organizations, recipients, and other appropriate
individuals or entities, have had an adequate opportunity to provide
input into this guidance document. To ensure stakeholder involvement in
the development of this guidance, EPA has consulted with affected
groups (both community organizations and recipients, amongst others)
and has solicited comments on earlier versions of this document from a
wide range of stakeholders.
On October 26, 2001, DOJ issued a memorandum to Federal agencies on
Executive Order 13166 that clarified requirements for complying with
Executive Order 13166, directed those agencies that had not yet
published guidance documents to submit agency-specific guidance to DOJ
for approval,\10\ and stated that the guidance did not create any new
statutory or regulatory obligations for recipients. Rather, it only
clarifies existing Title VI responsibilities by identifying the steps
that recipients of Federal financial assistance can take to avoid
administering their programs in a way that results in discrimination on
the basis of national origin in violation of Title VI and EPA's
implementing regulations. In addition to the October memorandum, DOJ
issued a July 2002 memorandum asking federal agencies for their
continued assistance in implementing Executive Order 13166.\11\
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\10\ Memorandum from the Department of Justice, to the Heads of
Departments and Agencies, General Counsels, and Civil Rights
Directors (October 26, 2001) (on file with author).
\11\ Memorandum from the Department of Justice, to the Heads of
Federal Agencies, General Counsels, and Civil Rights Directors (July
8, 2002) (on file with author).
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[[Page 35604]]
DOJ's initial guidance for recipients was published January 16,
2001.\12\ On January 18, 2002, DOJ's initial guidance for recipients
was republished for additional comment.\13\ Based on public comments
filed in response to the January republication, DOJ published a revised
draft guidance for public comment on April 18, 2002.\14\ After taking
into account additional comments, DOJ issued its final guidance on June
18, 2002.\15\ On March 14, 2002, the Office of Management and Budget
(OMB) issued a Report to Congress titled ``Assessment of the Total
Benefits and Costs of Implementing Executive Order 13166: Improving
Access to Services for Persons with Limited English Proficiency.''
Among other things, the Report recommended the adoption of uniform
guidance across all Federal agencies, with flexibility to permit
tailoring to each agency's specific recipients. Consistent with this
OMB recommendation, DOJ published LEP Guidance for DOJ recipients which
was drafted and organized to also function as a model for similar
guidance documents to other Federal grant agencies. This proposed EPA
LEP Guidance is consistent with DOJ's Final LEP Guidance.
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\12\ 66 FR 3834 (January 16, 2001).
\13\ 67 FR 2671 (January 18, 2002).
\14\ 67 FR 19237 (April 18, 2002).
\15\ 67 FR 41455 (June 18, 2002).
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Because this guidance adopts to the federal government-wide
standards and framework detailed in the DOJ LEP Guidance, EPA
specifically solicits comments on the nature, scope, and
appropriateness of the EPA specific examples set out in this guidance
which explain and/or highlight how those federal government-wide
compliance standards are applicable to recipients of federal financial
assistance from EPA.
Pursuant to the Administrative Procedures Act, 5 U.S.C. 553(b)(A),
interpretive rules, general statements of policy, and rules of agency
organization, procedure, or practice are exempt from notice and
comment. Because this policy guidance is a general statement of policy
without the force and effect of law, it falls within this exception and
prior notice and opportunity for public comment is not required.
According to DOJ's October 26, 2001 memorandum, Federal agencies
should consider whether the action they propose to take to implement
Executive Order 13166 and Title VI is subject to Executive Order 12866
(Regulatory Review and Planning, September 30, 1993). Executive Order
12866 requires that agencies submit to the Office of Management and
Budget for review any ``significant regulatory actions'' the agency
wishes to take.\16\ A significant regulatory action is described as a
regulatory action that is likely to have an annual effect on the
economy of $100 million or more. Executive Order 13166 and this
guidance merely clarify existing Title VI responsibilities and help
recipients to understand their existing obligations. Hence, they do not
create any new binding requirements.
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\16\ Executive Order 12866 section 6(a).
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I. Introduction
Most individuals living in the United States read, write, speak and
understand English. There are many individuals, however, for whom
English is not their primary language. For instance, based on the 2000
census, over 26 million individuals speak Spanish and almost 7 million
individuals speak an Asian or Pacific Island language at home. If these
individuals have a limited ability to read, write, speak, or understand
English, they are limited English proficient, or ``LEP.'' Based on the
2000 census, 28% of all Spanish-speakers, 28% of all Chinese-speakers,
and 32% of all Vietnamese-speakers reported that they spoke English
``not well'' or ``not at all'' in response to the 2000 census.\17\
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\17\ United States Census (2000), available at
http://www.census.gov/prod/2003pubs/c2kbr-29.pdf.
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Language for LEP individuals can be a barrier to accessing
important benefits or services, understanding and exercising important
rights, complying with applicable responsibilities, or understanding
other information provided by a recipient's programs and activities.
The Federal Government is committed to improving the accessibility of
programs and activities to eligible LEP persons, a goal that reinforces
its equally important commitment to promoting programs and activities
designed to help individuals learn English. Recipients should not
overlook the long-term positive impacts of incorporating or offering
English as a Second Language (ESL) programs in parallel with language
assistance services. ESL courses can serve as an important adjunct to a
proper LEP plan. However, the fact that ESL classes are made available
does not obviate the statutory and regulatory requirement to provide
meaningful access to a recipient's programs or activities for those who
are not yet English proficient. Recipients of Federal financial
assistance have an obligation to reduce language barriers that can
preclude meaningful access by LEP persons to important government
services.\18\
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\18\ EPA recognizes that many recipients had language assistance
programs in place prior to the issuance of Executive Order 13166.
This policy guidance provides a uniform framework for a recipient to
integrate, formalize, and assess the continued vitality of these
existing efforts based on the nature of its program or activity, the
current needs of the LEP populations it encounters, and its prior
experience in providing language services in the community it
serves.
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In certain circumstances, failure to ensure that LEP persons can
effectively participate in or benefit from Federally assisted programs
and activities may violate the prohibition under Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d to 2000d-7, and Title VI
regulations against national origin discrimination. The purpose of this
policy guidance is to assist recipients in fulfilling their
responsibilities to provide meaningful access to LEP persons under
existing law. This policy guidance clarifies existing legal
requirements for LEP persons by providing a description of the factors
recipients should consider in fulfilling their responsibilities to LEP
persons.\19\ These are criteria the U.S. Environmental Protection
Agency expects to use in evaluating whether recipients are in
compliance with Title VI and Title VI implementing regulations.
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\19\ The policy guidance is not a regulation but rather a guide.
Title VI and its implementing regulations require that recipients
take responsible steps to ensure meaningful access by LEP persons.
