ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: June 18, 2002 (Volume 67, Number 117)]
[Notices]               
[Page 41455-41472]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jn02-96]                         

-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

 
Guidance to Federal Financial Assistance Recipients Regarding 
Title VI Prohibition Against National Origin Discrimination Affecting 
Limited English Proficient Persons

AGENCY: Department of Justice.

ACTION: Policy guidance document.

-----------------------------------------------------------------------

SUMMARY: The Department of Justice (DOJ) adopts final Guidance to 
Federal Financial Assistance Recipients Regarding Title VI Prohibition 
Against National Origin Discrimination Affecting Limited English 
Proficient Persons (DOJ Recipient LEP Guidance). The DOJ Recipient LEP 
Guidance is issued pursuant to Executive Order 13166, and supplants 
existing guidance on the same subject originally published at 66 FR 
3834 (January 16, 2001).

DATES: Effective June 12, 2002.

FOR FURTHER INFORMATION CONTACT: Merrily A. Friedlander, Chief, 
Coordination and Review Section, Civil Rights Division, 950 
Pennsylvania Avenue, NW-NYA, Washington, DC 20530. Telephone 202-307-
2222; TDD: 202-307-2678.

SUPPLEMENTARY INFORMATION: Under DOJ regulations implementing Title VI 
of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq. (Title VI), 
recipients of Federal financial assistance have a responsibility to 
ensure meaningful access to their programs and activities by persons 
with limited English proficiency (LEP). See 28 CFR 42.104(b)(2). 
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 guidance for its respective 
recipients clarifying that obligation. Executive Order 13166 further 
directs that all such guidance documents be consistent with the 
compliance standards and framework detailed in DOJ Policy Guidance 
entitled ``Enforcement of Title VI of the Civil Rights Act of 1964--
National Origin Discrimination Against Persons with Limited English 
Proficiency.'' See 65 FR 50123 (August 16, 2000).
    Initial guidance on DOJ recipients' obligations to take reasonable 
steps to ensure access by LEP persons was published on January 16, 
2001. See 66 FR 3834. That guidance document was republished for 
additional public comment on January 18, 2002. See 67 FR 2671. Based on 
public comments filed in response to the January 18, 2002 
republication, DOJ published revised draft guidance for public comment 
on April 18, 2002. See 67 FR 19237.
    DOJ received 24 comments in response to its April 18, 2002 
publication of revised draft guidance on DOJ recipients' obligations to 
take reasonable steps to ensure access to programs and activities by 
LEP persons. The comments reflected the views of individuals, 
organizations serving LEP populations, organizations favoring the use 
of the English language, language assistance service providers, and 
state agencies. While many comments identified areas for improvement 
and/or revision, the overall response to the draft DOJ Recipient LEP 
Guidance was favorable. Taken together, a majority of the comments 
described the draft guidance as incorporating ``reasonable standards'' 
or ``helpful provisions'' providing ``useful suggestions instead of 
mandatory requirements'' reflecting ``common sense'' and a ``more 
measured tone'' over prior LEP guidance documents.
    Two of the comments urged withdrawal of the draft guidance as 
unsupported by law. In response, the Department notes here as it did in 
the draft Recipient LEP Guidance published on April 18, 2002 that the 
Department's commitment to implement Title VI through regulations 
reaching language barriers is long-standing and is unaffected by recent 
judicial action precluding individuals from bringing judicial actions 
seeking to enforce those agency regulations. See 67 FR at 19238-19239. 
This particular policy guidance clarifies existing statutory and 
regulatory requirements for LEP persons by providing a description of 
the factors recipients should consider in fulfilling their 
responsibilities to LEP persons.
    Of the remaining 22 comments, three supported adoption of the draft 
guidance as published, and 19, while supportive of the guidance and the 
Department's leadership in this area, suggested modifications which 
would, in their view, either (1) clarify the application of the 
flexible compliance standard incorporated by the draft guidance to 
particular areas or situations, or (2) provide a more definitive 
statement of the minimal compliance standards in this area. Several 
areas were raised in more than one comment. In the order most often 
raised, those common areas of comment were (1) recipient language 
assistance plans, (2) use of informal interpreters, (3) written 
translation safe harbors, and (4) cost considerations. The comments in 
each of these area are summarized and discussed below.
    Recipient Language Assistance Plans. A large number of comments 
recommended that written language assistance plans (LEP Plans) be 
required of all recipients. The Department is cognizant of the value of 
written LEP plans in documenting a recipient's compliance with its 
obligation to ensure meaningful access by LEP persons, and in providing 
a framework for the provision of reasonable and necessary language 
assistance to LEP persons. The Department is also aware of the related 
training, operational, and planning benefits most recipients would 
derive from the generation and maintenance of an updated written 
language assistance plan for use by its employees. In the large 
majority of cases, the benefits flowing from a written language 
assistance plan has caused or will likely cause recipients to develop, 
with varying degrees of detail, such written plans. Even small 
recipients with limited contact with LEP persons would likely benefit 
from having a plan in place to assure that, when the need arises, staff 
have a written plan to turn to--even if it is only how to access a 
telephonic or community-based interpretation service--when determining 
what language services to provide and how to provide them.
    However, the fact that the vast majority of the Department's 
recipients already have or will likely develop a written LEP plan to 
reap its many benefits does not necessarily mean that every recipient, 
however small its staff, limited its resources, or focused its 
services, will realize the same benefits and thus must follow an 
identical path. Without clear evidence suggesting that the absence of 
written plans for every single recipient is impeding accomplishment of 
the goal of meaningful access, the Department elects at this juncture 
to strongly recommend but not require written language assistance 
plans. The

