[Federal Register: August 7, 2003 (Volume 68, Number 152)] [Notices]
[Page 47099-47103] From the Federal Register Online via GPO Access
[wais.access.gpo.gov] [DOCID:fr07au03-94]
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NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES
Institute of Museum and Library Services; Guidance to Federal
Financial Assistance Recipients Regarding Title VI Prohibition Against
National Origin Discrimination Affecting Limited English Proficient
Persons
AGENCY: Institute of Museum and Library Services; National Foundation
on the Arts and the Humanities.
ACTION: Final guidance.
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SUMMARY: The Institute of Museum and Library Services (IMLS) is
publishing final policy guidance on Title VI's prohibition against
national origin discrimination as it affects limited English proficient
persons.
DATES: This policy guidance is effective immediately.
FOR FURTHER INFORMATION CONTACT: Nancy Weiss, Office of General Counsel,
Institute of Museum and Library Services, 1100 Pennsylvania Avenue, NW.,
Suite 802, Washington, DC 20506 or by telephone at 202- 606-8696, e-mail:
nweiss@imls.gov.
SUPPLEMENTARY INFORMATION: On April 10, 2003, the IMLS published in the
Federal Register at 68 FR 17679, proposed policy guidance on Title VI's
prohibition against national origin discrimination as it affects limited
English proficient persons. The agency publishes this as its Final Guidance.
Under IMLS regulations implementing Title VI of the Civil [[Page 47100]]
Rights Act of 1964, 42 U.S.C. 2000d, et seq. (Title VI),
recipients of federal financial assistance from the IMLS ("recipients")
have a responsibility to ensure meaningful access by persons with limited
English proficiency (LEP) to their programs and activities. See 45 CFR 1170.
Executive Order 13166, reprinted at 65 FR 50121 (August 16, 2000), directs
each Federal agency that extends assistance subject to the requirements of
Title VI to publish, after review and approval by the Department of Justice,
guidance for its recipients clarifying that obligation. The Executive Order
also directs that all such guidance be consistent with the compliance
standards and framework detailed in DOJ Policy Guidance entitled
"Enforcement of Title VI of the Civil Rights Act of 1964--National
Origin Discrimination Against Persons With Limited English Proficiency."
See 65 FR 50123 (August 16, 2000).
On March 14, 2002, the Office of Management and Budget (OMB) issued a
Report To Congress titled "Assessment of the Total Benefits and Costs of
Implementing Executive Order No. 13166: Improving Access to Services for
Persons With Limited English Proficiency." Among other things, the
Report recommended the adoption of uniform guidance across all federal
agencies, with flexibility to permit tailoring to each agency's specific
recipients. Consistent with this OMB recommendation, the Department of
Justice (DOJ) published LEP Guidance for DOJ recipients which was drafted
and organized to also function as a model for similar guidance by other
federal grant agencies. See 67 FR 41455 (June 18, 2002). This guidance
is based upon and incorporates the legal analysis and compliance
standards of the model June 18, 2002, DOJ LEP Guidance for Recipients.
It has been determined that the guidance does not constitute a regulation
subject to the rulemaking requirements of the Administrative Procedure
Act, 5 U.S.C. 553. It has also been determined that this guidance is not
subject to the requirements of Executive Order 12866.
The text of the complete final guidance document appears below.
Dated: ------, 2003. Nancy E. Weiss, General Counsel, Institute of Museum and Library Services.
I. Introduction
Most individuals living in the United States read, write, speak, and
understand English. There are many individuals, however, for whom
English is not their primary language. For instance, based on the 2000
census, over 26 million individuals speak Spanish and almost 7 million
individuals speak an Asian or Pacific Island language at home. If these
individuals have a limited ability to read, write, speak, or understand
English, they are limited English proficient, or "LEP." Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq. and its
implementing regulations provide that no person shall be subjected to
discrimination on the basis of race, color, or national origin under any
program or activity that receives federal financial assistance. Language for
LEP individuals can be a barrier to accessing important benefits or services,
understanding and exercising important rights, complying with applicable
responsibilities, or understanding other information provided by federally
funded programs and activities.