This guidance provides an analytical framework that recipients may
use to determine how best to comply with statutory and regulatory
obligations to provide meaningful access to the benefits, services,
information, and other important portions of their programs and
activities for individuals who are limited English proficient.
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As with most government initiatives, several principles are
balanced. While this Guidance discusses that balance in some detail, it
is important to note the basic principles behind that balance. First,
we must ensure that Federally-assisted programs aimed at the American
public do not leave some behind simply because they face challenges
communicating in English. This is of particular importance because, in
many cases, LEP individuals form a substantial portion of those
encountered in Federally-assisted programs. Second, we must achieve
this goal while finding constructive methods to reduce the costs of LEP
requirements on small businesses, small local governments, or small
non-profits that receive Federal financial assistance.
There are many productive steps that the Federal government, either
collectively or as individual grant agencies, can take to help
recipients reduce the costs of language services without sacrificing
meaningful access for LEP persons. Without these steps, certain smaller
grantees may well
[[Page 35605]]
choose not to participate in Federally assisted programs, threatening
the critical functions that the programs strive to provide. To that
end, EPA, in conjunction with DOJ, plans to continue to provide
assistance and guidance in this important area. In addition, EPA plans
to share information, such as, model plans, examples of best practices,
and cost-saving approaches, with recipients, state, and local
administrative agencies, and LEP persons. A Federal interagency working
group on LEP has developed a Web site, http://www.lep.gov,
to assist in disseminating this information to recipients, Federal
agencies, and the communities being served.
Many commentators have noted that some have interpreted the case of
Alexander v. Sandoval, 532 U.S. 275 (2001), as impliedly striking down
the disparate impact prohibition in the regulations promulgated under
Title VI that form part of the basis for Executive Order 13166.
Consistent with the position of DOJ detailed below, EPA takes the
position that this is not the case, and will continue to do so.
Accordingly, EPA will strive to ensure that assisted programs and
activities work in a way that is effective for all eligible
beneficiaries, including those with limited English proficiency.
II. Legal Authority
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d, provides that no person shall ``on the ground of race, color, or
national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.'' Section 602
authorizes and directs Federal agencies that are empowered to extend
Federal financial assistance to any program or activity ``to effectuate
the provisions of [section 601]
* * * by issuing rules, regulations, or
orders of general applicability.'' \20\
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\20\ 42 U.S.C. 2000d-1.
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EPA implementing regulations provide that recipients ``shall not
use criteria or methods of administering its program which have the
effect of subjecting individuals to discrimination because of their
race, color, 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.`` \21\
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\21\ EPA's implementing regulations also prohibit discrimination
based on sex and disability. 40 CFR 7.35(b).
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The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974),
interpreted regulations promulgated by the former Department of Health,
Education, and Welfare, including a regulation similar to that of EPA,
to hold that Title VI prohibits conduct that has a disproportionate
effect on LEP persons because such conduct constitutes national origin
discrimination. In Lau, a San Francisco school district that had a
significant number of non-English speaking students of Chinese origin
was required to take reasonable steps to provide them with a meaningful
opportunity to participate in Federally funded educational programs.
On August 11, 2000, Executive Order 13166 was issued. ``Improving
Access to Services for Persons with Limited English Proficiency,'' 65
FR 50121 (August 16, 2000). Under that order, every Federal agency that
provides financial assistance to non-Federal entities must publish
guidance on how their recipients can provide meaningful access to LEP
persons and thus comply with Title VI regulations forbidding funding
recipients from ``restrict[ing]
a person in any way in the enjoyment of
any advantage or privilege enjoyed by others receiving any service,
aid, or other benefit provided by the program'' \22\ or from
``utiliz[ing]
criteria or methods of administering its programs which
have the effect of subjecting individuals to discrimination because of
their race, color, or national origin, or have the effect of defeating
or substantially impairing accomplishment of the objectives of the
program as respects individuals of a particular race, color, or
national origin.'' \23\
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\22\ 40 CFR 7.35(a)(3).
\23\ 40 CFR 7.35(b).
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On that same day, DOJ issued a general guidance document addressed
to ``Executive Agency Civil Rights Officers'' setting forth general
principles for agencies to apply in developing guidance documents for
recipients pursuant to the Executive Order. ``Enforcement of Title VI
of the Civil Rights Act of 1964--National Origin Discrimination Against
Persons With Limited English Proficiency,'' 65 FR 50123 (August 16,
2000) (``DOJ LEP Guidance''). The Executive Order charges DOJ with
responsibility for providing LEP Guidance to other Federal agencies and
for ensuring consistency among each agency-specific guidance.
Consistency among Departments of the Federal Government is particularly
important. Inconsistency or contradictory guidance could confuse
recipients of federal funds and needlessly increase costs without
rendering the meaningful access for LEP persons that this Guidance is
designed to address.
Subsequently, Federal agencies raised questions regarding the
requirements of the Executive Order, especially in light of the Supreme
Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001). On
October 26, 2001, Ralph F. Boyd, Jr., Assistant Attorney General for
the Civil Rights Division, issued a memorandum for ``Heads of
Departments and Agencies, General Counsels and Civil Rights
Directors.'' This memorandum clarified and reaffirmed the DOJ LEP
Guidance in light of Sandoval.\24\ The Assistant Attorney General
stated that because Sandoval did not invalidate any Title VI
regulations that proscribe conduct that has a disparate impact on
covered groups--the types of regulations that form the legal basis for
the part of Executive Order 13166 that applies to Federally assisted
programs and activities--the Executive Order remains in force. This
guidance document is published pursuant to Title VI and in accordance
with Executive Order 13166 and Assistant Attorney General Boyd's
October 26, 2001 clarifying memorandum.
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\24\ The memorandum noted that some commentators have
interpreted Sandoval as impliedly striking down the disparate-impact
regulations promulgated under Title VI that form the basis for the
part of Executive Order 13166 that applies to Federally assisted
programs and activities. See, e.g., Sandoval, 532 U.S. at 286, 286
n.6 (``[W]e assume for purposes of this decision that section 602
confers the authority to promulgate disparate impact regulations; *
* * We cannot help observing, however, how strange it is to say that
disparate-impact regulations are `inspired by, at the service of,
and inseparably intertwined with' section 601 * * * when section 601
permits the very behavior that the regulations forbid.''). The
memorandum, however, made clear that DOJ disagreed with the
commentators' interpretation. Sandoval holds principally that there
is no private right of action to enforce Title VI disparate-impact
regulations. It did not alter the validity of those regulations or
Executive Order 13166 or otherwise limit the authority and
responsibility of Federal grant agencies to enforce their own
implementing regulations.
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III. Who Is Covered?
