[Federal Register: January 12, 2004 (Volume 69, Number 7)]
[Notices]
[Page 1763-1768]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja04-114]
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
Guidance to Federal Financial Assistance Recipients Regarding
Title VI Prohibition Against National Origin Discrimination Affecting
Limited English Proficient Persons
AGENCY: National Archives and Records Administration.
ACTION: Notice of guidance.
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SUMMARY: The National Archives and Records Administration (NARA)
publishes policy guidance on Title VI's prohibition against national
origin discrimination as it affects limited English proficient persons.
DATES: Comments must be submitted on or before 60 days from the date of
publication. NARA will review all comments and will determine what
modifications, if any, to this policy guidance are necessary.
ADDRESSES: Comments must be sent to Regulation Comments Desk (NPOL),
Room 4100, Policy and Communications Staff, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
They may be faxed to 301-837-0319. Electronic comments may be submitted
through Regulations.gov. You may also comment via email to
comments@nara.gov.
FOR FURTHER INFORMATION CONTACT: Diane Dimkoff at telephone number 301-
837-1659. Arrangements to receive the policy in an alternative format
may be made by contacting the named individual.
SUPPLEMENTARY INFORMATION: NARA's mission statement is to ensure, for
the citizen and the public servant, for the President and for the
Congress and the Courts, ready access to essential evidence. The
National Historical Publications and Records Commission (NHPRC)
supports a wide range of activities to preserve, publish, and encourage
the use of documentary sources, created in every medium ranging from
quill pen to computer, relating to the history of the United States.
Each year, the Commission receives an appropriation from Congress to
support its grant program. Its administrative staff at the National
Archives Building in Washington, DC, implements its policies and
[[Page 1764]]
recommendations, advises the Commission on proposals, and provides
advice and assistance to potential applicants and grantees.
Under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et
seq. (Title VI) and regulations implementing Title VI, recipients of
federal financial assistance from NARA (``recipients'') have a
responsibility to ensure meaningful access by persons with limited
English proficiency (LEP) to their programs and activities. See, e.g.,
28 CFR 401-415. 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 (DOJ), guidance for its recipients
clarifying that obligation. The Executive Order also directs that all
such guidance be consistent with the compliance standards and framework
set forth by DOJ.
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,
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 NARA
guidance is based upon and incorporates the legal analysis and
compliance standards of the model June 18, 2002, DOJ LEP Guidance for
Recipients, but it has been tailored to NARA recipients, which include
historical societies and archives, universities, colleges, and
libraries.
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 proposed guidance document appears below.
Dated: January 6, 2004.
John W. Carlin,
Archivist of the United States.
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. 2000d 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 National Archives and Records Administration
(NARA), and assist them in fulfilling their responsibilities to limited
English proficient (LEP) persons pursuant to Title VI of the Civil
Rights Act of 1964 and implementing regulations. The policy guidance
reiterates the longstanding position that, in order to avoid
discrimination against LEP persons on the grounds of national origin,
recipients must take reasonable steps to ensure that such persons have
meaningful access to the programs, services, and information those
recipients provide. See, e.g., 28 CFR 401-415.
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 June 18, 2002 DOJ Guidance
may be viewed and downloaded at http://www.lep.gov.
In addition, NARA recipients also receiving federal financial
assistance from other federal agencies, such as the Department of
Education or the Institute of Museum and Library Services, 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.
Agency regulations promulgated pursuant to Section 602 of Title VI
universally forbid recipients from ``utiliz[ing] criteria or methods of
administration which have the effect of subjecting individuals to
discrimination because of their race, color, or national origin, or
have the effect of defeating or substantially impairing accomplishment
of the objectives of the program as respects individuals of a
particular race, color, or national origin.'' See, e.g., 28 CFR
42.104(b)(2) (DOJ), 29 CFR 15.3(b)(2) (Department of Agriculture), 34
CFR 100.3(b)(2) (Department of Education), 45 CFR 80.3(b)(2)
(Department of Health and Human Services), and 45 CFR 1110.3(b)(2)
(National Endowment for the Arts and Humanities). NARA regulations
implementing Title VI will be consistent with this long-standing
federal policy prohibiting the use of criteria or methods of
administration which have the effect of discriminating on the basis of
race, color, or national origin.