In certain circumstances, failure to ensure that LEP persons can
effectively participate in or benefit from federally assisted programs
and activities may violate the prohibition under Title VI of the civil
rights Act of 1964, 42 U.S.C. 200d and Title VI regulations against
national origin discrimination.
The purpose of this policy guidance is to clarify the responsibilities of
recipients of federal financial assistance from the Institute of Museum and
Library Services (IMLS), and assist them in fulfilling their responsibilities
to limited English proficient (LEP) persons pursuant to Title VI of the Civil
Rights Act of 1964 and the IMLS implementing regulations. The policy guidance
reiterates IMLS's longstanding position that, in order to avoid discrimination
against LEP person on the grounds of national origin, recipients must take
reasonable steps to ensure that such persons have meaningful access to the
programs, services, and information those recipients provide.
This policy guidance is modeled on and incorporates the legal analysis and
compliance standards and framework set out in Section I through Section
VIII of Department of Justice (DOJ) Policy Guidance titled "Guidance to
Federal Financial Assistance Recipients Regarding Title VI Prohibition
Against National Origin Discrimination Affecting Limited English
Proficient Persons," published at 67 FR 41455, 41457- 41465
(June 18, 2002) (DOJ Recipient LEP Guidance). To the extent additional
clarification is desired on the obligation under Title VI to ensure
meaningful access by LEP persons and how recipients can satisfy that
obligation, a recipient should consult the more detailed discussion
of the applicable compliance standards and relevant factors set out in
DOJ Recipient LEP Guidance. The DOJ Guidance may be viewed and downloaded at
http://www.usdoj.gov/crt/cor/lep/DOJFinLEPFRJun182002.htm
or at http://www.lep.gov. In addition, IMLS recipients also receiving federal financial assistance from
other federal agencies, such as the National Endowment for the Humanities,
should review those agencies' guidance documents at
http://www.lep.gov for a more focused explanation of how they can comply with their Title VI and
regulatory obligations in the context of similar federally assisted programs
or activities.
Many commentators have noted that some have interpreted the case of
Alexander v. Sandoval, 532 U.S. 275 (2001), as impliedly striking down
the regulations promulgated under Title VI that form the basis for the
part of Executive Order 13166 that applies to federally assisted programs
and activities. The IMLS and the Department of Justice have taken the
position that this is not the case, and will continue to do so.
Accordingly, we will strive to ensure that federally assisted programs
and activities work in a way that is effective for all eligible
beneficiaries, including those with limited English proficiency.
II. Purpose and Application
This policy guidance provides a legal framework to assist recipients in
developing appropriate and reasonably language assistance measures
designed to address the needs of LEP individuals. The IMLS Title VI
implementing regulations prohibit both intentional discrimination and
policies and practices that appear neutral but have a discriminatory
effect. Thus, a recipient entity's policy or practices regarding the
provision of benefits and services to LEP persons need not be intentional
to be discriminatory, but may constitute a violation of Title VI if they
have an adverse effect on the ability of national origin minorities to
meaningfully access programs and services.
Recipient entities have considerable flexibility in determining how to
comply with their legal obligation in the LEP setting and are not
required to use the suggested methods and options that follow. However,
recipient entities must establish and implement policies and procedures
for providing language assistance sufficient to fulfill their Title VI
responsibilities and provide LEP persons with meaningful access to
services. [[Page 47101]]
III. Policy Guidance
1. Who Is Covered
All entities that receive federal financial assistance from IMLS,
either directly or indirectly, through a grant, cooperative agreement,
contract or subcontract, are covered by this policy guidance. Title VI
applies to all federal financial assistance, which includes but is not
limited to awards and loans of federal funds, awards or donations of
federal property, details of federal personnel, or any agreement,
arrangement or other contract that has as one of its purposes the
provision of assistance.