EPA interprets its Title VI regulations to require all recipients
of EPA assistance to provide meaningful access to LEP persons. A
recipient is defined as ``any state or its political subdivision, any
instrumentality of a state or its 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, including any successor, assignee, or
transferee of a recipient, but excluding the ultimate beneficiary of
the
[[Page 35606]]
assistance.'' \25\ EPA assistance is defined ``as any grant or
cooperative agreement, loan, contract (other than a procurement
contract or a contract of insurance or guaranty), or any other
arrangement by which EPA provides or otherwise makes available
assistance in the form of: Funds; Services of personnel; or Real or
personal property or any interest in or use of such property,
including: Transfers or leases of such property for less than fair
market value or for reduced consideration; and Proceeds from a
subsequent transfer or lease of such property if EPA's share of its
fair market value is not returned to EPA.'' \26\ Recipients of EPA
assistance include, for example:
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\25\ 40 CFR 7.25.
\26\ 40 CFR 7.25.
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? Nonprofit agencies or community groups that receive
technical assistance grants to interpret and disseminate information
related to Superfund hazardous waste sites.
? State and local government agencies that receive grants to
implement effective environmental management programs.
Subrecipients of EPA recipients (but not the ultimate beneficiary
of the assistance) likewise are covered. Coverage extends to a
recipient's entire program or activity, i.e., to all parts of a
recipient's operations. This is true even if only one part of the
recipient receives the Federal assistance.\27\
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\27\ See 42 U.S.C. 2000d-4a. However, if a Federal agency were
to decide to terminate or refuse to grant or continue assistance
based on noncompliance with Title VI or its regulations, the
termination or refusal will be limited in its effect to the
particular program, or part thereof in which such noncompliance is
found. 42 U.S.C. 2000d-1.
Example: EPA provides assistance to a state department of
environment to identify and clean up hazardous waste sites. All of
the operations of the entire state environmental department and not
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just the hazardous waste programs are covered.
Finally, some recipients operate in jurisdictions in which English
has been declared the official language. Nonetheless, these recipients
continue to be subject to Federal non-discrimination requirements,
including those applicable to the provision of Federally assisted
services to persons with limited English proficiency.
IV. Who Is a Limited English Proficient Individual?
Individuals who do not speak English as their primary language and
who have a limited ability to read, write, speak, or understand English
can be Limited English Proficient, or ``LEP,''and may be entitled to
language assistance with respect to a particular type of service,
benefit, or encounter.
Examples of populations likely to include LEP persons who are
encountered and/or served by EPA recipients and should be considered
when planning language services include, but are not limited to:
? Persons who live in communities in close proximity to a
plant or facility that is permitted or regulated by an EPA recipient.
? Persons subject to, or affected by environmental
protection, clean-up, and enforcement actions of an EPA recipient .
? Persons who seek to enforce or exercise rights under Title
VI or environmental statutes and regulations.
V. How Does a Recipient Determine the Extent of Its Obligation To
Provide LEP Services?
Recipients are required to take reasonable steps to ensure
meaningful access to their programs and activities by LEP persons.
While designed to be flexible and fact-dependent, the starting point is
an individualized assessment that balances the following four factors:
(1) The number or proportion of LEP persons eligible to be served or
likely to be encountered by the program or grantee; (2) the frequency
with which LEP individuals come in contact with the program; (3) the
nature and importance of the program, activity, or service provided by
the program to people's lives; and (4) the resources available to the
grantee/recipient and costs. The intent of this guidance is to suggest
a balance that ensures meaningful access by LEP persons to critical
services while not imposing undue burdens on small businesses, small
local governments, or small nonprofits.
After applying the above four-factor analysis, a recipient may
conclude that different language assistance measures are sufficient for
the different types of programs or activities in which it engages. For
instance, some of a recipient's activities will be more important than
others and/or have greater impact on or contact with LEP persons, and
thus may require more in the way of language assistance. The
flexibility that recipients have in addressing the needs of the LEP
populations they serve does not diminish, and should not be used to
minimize, the obligation that those needs be addressed. EPA recipients
should apply the following four factors to the various kinds of
contacts that they have with the public to assess language needs and
decide what reasonable steps they should take to ensure meaningful
access for LEP persons.
(1) The Number or Proportion of LEP Persons Served or Encountered in
the Eligible Service Population
One factor in determining what language services recipients should
provide is the number or proportion of LEP persons from a particular
language group served or encountered in the eligible service
population. The greater the number or proportion of these LEP persons,
the more likely language services are needed. This population will be
program-specific, and includes persons who are in the geographic area
that has been approved by a Federal grant agency as the recipient's
service area. However, where for instance, a recipient provides
services through local district offices, the appropriate service area
is most likely the district, and not the jurisdiction or area served by
the department. Where no service area has previously been approved, the
relevant service area may be that which is approved by state or local
authorities or designated by the recipient itself, provided that these
designations do not themselves discriminatorily exclude certain
populations. When considering the number or proportion of LEP
individuals in a service area, recipients should consider LEP parent(s)
when their English-proficient or LEP minor children and dependents
encounter proposed action by an environmental agency in their
community.
Recipients should first examine their prior experiences with LEP
encounters and determine the breadth and scope of language services
that were needed. In conducting this analysis, it is important to
include language minority populations that are eligible for their
programs or activities but may be underserved because of existing
language barriers. Other data should be consulted to refine or validate
a recipient's prior experience, including the latest census data for
the area served, data from school systems and from community
organizations, and data from state and local governments.\28\ Community
agencies, school systems, religious organizations, legal aid entities,
and others can often assist in identifying populations for whom
outreach is needed and who would benefit from the recipients' programs
[[Page 35607]]
and activities were language services provided.
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\28\ The focus of the analysis is on lack of English
proficiency, not the ability to speak more than one language. Note
that demographic data may indicate the most frequently spoken
languages other than English and the percentage of people who speak
these languages. When using demographic data, it is important to
focus in on the languages spoken by those who are not proficient in
English.
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(2) The Frequency With Which LEP Individuals Come in Contact With the
Program
Recipients should assess, as accurately as possible, the frequency
with which they have or should have contact with LEP individuals from
different language groups seeking assistance. The more frequent the
contact with a particular language group, the more likely that enhanced
language services in that language are needed. The steps that are
reasonable for a recipient that serves an LEP person on a one-time
basis will be very different than those expected from a recipient that
serves LEP persons daily. It is also advisable to consider the
frequency of different types of language contacts. For example,
frequent contacts with Spanish-speaking people who are LEP may require
certain assistance in Spanish. Less frequent contact with different
language groups may suggest a different and less intensified solution.
