[Federal Register Volume 69, Number 122 (Friday, June 25, 2004)]
[Notices]
[Pages 35602-35613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14464]


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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: 
[email protected]. 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.
---------------------------------------------------------------------------

    \29\ Small recipients with limited resources may find that 
entering into a bulk telephonic interpretation service contract will 
prove cost effective.
---------------------------------------------------------------------------

    This four-factor analysis necessarily implicates the ``mix'' of LEP 
services required. Recipients have two main ways to provide language 
services: Oral interpretation either in person or via telephone 
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