Title VI prohibits discrimination in any program or activity that
receives federal financial assistance. In most cases, when a recipient
receives federal financial assistance for a particular program or
activity, all operations of the recipient are covered by Title VI, not
just the part of the program that uses the federal assistance. Thus, all
parts of the recipient's operations would be covered by Title VI, even if
the federal assistance were used only by one part.
Finally, some recipients operate in jurisdictions in which English has
been declared the official language. Nonetheless, these recipients
continue to be subject to federal non-discrimination requirements,
including those applicable to the provision of federally assisted
services to persons with limited English proficiency.
2. Basic Requirement: All Recipients Must Take Reasonable Steps To
Provide Meaningful Access to LEP Persons
Title VI and the IMLS implementing regulations require that recipients
take reasonable steps to ensure meaningful access to the information,
programs, and services they provide. Recipients of federal assistance
have considerable flexibility in determining precisely how to fulfill
this obligation.
It is also important to emphasize that museums and libraries are in the
business of maintaining, sharing, and disseminating vast amounts of
information and items, most of which are created or generated by third
parties. In large measure, the common service provided by these
recipients is access to information, whether maintained on-site or
elsewhere, not the generation of the source information itself. This
distinction is critical in properly applying Title VI to museums,
libraries, and similar programs. For example, in the context of library
services, recipients initially should focus on their procedures or
services that directly impact access in three areas. First, applications
for library or membership cards, instructions on card usage, and
dissemination of information on where and how source material is
maintained and indexed, should be available in appropriate languages
other than English. Second, recipients should, consistent with the four
factor analysis, determine what reasonable steps could be taken to
enhance the value of their collections or services to LEP persons,
including, for example, accessing language-appropriate books through
inter-library loans, direct acquisitions, and/or online materials.
Third, to the extent a recipient provides services beyond access to
books, art, or cultural collections to include the generation of
information about those collections, research aids, or community
educational outreach such as reading or discovery programs, these
additional or enhanced services should be separately evaluated under
the four-factor analysis. A similar distinction can be employed with
respect to a museum's exhibits versus a museum's procedures for
meaningful access to those exhibits.
What constitute reasonable steps to ensure meaningful access in the
context of federally-assisted programs and activities in the area of
museums and library services will be contingent upon a balancing of four
factors: (1) The number and proportion of eligible LEP constituents; (2)
the frequency of LEP individuals' contact with the program; (3) the
nature and importance of the program; and (4) the resources available,
including costs. Each of these factors is summarized below. In addition,
recipients should consult Section V of the June 18, 2002 DOJ LEP Guidance for
Recipients, 67 FR at 41459-41460 or http://www.lep.gov,
for additional detail on the nature, scope, and application of these factors.
(1) Number or Proportion of LEP Individuals
The appropriateness of any action will depend on the size and
proportion of the LEP population that the recipient serves and the
prevalence of particular languages. Programs that serve a few or even
one LEP person are still subject to the Title VI obligation to take
reasonable steps to provide meaningful opportunities for access. The
first factor in determining the reasonableness of a recipient's efforts
in the number or proportion of people who will be effectively excluded
from meaningful access to the benefits or services if efforts are not
made to remove language barriers. The steps that are reasonable for a
recipient who serves one LEP person a year may be different than those
expected from a recipient that serves several LEP persons each day.
(2) Frequency of Contact With the Program
Frequency of contact between the program or activity and LEP
individuals is another factor to be weighed. If LEP individuals must
access the recipient's program or activity on a daily basis, a
recipient has greater duties than if such contact is unpredictable and
infrequent. Recipients should take into account local or regional
conditions when determining frequency of contact with the program, and
should have the flexibility to tailor their services to those needs.