If an LEP individual accesses a program or service on a daily basis, a
recipient has greater duties than if the same individual's program or
activity contact is unpredictable or infrequent. But even recipients
that serve LEP persons on an unpredictable or infrequent basis should
use this balancing analysis to determine what to do if an LEP
individual seeks services under the program in question. This plan need
not be intricate. It may be as simple as being prepared to use one of
the commercially-available telephonic interpretation services to obtain
immediate interpreter services. In applying this standard, recipients
should take care to consider whether appropriate outreach to LEP
persons could increase the frequency of contact with LEP language
groups.
(3) The Nature and Importance of the Program, Activity, or Service
Provided by the Program
The more important the activity, information, service, or program,
or the greater the possible consequences of the contact to the LEP
individuals, the more likely language services are needed. The
obligations to communicate information to a person who may be adversely
impacted by an immediate water source contamination or to sudden
release of airborne toxic chemicals differ from those to provide
information on efforts to increase recycling. A recipient needs to
determine whether denial or delay of access to services or information
could have serious or even life-threatening implications for the LEP
individual. Decisions by a Federal, State, or local entity to make an
activity, warning or notice compulsory, such as particular educational
programs on lead-based paint and children, can serve as strong evidence
of the program's importance.
(4) The Resources Available to the Recipient and Costs
A recipient's level of resources and the costs that would be
imposed on it may have an impact on the nature of the steps it should
take. Smaller recipients with more limited budgets are not expected to
provide the same level of language services as larger recipients with
larger budgets. In addition, ``reasonable steps'' may cease to be
reasonable where the costs imposed substantially exceed the benefits.
Resource and cost issues, however, can often be reduced by
technological advances; the sharing of language assistance materials
and services among and between recipients, advocacy groups, and Federal
grant agencies; and reasonable business practices. Where appropriate,
training bilingual staff to act as interpreters and translators,
information sharing through industry groups, telephonic and video
conferencing interpretation services, pooling resources and
standardizing documents to reduce translation needs, using qualified
translators and interpreters to ensure that documents need not be
``fixed'' later and that inaccurate interpretations do not cause delay
or other costs, centralizing interpreter and translator services to
achieve economies of scale, or the formalized use of qualified
community volunteers, for example, may help reduce costs.\29\
Recipients should carefully explore the most cost-effective means of
delivering competent and accurate language services before limiting
services due to resource concerns. Large entities and those entities
serving a significant number or proportion of LEP persons should ensure
that their resource limitations are well-substantiated before using
this factor as a reason to limit language assistance. Such recipients
may find it useful to be able to articulate, through documentation or
in some other reasonable manner, their process for determining that
language services would be limited based on resources or costs.
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\29\ Small recipients with limited resources may find that
entering into a bulk telephonic interpretation service contract will
prove cost effective.
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This four-factor analysis necessarily implicates the ``mix'' of LEP
services required. Recipients have two main ways to provide language
services: Oral interpretation either in person or via telephone
interpretation service (hereinafter ``interpretation'') and written
translation (hereinafter ``translation''). Interpretation can range
from either on-site interpreters for critical services provided to a
high volume of LEP persons to access through commercially-available
telephonic interpretation services. Written translation, likewise, can
range from translation of an entire document to translation of a short
description of the document. In some cases, language services should be
made available on an expedited basis while in others the LEP individual
may be referred to another office of the recipient for language
assistance.
The correct mix should be based on what is both necessary and
reasonable in light of the four-factor analysis. For instance, an
emergency response action in a largely Hispanic neighborhood may need
immediate oral interpreters available, so recipients whose programs
cover such activity should give serious consideration to hiring some
bilingual staff. In contrast, there may be circumstances where the
importance and nature of the activity and number or proportion and
frequency of contact with LEP persons may be low and the costs and
resources needed to provide language services may be high--such as in
the case of a voluntary general public tour of a water treatment
plant--in which pre-arranged language services for the particular
service may not be necessary. Regardless of the type of language
service provided, quality and accuracy of those services can be
critical in order to avoid serious consequences to the LEP person and
to the recipient. Recipients have substantial flexibility in
determining the appropriate mix.
VI. Selecting Language Assistance Services
Recipients have two main ways to provide language services: oral
and written language services. Quality and accuracy of the language
service is critical in order to avoid serious consequences to the LEP
person and to the recipient.
A. Oral Language Services (Interpretation). Interpretation is the
act of listening to something in one language (source language) and
orally translating it into another language (target language). Where
interpretation is needed and is reasonable, recipients should consider
some or all of the following options for providing competent
interpreters in a timely manner:
Competence of Interpreters. When providing oral assistance,
recipients
[[Page 35608]]
should ensure competency of the language service provider, no matter
which of the strategies outlined below are used. Competency requires
more than self-identification as bilingual. Some bilingual staff and
community volunteers, for instance, may be able to communicate
effectively in a different language when communicating information
directly in that language, but not be competent to interpret in and out
of English. Likewise, they may not be able to do written translations.
Competency to interpret, however, does not necessarily mean formal
certification as an interpreter, although certification is helpful.
When using interpreters, recipients should ensure that they:
? Demonstrate proficiency in and ability to communicate
information accurately in both English and in the other language and
identify and employ the appropriate mode of interpreting (e.g.,
consecutive, simultaneous, summarization, or sight translation);
? Have knowledge in both languages of any specialized terms
or concepts peculiar to the entity's program or activity and of any
particularized vocabulary and phraseology used by the LEP person; \30\
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\30\ Many languages have ``regionalisms,'' or differences in
usage. For instance, a word that may be understood to mean something
in Spanish for someone from Cuba may not be so understood by someone
from Mexico. In addition, because there may be languages that do not
have an appropriate direct interpretation of some courtroom or legal
terms and the interpreter should be so aware and be able to provide
the most appropriate interpretation. The interpreter should make the
recipient aware of the issue and the interpreter and recipient can
then work to develop a consistent and appropriate set of
descriptions of these terms in that language that can be used again,
when appropriate.
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? Understand and follow confidentiality and impartiality
rules to the same extent the recipient employee for whom they are
interpreting and/or to the extent their position requires;
? Understand and adhere to their role as interpreters
without deviating into a role as engineer, legal advisor, or other
roles (particularly in administrative or public hearings).
Some activities of recipients, such as enforcement bureaus or
administrative courts, may have additional self-imposed requirements
for interpreters. Where individual rights or potential liability for
noncompliance with environmental requirements depend on precise,
complete, and accurate interpretation or translations, the use of
certified interpreters is strongly encouraged.\31\ Where such
proceedings are lengthy, the interpreter will likely need breaks and
team interpreting may be appropriate to ensure accuracy and to prevent
errors caused by mental fatigue of interpreters.
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\31\ For those languages in which no formal accreditation or
certification currently exists, agencies should consider a formal
process for establishing the credentials of the interpreter.
Additionally, for those languages in which no formal accreditation
currently exists, a particular level of membership in a professional
translation association can provide some indicator of
professionalism.