[[Page 41456]]

Department stresses in this regard that neither the absence of a 
requirement of written LEP plans in all cases nor the election by an 
individual recipient against drafting a plan obviates the underlying 
obligation on the part of each recipient to provide, consistent with 
Title VI, the Title VI regulations, and the DOJ Recipient LEP Guidance, 
reasonable, timely, and appropriate language assistance to the LEP 
populations each serves.
    While the Department continues to believe that the Recipient LEP 
Guidance strikes the correct balance between recommendations and 
requirements in this area, the Department has revised the introductory 
paragraph of Section VII of the Recipient LEP Guidance to acknowledge a 
recipient's discretion in drafting a written LEP plan yet to emphasize 
the many benefits that weigh in favor of such a written plan in the 
vast majority of cases.
    Informal Interpreters. As in the case of written LEP plans, a large 
number of the comments urged the incorporation of more definitive 
language strongly discouraging or severely limiting the use of informal 
interpreters such as family members, guardians, caretakers, friends, or 
fellow inmates or detainees. Some recommended that the draft guidance 
be revised to prohibit the use of informal interpreters except in 
limited or emergency situations. A common sub-theme running through 
many of these comments was a concern regarding the technical and 
ethical competency of such interpreters to ensure meaningful and 
appropriate access at the level and of the type contemplated under the 
DOJ Recipient LEP Guidance.\1\
---------------------------------------------------------------------------

    \1\ A few comments urged the Department to incorporate language 
detailing particular interpretation standards or approaches. The 
Department declines to set, as part of the DOJ Recipient LEP 
Guidance, professional or technical standards for interpretation 
applicable to all recipients in every community and in all 
situations. General guidelines for translator and interpreter 
competency are already set forth in the guidance. Technical and 
professional standards and necessary vocabulary and skills for court 
interpreters and interpreters in custodial interrogations, for 
instance, would be different from those for emergency service 
interpreters, or, in turn, those for interpreters in educational 
programs for correctional facilities. Thus, recipients, 
beneficiaries, and associations of professional interpreters and 
translators should collaborate in identifying the applicable 
professional and technical interpretation standards that are 
appropriate for particular situations.
---------------------------------------------------------------------------