(3) Nature and Importance of the Program
The importance of the recipient's program to beneficiaries will
affect the determination of what reasonable steps are required. More
affirmative steps must be taken in programs where the denial or delay
of access may have serious, or even life or death implications than in
programs that are not crucial to one's day-to-day existence, economic
livelihood, safety, or education. For example, the obligations, of a
federally assisted school or hospital differ from those of a federally
assisted museum or library. This factor implies that the obligation to
provide translation services will be highest in programs providing
education, job training, medical/health services, social welfare
services, and similar services. As a general matter, it is less likely
that museums and libraries receiving assistance from the IMLS will
provide services having a similar immediate and direct impact on a
person's life or livelihood. Thus, in large measure, it is the first
factor (number or proportion of LEP individuals) that will have the
greatest impact in determining the initial needs for language assistance
services.
In assessing the effect on individuals of failure to provide
language services, recipients must consider the importance of the
benefit to individuals both immediately and in the long-term. Another
aspect of this factor is the nature of the program itself. Some museum
content may be extremely accessible regardless of language. In these
instances, little translation might be required.
(4) Resources Available
IMLS is aware that its recipients may experience difficulties with
resource allocation. Many of the organizations' overall budgets, and
awards involved are quite small. The resources available to a recipient
of federal assistance may have an impact on the nature of the [[Page 47102]] steps
that recipient must take to ensure meaningful access. For example, a
small recipient with limited resources may not have to take the same
steps as a larger recipient to provide LEP assistance in programs that
have a limited number of eligible LEP individuals, where contact is
infrequent, where the total cost of providing language services is
relatively high, and/or where the program is not providing an important
service or benefit from, for instance, a health, education, economic,
or safety perspective. Translation and interpretation costs are
appropriately included in award budget requests.
This four-factor analysis necessarily implicates the "mix"of LEP
services required. The correct mix should be based on what is both
necessary and reasonable in light of the four-factor analysis. Even
those award recipients who serve very few LEP persons on an infrequent
basis should use a balancing analysis to determine whether the
importance of the services(s) provided and minimal costs make language
assistance measures reasonable even in the case of limited and
infrequent interactions with LEP persons. Recipients have substantial
flexibility in determining the appropriate mix.
IV. Strategies for Ensuring Meaningful Access
Museums and libraries have a long history of interacting with
people with varying language backgrounds and capabilities within the
communities where they are located. The agency's goal is to continue to
encourage these efforts and share practices so that other museums and
libraries can benefit from other institutions' experiences.
The following are examples of language assistance strategies that
are potentially useful for all recipients. These strategies incorporate
a variety of options and methods for providing meaningful access to LEP
beneficiaries and provide examples of how recipients should take each
of the four factors discussed above into account when developing an LEP
strategy. Not every option is necessary or appropriate for every
recipient with respect to all of its programs and activities. Indeed, a
language assistance plan need not be intricate; it may be as simple as
being prepared to use a commercially available "language line" to
obtain immediate interpreting services and/or having bilingual staff
members available who are fluent in the most common non-English
languages spoken in the area. Recipients should exercise the
flexibility afforded under this Guidance to select those language
assistance measures which have the greatest potential to address, at
appropriate levels and in reasonable manners, the specific language
needs of the LEP populations they serve.
Finally, the examples below are not intended to suggest that if
services to LEP populations aren't legally required under Title VI and
Title VI regulations, they should not be undertaken. Part of the way in
which libraries and museums build communities is by cutting across
barriers like language. A small investment in outreach to a
linguistically diverse community may well result in a rich cultural
exchange that benefits not only the LEP population, but also the
library or museum and the community as a whole.