---------------------------------------------------------------------------
While quality and accuracy of language services is critical, it can
vary with the context. For example, the quality and accuracy of
language services during an emergency response action, for example,
must be extraordinarily high, while the quality and accuracy of
language services in understanding ultraviolet. Indexes need not meet
the same exacting standards.
Finally, when interpretation is needed and is reasonable, it should
be provided in a timely manner. While there is no single definition for
``timely'' applicable to all types of interactions at all times by all
types of recipients, one clear guide is that the language assistance
should be provided at a time and place that avoids the effective denial
of the service, benefit, or right at issue or the imposition of an
undue burden on or delay in important rights, benefits, or services to
the LEP person. For example, when the timeliness of services is
important, such as with certain activities of EPA recipients providing
health and safety services, and when important legal rights are at
issue, a recipient would likely not be providing meaningful access if
it had one bilingual staffer available one day a week to provide the
service. Such conduct would likely result in delays for LEP persons
that would be significantly greater than those for English proficient
persons. Conversely, where access to or exercise of a service, benefit,
or right is not effectively precluded by a reasonable delay, language
assistance can likely be delayed for a reasonable period.
Hiring Bilingual Staff. When particular languages are encountered
often, hiring bilingual staff offers one of the best, and often most
economical, options. Recipients can, for example, fill public contact
positions, program directors, emergency response teams or community
involvement coordinators, with staff who are bilingual and competent to
communicate directly with LEP persons in their language. If bilingual
staff are also used to interpret between English speakers and LEP
persons, or to orally interpret written documents from English into
another language, they should be competent in the skill of
interpreting. Being bilingual does not necessarily mean that a person
has the ability to interpret. In addition, there may be times when the
role of the bilingual employee may conflict with the role of an
interpreter (for instance, a bilingual law clerk would probably not be
able to perform effectively the role of an environmental appeals or
administrative hearing interpreter and law clerk at the same time, even
if the law clerk were a qualified interpreter). Effective management
strategies, including any appropriate adjustments in assignments and
protocols for using bilingual staff, can ensure that bilingual staff
are fully and appropriately utilized. When bilingual staff cannot meet
all of the language service obligations of the recipient, the recipient
should turn to other options.
Hiring Staff Interpreters. Hiring interpreters may be most helpful
where there is a frequent need for interpreting services in one or more
languages. Depending on the facts, sometimes it may be necessary and
reasonable to provide on-site interpreters to provide accurate and
meaningful communication with an LEP person.
Contracting for Interpreters. Contract interpreters may be a cost-
effective option when there is no regular need for a particular
language skill. In addition to commercial and other private providers,
many community-based organizations and mutual assistance associations
provide interpretation services for particular languages. Contracting
with and providing training regarding the recipient's programs and
processes to these organizations can be a cost-effective option for
providing language services to LEP persons from those language groups.
Using Telephone Interpreter Lines. Telephone interpreter service
lines often offer speedy interpreting assistance in many different
languages. They may be particularly appropriate where the mode of
communicating with an English proficient person would also be over the
phone. Although telephonic interpretation services are useful in many
situations, it is important to ensure that, when using such services,
the interpreters used are competent to interpret any technical or legal
terms specific to a particular program that may be important parts of
the conversation. Nuances in language and non-verbal communication can
often assist an interpreter and cannot be recognized over the phone.
Video teleconferencing may sometimes help to resolve this issue where
necessary. In addition, where documents are being discussed, it is
important to give telephonic interpreters adequate opportunity to
review the document prior to the
[[Page 35609]]
discussion and any logistical problems should be addressed.
Using Community Volunteers. In addition to consideration of
bilingual staff, staff interpreters, or contract interpreters (either
in-person or by telephone) as options to ensure meaningful access by
LEP persons, use of recipient-coordinated community volunteers, working
with, for instance, community-based organizations may provide a cost-
effective supplemental language assistance strategy under appropriate
circumstances. They may be particularly useful in providing language
access for a recipient's less critical programs and activities. To the
extent the recipient relies on community volunteers, it is often best
to use volunteers who are trained in the information or services of the
program and can communicate directly with LEP persons in their
language. Just as with all interpreters, community volunteers used to
interpret between English speakers and LEP persons, or to orally
translate documents, should be competent in the skill of interpreting
and knowledgeable about applicable confidentiality and impartiality
rules. Recipients should consider formal arrangements with community-
based organizations that provide volunteers to address these concerns
and to help ensure that services are available more regularly.
Use of Family Members or Friends as Interpreters. Although
recipients should not plan to rely on an LEP person's family members,
friends, or other informal interpreters to provide meaningful access to
important programs and activities, where LEP persons so desire, they
should be permitted to use, at their own expense, an interpreter of
their own choosing (whether a professional interpreter, family member,
or friend) in place of or as a supplement to the free language services
expressly offered by the recipient. LEP persons may feel more
comfortable when a trusted family member or friend acts as an
interpreter. In addition, in exigent circumstances that are not
reasonably foreseeable, temporary use of interpreters not provided by
the recipient may be necessary. However, with proper planning and
implementation, recipients should be able to avoid most such
situations.
Recipients, however, should take special care to ensure that
family, legal guardians, caretakers, and other informal interpreters
are appropriate in light of the circumstances and subject matter of the
program, service or activity, including protection of the recipient's
own administrative or enforcement interest in accurate interpretation.
In many circumstances, family members (especially children) or friends
are not competent to provide quality and accurate interpretations.
Issues of confidentiality, privacy, or conflict of interest may also
arise. LEP individuals may feel uncomfortable revealing or describing
sensitive, confidential, or potentially embarrassing medical, family,
or financial information to a family member, friend, or member of the
local community. In addition, such informal interpreters may have a
personal connection to the LEP person or an undisclosed conflict of
interest. For these reasons, when oral language services are necessary,
recipients should generally offer competent interpreter services free
of cost to the LEP person. For EPA recipient programs and activities,
this could be true in emergency response actions where health, safety,
or access to important benefits and services are at stake, or when
accuracy is important to protect an individual's rights and access to
important services.
One example of such a case would be an administrative investigation
conducted by a municipal environmental control office in response to an
anonymous citizen complaint about illegal environmental discharges in a
residential neighborhood. In such a case, use of family members or
neighbors to interpret for persons alleged to have committed the
discharge or potential witnesses may raise serious issues of
competency, confidentiality, and conflict of interest and is
inappropriate. While issues of competency, confidentiality, and
conflict of interest in the use of family members (especially
children), friends, or neighbors often make their use inappropriate,
the use of these individuals as interpreters may be an appropriate
option where proper application of the four factors would lead to a
conclusion that recipient-provided services are not necessary. An
example of this is a voluntary educational tour of the environmental
quality physical offices (as distinguished from the environmental
enforcement activities it performs) offered to the public. There, the
importance and nature of the activity may be relatively low and
unlikely to implicate issues of confidentiality, conflict of interest,
or the need for accuracy. In addition, the resources needed and costs
of providing language services may be high. In such a setting, an LEP
person's use of family, friends, or others may be appropriate.