    As in the case of written LEP plans, the Department believes that 
the DOJ Recipient LEP Guidance provides sufficient guidance to allow 
recipients to strike the proper balance between the many situations 
where the use of informal interpreters is inappropriate, and the few 
situations where the transitory and/or limited use of informal 
interpreters is necessary and appropriate in light of the nature of a 
service or benefit being provided and the factual context in which that 
service or benefit is being provided. Nonetheless, the Department 
concludes that the potential for the inappropriate use of informal 
interpreters or, conversely, its unnecessary avoidance, can be 
minimized through additional clarifications in the DOJ Recipient LEP 
Guidance. Towards that end, the subsection titled ``Use of Family 
Members, Friends, Other Inmates, or Other Detainees as Interpreters' of 
Section VI.A. of the DOJ Recipient LEP Guidance has been revised to 
include guardians and caretakers among the potential class of informal 
interpreters, to note that beneficiaries who elect to provide their own 
informal interpreter do so at their own expense, to clarify that 
reliance on informal interpreters should not be part of any recipient 
LEP plan, and to expand the discussion of the special considerations 
that should guide a recipient's limited reliance on informal 
interpreters.
    Safe Harbors. Several comments focused on safe harbor and vital 
documents provisions of the written translations section of the DOJ 
Recipient LEP Guidance.\2\ A few comments observed that the safe harbor 
standard set out in the Recipient LEP Guidance was too high, 
potentially permitting recipients to avoid translating several critical 
types of vital documents (e.g., notices of denials of benefits or 
rights, leases, rules of conduct, etc.). In contrast, another comment 
pointed to this same standard as support for the position that the safe 
harbor provision was too low, potentially requiring a large recipient 
to incur extraordinary fiscal burdens to translate all documents 
associated with the program or activity.
---------------------------------------------------------------------------

    \2\ One comment pointed out that current demographic information 
based on the 2000 Census or other data was not readily available to 
assist recipients in identifying the number or proportion of LEP 
persons and the significant language groups among their otherwise 
eligible beneficiaries. The Department is aware of this potential 
difficulty and is, among other things, working with the Census 
Bureau, among other entities, to increase the availability of such 
demographic data.
---------------------------------------------------------------------------

    The decision as to what program-related documents should be 
translated into languages other than English is a difficult one. While 
documents generated by a recipient may be helpful in understanding a 
program or activity, not all are critical or vital to ensuring 
meaningful access by beneficiaries generally and LEP persons 
specifically. Some documents may create or define legally enforceable 
rights or responsibilities on the part of individual beneficiaries 
(e.g., leases, rules of conduct, notices of benefit denials, etc.). 
Others, such as application or certification forms, solicit important 
information required to establish or maintain eligibility to 
participate in a Federally-assisted program or activity. And for some 
programs or activities, written documents may be the core benefit or 
service provided by the program or activity. Moreover, some programs or 
activities may be specifically focused on providing benefits or 
services to significant LEP populations. Finally, a recipient may elect 
to solicit vital information orally as a substitute for written 
documents. For example, many state unemployment insurance programs are 
transitioning away from paper-based application and certification forms 
in favor of telephone-based systems. Also, certain languages (e.g., 
Hmong) are oral rather than written, and thus a high percentage of such 
LEP speakers will likely be unable to read translated documents or 
written instructions since it is only recently that such languages have 
been converted to a written form. Each of these factors should play a 
role in deciding what documents should be translated, what target 
languages other than English are appropriate, or even whether more 
effective alternatives to a continued reliance on written documents to 
obtain or process vital information exist.
    As has been emphasized elsewhere, the Recipient LEP Guidance is not 
intended to provide a definitive answer governing the translation of 
written documents for all recipients applicable in all cases. Rather, 
in drafting the safe harbor and vital documents provisions of the 
Recipient LEP Guidance, the Department sought to provide one, but not 
necessarily the only, point of reference for when a recipient should 
consider translations of documents (or the implementation of 
alternatives to such documents) in light of its particular program or 
activity, the document or information in question, and the potential 
LEP populations served. In furtherance of this purpose, the safe harbor 
and vital document provisions of the Recipient LEP Guidance have been 
revised to clarify the elements of the flexible translation standard, 
and to acknowledge that distinctions can and should be made between 
frequently-encountered and less commonly-encountered languages when 
identifying languages for translation.
    Costs Considerations. A number of comments focused on cost 
considerations as an element of the Department's flexible four-factor 
analysis for identifying and addressing the language assistance needs 
of LEP