Examples
[sbull] Identification of the languages that are likely to be
encountered in, and the number of LEP persons that are likely to be
affected by, the program. This information may be gathered through
review of census and constituent data as well as data from school
systems and community agencies and organizations;
[sbull] Posting signs in public areas in several languages,
informing the public of its right to free interpreter services and
inviting members of the public to identify themselves as persons
needing language assistance;
[sbull] Use of "I speak" cards for public-contact personnel so
that the public can easily identify staff language abilities;
[sbull] Employment of staff, bilingual in appropriate languages, in
public contact positions;
[sbull] Contracts with interpreting services that can provide
competent interpreters in a wide variety of languages in a timely
manner;
[sbull] Formal arrangements with community groups for competent and
timely interpreter services by community volunteers;
[sbull] An arrangement with a telephone language interpreter line
for on-demand service;
[sbull] Translations of application forms, instructional,
informational and other key documents into appropriate non-English
languages and provide oral interpreter assistance with documents for
those persons whose language does not exist in written form;
[sbull] Procedures for effective telephone communication between
staff and LEP persons, including instructions for English-speaking
employees to obtain assistance from bilingual staff or interpreters
when initiating or receiving calls to or from LEP persons;
[sbull] Notice to and training of all staff, particularly public
contact staff, with respect to the recipient's Title VI obligation to
provide language assistance to LEP persons, and on the language
assistance policies and the procedures to be followed in securing such
assistance in a timely manner;
[sbull] Insertion of notices, in appropriate languages, about
access to free interpreters and other language assistance, in
brochures, pamphlets, manuals, and other materials disseminated to the
public and to staff; and
[sbull] Notice to and consultation with community organizations
that represent LEP language groups, regarding problems and solutions,
including standards and procedures for using their members as interpreters.
In identifying language assistance measures, recipients should
avoid relying on an LEP person's family members, friends, or other
informal interpreters to provide meaningful access to important
programs and activities. However, where LEP persons so desire, they
should be permitted to use, at their own expense, an interpreter of
their own choosing (whether a professional interpreter, family member,
or friend) in place of or as a supplement to the free language services
expressly offered by the recipient. But where a balancing of the four
factors indicate that recipient-provided language assistance is
warranted, the recipient should take care to ensure that the LEP
person's choice is voluntary, that the LEP person is aware of the
possible problems if the preferred interpreter is a minor child, and
that the LEP person knows that a competent interpreter could be
provided by the recipient at no cost.
The use of family and friends as interpreters may be an appropriate
option where proper application of the four factors would lead to a
conclusion that recipient-provided language assistance is not
necessary. An example of this might be a bookstore or cafeteria
associated with a library or archive. There, the importance and nature
of the activity may be relatively low and unlikely to implicate issues
of confidentiality, conflict of interest, or the need for technical
accuracy. In addition, the resources needed and costs of providing
language services may be high. In such a setting, an LEP person's use
of family, friends, or other informal ad hoc interpreters may be
appropriate.
As noted throughout this guidance. IMLS award recipients have a
great deal of flexibility in addressing the needs of their constituents
with limited English skills. That flexibility does not diminish, and
should not be used to minimize, the obligation that those needs be
addressed. IMLS recipients should apply the four factors outlined [[Page 47103]]
above to the various kinds of contacts that they have with the public to
assess language needs and decide what reasonable steps they should take
to ensure meaningful access for LEP persons. By balancing the number or
proportion of people with limited English skills served, the frequency
of their contact with the program, the importance and nature of the
program, and the resources available, IMLS awardees' Title VI
obligations in many cases will be satisfied by making available oral
language assistance or commissioning translations on an as-requested
and as-needed basis. There are many circumstances where, after an
application and balancing of the four factors noted above, Title VI
would not require translation. For example, Title VI does not require a
library to translate its collections, but it does require the
implementation of appropriate language assistance measures to permit an
otherwise eligible LEP person to apply for a library card and
potentially to access appropriate-language materials through inter-
library loans or other reasonable methods. The IMLS views this policy
guidance as providing sufficient flexibility to allow the IMLS to
continue to fund language-dependent programs in both English and other
languages without requiring translation that would be inconsistent with
the nature of the program. Recipients should consult Section VI of the
June 18, 2002 DOJ LEP Guidance for Recipients, 67 FR at 41461-41464 or
http://www.lep.gov, for additional clarification on the standards
applicable to assessing interpreter and translator competence, and for
determining when translations of documents vital to accessing program
benefits should be undertaken.
The key to ensuring meaningful access for people with limited
English skills is effective communication. A library or museum can
ensure effective communication by developing and implementing a
comprehensive language assistance program that includes policies and
procedures for identifying and assessing the language needs of its LEP
constituents. Such a program should also provide for a range of oral
language assistance options, notice to LEP persons of the right to
language assistance, periodic training of staff, monitoring of the
program and, in certain circumstances, the translation of written
materials.