If the LEP person voluntarily chooses to provide his or her own
interpreter, a recipient should consider whether a record of that
choice and of the recipient's offer of assistance is appropriate. Where
precise, complete, and accurate interpretations or translations of
information and/or testimony are critical for regulatory enforcement,
adjudicatory, or legal reasons, or where the competency of the LEP
person's interpreter is not established, a recipient might decide to
provide its own, independent interpreter, even if an LEP person wants
to use his or her own interpreter as well. Extra caution should be
exercised when the LEP person chooses to use a minor as the
interpreter. While the LEP person's decision should be respected, there
may be additional issues of competency, confidentiality, or conflict of
interest when the choice involves using children as interpreters. The
recipient should take care to ensure that the LEP person's choice is
voluntary, that the LEP person is aware of the possible problems if the
preferred interpreter is a minor child, and that the LEP person knows
that a competent interpreter could be provided by the recipient at no
cost.
B. Written Language Services (Translation)
Translation is the replacement of a written text from one language
into an equivalent written text in another language.
What Documents Should be Translated? After applying the four-factor
analysis, a recipient may determine that an effective LEP plan for its
particular program or activity includes the translation of vital
written materials into the language of each frequently-encountered LEP
group eligible to be served and/or likely to be affected by the
recipient's program. Such written materials could include, for example:
? Consent and complaint forms
? Intake forms with the potential for important consequences
? Written notices of rights, denial, loss, or decreases in
benefits or services
? Notices of disciplinary action, environmental hazards, or
cease and desist orders.
? Notices advising LEP persons of free language assistance
? Residential Lead-Based Paint Disclosure Program Forms and
Pamphlets
? Consumption Advisories
? Written tests that do not assess English language
competency, but test competency for a particular license, job, or skill
for which knowing English is not required
[[Page 35610]]
? Applications to participate in a recipient's program or
activity or to receive recipient benefits or services.
Whether or not a document (or the information it disseminates or
solicits) is ``vital'' may depend upon the importance of the program,
information, encounter, or service involved, and the consequence to the
LEP person if the information in question is not provided accurately or
in a timely manner. For instance, applications for participation in a
local coalition of environmental stewards may not generally be
considered vital, whereas petitions for enforcement of local
environmental health rules could be considered vital. Where
appropriate, recipients are encouraged to create a plan for
consistently determining, over time and across its various activities,
what documents are ``vital'' to the meaningful access of the LEP
populations they serve.
Classifying a document as vital or non-vital is sometimes
difficult, especially in the case of outreach materials like brochures
or other information on rights and services. Awareness of rights or
services is an important part of ``meaningful access.'' Lack of
awareness that a particular program, right, or service exists may
effectively deny LEP individuals meaningful access. Thus, where a
recipient is engaged in community outreach activities in furtherance of
its activities, it should regularly assess the needs of the populations
frequently encountered or affected by the program or activity to
determine whether certain critical outreach materials should be
translated. Community organizations may be helpful in determining what
outreach materials may be most helpful to translate. In addition, the
recipient should consider whether translations of outreach material may
be made more effective when done in tandem with other outreach methods,
including utilizing the ethnic media, schools, religious, and community
organizations to spread a message.
Sometimes a document includes both vital and non-vital information.
This may be the case when the document is very large or when the target
audience for a document encompasses many different languages. Thus,
vital information may include, for instance, the provision of
information in appropriate languages other than English regarding where
a LEP person might obtain an interpretation or translation of the
document.
Into What Languages Should Documents be Translated? The languages
spoken by the LEP individuals who are eligible to be served or directly
affected by a recipient's programs or activities determine the
languages into which vital documents should be translated. A
distinction should be made, however, between languages that are
frequently encountered by a recipient and less commonly-encountered
languages. Many recipients serve communities in large cities or across
the country. They regularly serve LEP persons who speak dozens of
different languages. To translate all written materials into all of
those languages is unrealistic. Although recent technological advances
have made it easier for recipients to store and share translated
documents, such an undertaking would incur substantial costs and
require substantial resources. Nevertheless, well-substantiated claims
of lack of resources to translate all vital documents into dozens of
languages do not necessarily relieve the recipient of the obligation to
translate those documents into at least several of the more frequently-
encountered languages and to set benchmarks for continued translations
into the remaining languages over time. As a result, the extent of the
recipient's obligation to provide written translations of documents
should be determined by the recipient on a case-by-case basis, looking
at the totality of the circumstances in light of the four-factor
analysis. Because translation is often a one-time expense,
consideration should be given to whether the up-front cost of
translating a document (as opposed to oral interpretation) should be
amortized over the likely life span of the document when applying this
four-factor analysis.
Safe Harbor. Many recipients would like to ensure with greater
certainty that they comply with their obligations to provide written
translations in languages other than English. Paragraphs (a) and (b)
below outline the circumstances that may provide a ``safe harbor'' for
recipients regarding the requirements for translation of written
materials. A ``safe harbor'' means that if a recipient provides written
translations under these circumstances, such action will be considered
strong evidence of compliance with the recipient's written-translation
obligations.
The failure to provide written translations under the circumstances
outlined in paragraphs (a) and (b) does not necessarily mean there is
noncompliance. Rather, they provide a common starting point for
recipients to consider whether and at what point the importance of the
service, benefit, or activity involved; the nature of the information
sought; and the number or proportion of LEP persons served call for
written translations of commonly-used forms into frequently-encountered
languages other than English. Thus, these paragraphs merely provide a
guide for recipients that would like greater certainty of compliance
than can be provided by a fact-intensive, four-factor analysis. Even if
the safe harbors are not used, if written translation of a certain
document(s) would be so burdensome as to defeat the legitimate
objectives of its program, the translation of the written materials is
not necessary. Other ways of providing meaningful access, such as
effective oral interpretation of certain vital documents, might be
acceptable under such circumstances.
Safe Harbor Guides. The following actions will be considered strong
evidence of compliance with the recipient's written-translation
obligations:
(a) The EPA recipient provides written translations of vital
documents for each eligible LEP language group that constitutes five
percent or includes 1,000 members, whichever is less, of the population
of persons eligible to be served or likely to be affected or
encountered. Translation of other documents, if needed, can be provided
orally; or
(b) If there are fewer than 50 persons in a language group that
reaches the five percent trigger in (a), the recipient does not
translate vital written materials but provides written notice in the
primary language of the LEP language group of the right to receive
competent oral interpretation of those written materials, free of cost.