[[Page 41457]]

persons. While none urged that costs be excluded, some comments 
expressed concern that a recipient could use cost as a basis for 
avoiding otherwise reasonable and necessary language assistance to LEP 
persons. In contrast, a few comments suggested that the flexible fact-
dependent compliance standard incorporated by the DOJ Recipient LEP 
Guidance, when combined with the desire of most recipients to avoid the 
risk of noncompliance, could lead some large, state-wide recipients to 
incur unnecessary or inappropriate fiscal burdens in the face of 
already strained program budgets. The Department is mindful that cost 
considerations could be inappropriately used to avoid providing 
otherwise reasonable and necessary language assistance. Similarly, cost 
considerations could be inappropriately ignored or minimized to justify 
the provision of a particular level or type of language service where 
less costly equally effective alternatives exist. The Department also 
does not dismiss the possibility that the identified need for language 
services might be quite costly for certain types of recipients in 
certain communities, particularly if they have not been keeping up with 
the changing needs of the populations they serve over time.
    The potential for possible abuse of cost considerations by some 
does not, in the Department's view, justify its elimination as a factor 
in all cases when determining the appropriate ``mix'' of reasonable 
language assistance services determined necessary under the DOJ 
Recipient LEP Guidance to ensure meaningful access by LEP persons to 
Federally assisted programs and activities. The Department continues to 
believe that costs are a legitimate consideration in identifying the 
reasonableness of particular language assistance measures, and that the 
DOJ Recipient LEP Guidance identifies the appropriate framework through 
which costs are to be considered.
    In addition to the four larger concerns noted above, the Department 
has substituted, where appropriate, technical or stylistic changes that 
more clearly articulate, in the Department's view, the underlying 
principle, guideline, or recommendation detailed in the Guidance. In 
addition, the Guidance has been modified to expand the definition of 
``courts'' to include administrative adjudications conducted by a 
recipient; to acknowledge that English language instruction is an 
important adjunct to (but not substitute for) the obligation to ensure 
access to Federally assisted programs and activities by all eligible 
persons; and to clarify the Guidance's application to activities 
undertaken by a recipient either voluntarily or under contract in 
support of a Federal agency's functions.
    After appropriate revision based on a careful consideration of the 
comments, with particular focus on the common concerns summarized 
above, the Department adopts final ``Guidance to Federal Financial 
Assistance Recipients Regarding Title VI Prohibition Against National 
Origin Discrimination Affecting Limited English Proficient Persons.'' 
The text of this final guidance document appears below.
    It has been determined that this Guidance, which supplants existing 
Guidance on the same subject previously published at 66 FR 3834 
(January 16, 2001), does not constitute a regulation subject to the 
rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. 
553.

    Dated: June 12, 2002.
R. Alexander Acosta,
Principal Deputy Assistant Attorney General, Civil Rights Division.