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. NARA and the DOJ 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.
[[Page 1765]]
II. Purpose and Application
This policy guidance provides a legal framework to assist
recipients in developing appropriate and reasonable language assistance
measures designed to address the needs of LEP individuals. As noted
above, Title VI and its implementing regulations prohibit both
intentional discrimination and policies and practices that appear
neutral but have a discriminatory effect. Thus, a recipient entity's
policies or practices regarding the provision of benefits and services
to LEP persons need not be intentional to be discriminatory, but may
constitute a violation of Title VI if they have an adverse effect on
the ability of national origin minorities to meaningfully access
programs and services. 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.
III. Policy Guidance
1. Who Is Covered?
All entities that receive Federal financial assistance from NARA,
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.
NARA recipients include, but are not limited to: State, county, and
local historical societies and archives; universities; colleges; and
libraries.
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 Title VI 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 libraries, archives, and
historical societies are generally 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 sources information itself. This distinction is
critical in properly applying Title VI to libraries, historical
societies, 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 on-line
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 historical society's exhibits versus procedures for
meaningful access to those exhibits.
What constitute reasonable steps to ensure meaningful access in the
context of federally-assisted programs and activities 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 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
form 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. For instance, a NHPRC-supported project to arrange and
describe a collection consisting primarily of documents originally
created in the Spanish language could provide finding aids that are
linguistically accessible for LEP Spanish-speakers. 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
[[Page 1766]]
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 library or
historical society. 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
libraries, archives, and historical societies receiving assistance from
NARA 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 need 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 content
(such as pictures) may be extremely accessible regardless of language.
In these instances, little translation might be required.
(4) Resources Available
NARA 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 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 as program costs 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
Many NARA recipients, such as libraries, have a long history of
interacting with people with varying language backgrounds and
capabilities within the communities where they are located. NARA's goal
is to continue to encourage these efforts and share practices so that
other libraries, archives, and historical societies can benefit from
these 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 historical societies 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 recipient and the community as a whole.
Examples
--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;
--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;
--Use of ``I speak'' cards for public-contact personnel so that the
public can easily identify staff language abilities;
--Employment of staff, bilingual in appropriate languages, in public
contact positions;
--Contracts with interpreting services that can provide competent
interpreters in a wide variety of languages in a timely manner;
--Formal arrangements with community groups for competent and timely
interpreter services by community volunteers;
--An arrangement with a telephone language interpreter line for on-
demand service;
--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;
--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;
--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;
--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
--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
[[Page 1767]]
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, NARA 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. NARA recipients should apply the four factors outlined 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, NARA 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. NARA views this policy
guidance as providing sufficient flexibility to allow NARA 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 recipient 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 NARA 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 NARA. NARA, 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.
The Title VI enforcement structure focuses on voluntary compliance.
NARA 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,
NARA will inform the recipient in writing of this determination,
including the basis for the determination. If the investigation results
in a finding of noncompliance, NARA 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, NARA 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 DOJ for injunctive relief
or other enforcement proceedings, or (c) any other means authorized by
federal, state, or local law.
NARA will seek voluntary compliance in resolving cases and does not
seek the termination of funds until it has engaged in voluntary
compliance efforts and has determined that compliance cannot be secured
voluntarily. NARA 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,
NARA 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, NARA'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 NARA 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
[[Page 1768]]
meaningful access to programs and services (such as timely effective
oral interpretation of vital documents), NARA will not find the
recipient/covered entity in noncompliance.
[FR Doc. 04-545 Filed 1-9-04; 8:45 am]
BILLING CODE 7515-01-P