These safe harbor provisions apply to the translation of written
documents only. They do not affect the requirement to provide
meaningful access to LEP individuals through competent oral
interpreters where oral language services are needed and are
reasonable. For example, community coordinators should, where
appropriate, ensure that permits or environmental impact statements
have been explained to persons in communities in close proximity to
manufacturing facilities.
Competence of Translators. As with oral interpreters, translators
of written documents should be competent. Many of the same
considerations apply, including the consideration that translators have
knowledge in both languages of any specialized terms or concepts
relevant to the program or activity. However, the skill of translating
is very different from the skill of interpreting, and a person who is a
competent interpreter may or may not be competent to translate.
Particularly where legal or other vital documents are being
translated, competence can often be achieved by
[[Page 35611]]
use of certified translators. Certification or accreditation may not
always be possible or necessary. Competence can often be ensured by
having a second, independent translator ``check'' the work of the
primary translator. Alternatively, one translator can translate the
document, and a second, independent translator could translate it back
into English to check that the appropriate meaning has been conveyed.
This is called ``back translation.''
Translators should understand the expected reading level of the
audience and, where appropriate, have fundamental knowledge about the
target language group's vocabulary and phraseology. Sometimes direct
translation of materials results in a translation that is written at a
much more difficult level than the English language version or has no
relevant equivalent meaning. Community organizations may be able to
help determine whether a document is written at an appropriate level
for the intended audience. Likewise, consistency in the words and
phrases used to translate terms of art, legal, or other technical
concepts helps avoid confusion by LEP individuals and may reduce costs.
Creating or using already-created glossaries of commonly-used terms may
be useful for LEP persons and translators and cost effective for the
recipient. Providing translators with examples of previous accurate
translations of similar material by the recipient, other recipients, or
Federal agencies may be helpful.
While quality and accuracy of translation services is critical, the
translator's ability can vary with the context. For instance, documents
that are simple and have no legal or other consequence for LEP persons
who rely on them may use translators that are less skilled than
important documents with legal or other information upon which reliance
has important consequences (e.g., information or documents of EPA
recipients regarding certain enforcement actions, health, and safety
services). The permanent nature of written translations, however,
imposes additional responsibility on the recipient to ensure that the
quality and accuracy permit meaningful access by LEP persons.
VII. Elements of Effective Plan on Language Assistance for LEP Persons
After completing the four-factor analysis and deciding what
language assistance services are appropriate, a recipient should
develop an implementation plan to address the identified needs of the
LEP populations they serve. Recipients have considerable flexibility in
developing this plan. The development, maintenance, and use of a
periodically-updated written plan on language assistance for LEP
persons (``LEP plan'') for use by recipient employees serving the
public will likely be the most appropriate and cost-effective means of
documenting compliance and providing a framework for the provision of
timely and reasonable language assistance. Moreover, such written plans
would likely provide additional benefits to a recipient's managers in
the areas of training, administration, planning, and budgeting. These
benefits should lead most recipients to document in a written LEP plan
their language assistance services, and how staff and LEP persons can
access those services. Despite these benefits, certain EPA recipients,
such as recipients serving very few LEP persons and recipients with
very limited resources, may choose not to develop a written LEP plan.
However, the absence of a written LEP plan does not obviate the
underlying obligation to ensure meaningful access by LEP persons to a
recipient's program or activities. Accordingly, in the event that a
recipient elects not to develop a written plan, it should consider
alternative ways to articulate in some other reasonable manner a plan
for providing meaningful access. Entities having significant contact
with LEP persons, such as schools, religious organizations, community
groups, and groups working with new immigrants can be very helpful in
providing important input into this planning process from the
beginning.
The following five steps may be helpful in designing an LEP plan
and are typically part of effective implementation plans.
(1) Identifying LEP Individuals Who Need Language Assistance
The first two factors in the four-factor analysis require an
assessment of the number or proportion of LEP individuals eligible to
be served or encountered and the frequency of encounters. This requires
recipients to identify LEP persons with whom it has contact.
One way to determine the language of communication is to use
language identification cards (or ``I speak cards''), which invite LEP
persons to identify their language needs to staff. Such cards, for
instance, might say ``I speak Spanish'' in both Spanish and English,
``I speak Vietnamese'' in both English and Vietnamese, etc. To reduce
costs of compliance, the Federal government has made a set of these
cards available on the Internet. The Census Bureau ``I speak card'' can
be found and downloaded at http://www.usdoj.gov/crt/cor/13166.htm.
When records are normally kept of past interactions with members of the
public, the language of the LEP person can be included as part of the
record. In addition to helping employees identify the language of LEP
persons they encounter, this process will help in future applications
of the first two factors of the four-factor analysis. In addition,
posting notices in commonly encountered languages notifying LEP persons
of language assistance will encourage them to self-identify.
(2) Language Assistance Measures
An effective LEP plan would likely include information about the
ways in which language assistance will be provided. For instance,
recipients may want to include information on at least the following:
? Types of language services available.
? How staff can obtain those services.
? How to respond to LEP callers.
? How to respond to written communications from LEP persons.
? How to respond to LEP individuals who have in-person
contact with recipient staff.
? How to ensure competency of interpretation and translation
services.
(3) Training Staff
Staff should know their obligations to provide meaningful access to
information and services for LEP persons. An effective LEP plan would
likely include training to ensure that:
? Staff know about LEP policies and procedures.
? Staff having contact with the public are trained to work
effectively with in-person and telephone interpreters.
Recipients may want to include this training as part of the
orientation for new employees. It is important to ensure that all
employees in public contact positions (or having contact with those in
a recipient's custody) are properly trained. Recipients have
flexibility in deciding the manner in which the training is provided.
The more frequent the contact with LEP persons, the greater the need
will be for in-depth training. Staff with little or no contact with LEP
persons may only have to be aware of an LEP plan. However, management
staff, even if they do not interact regularly with LEP persons, should
be fully aware of and understand the plan so they can reinforce its
importance and ensure its implementation by staff.
[[Page 35612]]
(4) Providing Notice to LEP Persons
Once an agency has decided, based on the four factors, that it will
provide language services, it is important for the recipient to let LEP
persons know that those services are available and that they are free
of charge. Recipients should provide this notice in a language LEP
persons will understand. Examples of notification that recipients
should consider include:
? Posting signs in entry areas and points. When language
assistance is needed to ensure meaningful access to information and
services, it is important to provide notice in appropriate languages in
intake areas or initial points of contact so that LEP persons can learn
how to access those language services. This is particularly true in
areas with high volumes of LEP persons seeking access to certain
health, safety, or environmental enforcement services or activities run
by EPA recipients. For instance, signs in intake or environmental
advocacy or protection offices could state that free language
assistance is available. The signs should be translated into the most
common languages encountered. They should explain how to get the
language help.\32\
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\32\ The Social Security Administration has made such signs
available at http://www.ssa.gov/multilanguage/langlist1.htm. These
signs could, for example, be modified for recipient use.