Each recipient should, based on its own volume and frequency of
contact with LEP clients and its own available resources, adopt a
procedure for the resolution of complaints regarding the provision of
language assistance and for notifying the public of their right to and
how to file a complaint under Title VI. State recipients, who will
frequently serve large numbers of LEP individuals, may consider
appointing a senior level employee to coordinate the language
assistance program and to ensure that there is regular monitoring of
the program.
V. Compliance and Enforcement
Executive order 13166 requires that each federal department or
agency extending federal financial assistance subject to Title VI issue
separate guidance implementing uniform Title VI compliance standards
with respect to LEP persons. Where recipients of federal financial
assistance from IMLS also receive assistance from one or more other
federal departments or agencies, there is no obligation to conduct and
document separate but identical analyses and language assistance plans
for IMLS. IMLS, in discharging its compliance and enforcement
obligations under Title VI, looks to analyses performed and plans
developed in response to similar detailed LEP guidance issued by other
federal agencies. Recipients may rely upon guidance issued by those
agencies.
IMLS's regulations implementing Title VI contain compliance and
enforcement provisions to ensure that a recipient's policies and
practices overcome barriers resulting from language differences that
would deny LEP persons an equal opportunity to participate in and
access to programs, services and benefits offered by IMLS. See 45 CFR
part 1110. The agency will ensure that its recipient entities fulfill
their responsibilities to LEP persons through the procedures provided
for the Title VI regulations.
The Title VI regulations provide that IMLS will investigate (or
contact its State recipient of funds to investigate, if appropriate)
whenever it receives a complaint, report or other information that
alleges or indicates possible noncompliance with Title VI. If the
investigation results in a finding of compliance, IMLS will inform the
recipient in writing of this determination, including the basis for the
determination. If the investigation results in a finding of
noncompliance, IMLS must inform the recipient of the noncompliance
through a Letter of Findings that sets out the areas of noncompliance
and the steps that must be taken to correct the noncompliance, and must
attempt to secure voluntary compliance through informal means. If the
matter cannot be resolved informally, the IMLS will secure compliance
through (a) the suspension of termination of federal assistance after
the recipient has been given an opportunity for an administrative
hearing, (b) referral to the Department of Justice for injunctive
relief or other enforcement proceedings, or (c) any other means
authorized by federal, state, or local law.
Under the Title VI regulations, the IMLS has a legal obligation to
seek voluntary compliance in resolving cases and cannot seek the
termination of funds until it has engaged in voluntary compliance
efforts and has determined that compliance cannot be secured voluntarily.
IMLS will engage in voluntary compliance efforts and will provide technical assistance to
recipients at all stages of its investigation. During these efforts to
secure voluntary compliance, IMLS will propose reasonable timetables
for achieving compliance and will consult with and assist recipients in
exploring cost effective ways of coming into compliance.
In determining a recipient's compliance with Title VI, the IMLS's
primary concern is to ensure that the recipient's policies and
procedures overcome barriers resulting from language differences that
would deny LEP persons a meaningful opportunity to participate in and
access programs, services, and benefits. A recipient's appropriate use
of the methods and options discussed in this policy guidance will be
reviewed by the IMLS as evidence of a recipient's willingness to comply
voluntarily with its Title VI obligations. If implementation of one or
more of these options would be so financially burdensome as to defeat
the legitimate objectives of a recipient/covered entity's program, or
if there are equally effective alternatives for ensuring that LEP
persons have meaningful access to programs and services (such as timely
effective oral interpretation of vital documents), IMLS will not find
the recipient/covered entity in noncompliance.
If you have any questions related to this policy, please contact
the IMLS Office of the General Counsel.
Nancy E. Weiss,
General Counsel.
[FR Doc. 03-20160 Filed 8-6-03; 8:45 am]
BILLING CODE 7036-01-M