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? Stating in outreach documents that language services are
available from the agency or organization. Announcements could be in,
for instance, brochures, booklets, and in outreach and recruitment
information. These statements should be translated into the most common
languages and could be ``tagged'' onto the front of common documents.
? Working with community-based organizations and other
stakeholders to inform LEP individuals of the recipients' services,
including the availability of language assistance services.
? Using a telephone voice mail menu. The menu could be in
the most common languages encountered. It should provide information
about available language assistance services and how to get them.
? Including notices in local newspapers in languages other
than English.
? Providing notices on non-English-language radio and
television stations about the available language assistance services
and how to get them.
? Presentations and/or notices at schools and religious
organizations.
(5) Monitoring and Updating the LEP Plan
Recipients should, where appropriate, have a process for
determining, on an ongoing basis, whether new documents, programs,
services, and activities need to be made accessible for LEP
individuals, and they may want to provide notice of any changes in
services to the LEP public and to employees. In addition, recipients
should consider whether changes in demographics, types of services, or
other needs require annual reevaluation of their LEP plan. Less
frequent reevaluation may be more appropriate where demographics,
services, and needs are more static. One good way to evaluate the LEP
plan is to seek feedback from the community.
In their reviews, recipients may want to consider assessing changes
in:
? Current LEP populations in service area or population
affected or encountered.
? Frequency of encounters with LEP language groups.
? Nature and importance of activities to LEP persons.
? Availability of resources, including technological
advances and sources of additional resources, and the costs imposed.
? Whether existing assistance is meeting the needs of LEP
persons.
? Whether staff knows and understands the LEP plan and how
to implement it.
? Whether identified sources for assistance are still
available and viale.
In addition, effective plans set clear goals, management
accountability, and opportunities for community input and planning
throughout the process.
VIII. Voluntary Compliance Effort
The goal for Title VI and Title VI regulatory enforcement is to
achieve voluntary compliance. The requirement to provide meaningful
access to LEP persons is enforced and implemented by EPA through the
procedures identified in the Title VI regulations.\33\ These procedures
include complaint investigations, compliance reviews, efforts to secure
voluntary compliance, and technical assistance.
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\33\ 40 CFR part 7, subpart E.
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The Title VI regulations provide in part that EPA will seek the
cooperation of applicants and recipients in securing compliance. If a
complaint is made, EPA will attempt to resolve it through informal
means whenever possible. If a complaint is made and the matter cannot
be resolved informally, EPA may secure compliance by denying,
annulling, suspending, or terminating EPA assistance. If EPA discovers
noncompliance, EPA engages in voluntary compliance efforts and provides
technical assistance to recipients at all stages of an investigation.
During these efforts, EPA expects to propose reasonable timetables for
achieving compliance and consult with and assist recipients in
exploring cost-effective ways of coming into compliance. In determining
a recipient's compliance with the Title VI regulations with regard to
LEP, EPA's primary concern is to ensure that the recipient's policies
and procedures provide meaningful access for LEP persons to the
recipient's programs and activities.
While all recipients should work toward building systems that will
ensure access for LEP individuals, EPA acknowledges that the
implementation of a comprehensive system to serve LEP individuals is a
process and that a system will evolve over time as it is implemented
and periodically reevaluated. As recipients take reasonable steps to
provide meaningful access to Federally assisted programs and activities
for LEP persons, EPA expects to look favorably on intermediate steps
recipients take that are consistent with this Guidance, and that, as
part of a broader implementation plan or schedule, move their service
delivery system toward providing full access to LEP persons. This does
not excuse noncompliance but instead recognizes that full compliance in
all areas of a recipient's activities and for all potential language
minority groups may reasonably require a series of implementing actions
over a period of time. However, in developing any phased implementation
schedule, EPA recipients should ensure that the provision of
appropriate assistance for significant LEP populations, or with respect
to activities having a significant impact on the health, safety, legal
rights, or livelihood of beneficiaries is addressed first. Recipients
are encouraged to document their efforts to provide LEP persons with
meaningful access to Federally assisted programs and activities.
IX. Specific Examples
EPA recipients are principally state and local government
environmental programs. Their principal functions are the development
and implementation of environmental regulations, policies and programs;
issuance of environmental permits; and enforcement of environmental
laws. Other significant recipient categories include universities,
which use grant monies to fund and
[[Page 35613]]
conduct research and education, and public-interest non-profits, which
use grant monies to organize, educate and represent communities with
environmental concerns.
The promulgation of environmental regulations generally requires
public notice and comment on proposals. EPA recipients, in applying the
four factor analysis, will need to take reasonable steps to ensure
limited English proficient persons have a meaningful opportunity to
comment on proposed regulations. The mission of EPA and many of it
recipients, in part, is to protect public health. EPA and its
recipients should affirmatively develop and employ creative measures to
eliminate or minimize communication barriers that interfere with the
ability of LEP persons to meaningfully participate in and benefit from
EPA and EPA recipient programs and activities.
Often, issuing environmental permits also requires public notice
and, and when the permitting action affects LEP persons, the permit
process is subject to the same kinds of language concerns that are
present in the promulgation of environmental regulations. Indeed,
language concerns may be at least as critical in environmental
permitting because, while the development and implementation of
environmental regulations, policies and programs largely concerns
general programmatic standards and practices, environmental permitting
typically concerns the application of those standards and practices in
a specific geographic area that directly affects an immediate
population or community.
Enforcing environmental laws often requires public input. Private
citizens often file complaints and can be important sources of
information--but only if they can communicate with the relevant
authority for enforcing those laws. Another area of environmental
enforcement that will often require language and translation services
is the settlement of environmental cases. It is EPA policy that such
settlements include the affected population or community. This is
especially true where environmental settlements include the use of
Supplemental Environmental Projects (SEPs) which provide direct
services, benefits or improvements to local communities.
X. Conclusion
This LEP Guidance suggests a general framework to help recipients
develop a program to provide meaningful access to LEP persons and
provides an idea of how EPA will evaluate recipients efforts to ensure
meaningful access. The recommendations above are not intended to be
exhaustive. Recipients have considerable flexibility in determining how
to comply with their Title VI legal obligation in the LEP setting, and
are not required to use the suggested framework in this guidance
document. However, EPA recipients should ensure meaningful access by
LEP persons to their programs and activities through appropriate
policies and procedures for providing language assistance to fulfill
their Title VI responsibilities.
Dated: June 16, 2004.
Karen Higginbotham,
Director, Office of Civil Rights.
[FR Doc. 04-14464 Filed 6-24-04; 8:45 am]
BILLING CODE 6560-50-P