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.'' While 
detailed data from the 2000 census has not yet been released, 26% of 
all Spanish-speakers, 29.9% of all Chinese-speakers, and 28.2% of all 
Vietnamese-speakers reported that they spoke English ``not well'' or 
``not at all'' in response to the 1990 census.
    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. 
The Federal Government funds an array of services that can be made 
accessible to otherwise eligible LEP persons. The Federal Government is 
committed to improving the accessibility of these 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 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.\1\
---------------------------------------------------------------------------

    \1\ DOJ 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 and possibly additional reasonable 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.
---------------------------------------------------------------------------

    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 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.\2\ These are the same 
criteria DOJ will use in evaluating whether recipients are in 
compliance with Title VI and Title VI regulations.
---------------------------------------------------------------------------

    \2\ 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.
---------------------------------------------------------------------------

    The Department of Justice's role under Executive Order 13166 is 
unique. The 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

[[Page 41458]]

Guidance is designed to address. As with most government initiatives, 
this requires balancing several principles. 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 choose not to participate in Federally assisted 
programs, threatening the critical functions that the programs strive 
to provide. To that end, the Department plans to continue to provide 
assistance and guidance in this important area. In addition, DOJ plans 
to work with representatives of law enforcement, corrections, courts, 
administrative agencies, and LEP persons to identify and share model 
plans, examples of best practices, and cost-saving approaches. 
Moreover, DOJ intends to explore how language assistance measures, 
resources and cost-containment approaches developed with respect to its 
own Federally conducted programs and activities can be effectively 
shared or otherwise made available to recipients, particularly small 
businesses, small local governments, and small non-profits. An 
interagency working group on LEP has developed a Web site, 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 regulations promulgated under Title VI that form the basis for the 
part of Executive Order 13166 that applies to Federally assisted 
programs and activities. We have taken the position that this is not 
the case, and will continue to do so. Accordingly, we will strive to 
ensure that Federally assisted programs and activities work in a way 
that is effective for all eligible beneficiaries, including those with 
limited English proficiency.

II. 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.'' 42 U.S.C. 2000d-1.
    Department of Justice regulations promulgated pursuant to section 
602 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.'' 28 CFR 42.104(b)(2).
    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 DOJ, 
45 CFR 80.3(b)(2), 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] an individual in any way in the 
enjoyment of any advantage or privilege enjoyed by others receiving any 
service, financial aid, or other benefit under the program'' or 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.''
    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'').
    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.\3\ 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.
---------------------------------------------------------------------------

    \3\ 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 ' Sec. 601 * * * when Sec. 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 address 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.
---------------------------------------------------------------------------

    Pursuant to Executive Order 13166, DOJ developed its own guidance 
document for recipients and initially

[[Page 41459]]

issued it on January 16, 2001. ``Guidance to Federal Financial 
Assistance Recipients Regarding Title VI Prohibition Against National 
Origin Discrimination Affecting Limited English Proficient Persons,'' 
66 FR 3834 (January 16, 2001) (``LEP Guidance for DOJ Recipients''). 
Because DOJ did not receive significant public comment on its January 
16, 2001 publication, the Department republished on January 18, 2002 
its existing guidance document for additional public comment. 
``Guidance to Federal Financial Assistance Recipients Regarding Title 
VI Prohibition Against National Origin Discrimination Affecting Limited 
English Proficient Persons,'' 67 FR 2671 (January 18, 2002). The 
Department has since received substantial public comment.
    This guidance document is thus published pursuant to Executive 
Order 13166 and supplants the January 16, 2001 publication in light of 
the public comment received and Assistant Attorney General Boyd's 
October 26, 2001 clarifying memorandum.

III. Who Is Covered?

    Department of Justice regulations, 28 CFR 42.104(b)(2), require all 
recipients of Federal financial assistance from DOJ to provide 
meaningful access to LEP persons.\4\ Federal financial assistance 
includes grants, training, use of equipment, donations of surplus 
property, and other assistance. Recipients of DOJ assistance include, 
for example:
---------------------------------------------------------------------------

    \4\ Pursuant to Executive Order 13166, the meaningful access 
requirement of the Title VI regulations and the four-factor analysis 
set forth in the DOJ LEP Guidance are to additionally apply to the 
programs and activities of Federal agencies, including the 
Department of Justice.

 Police and sheriffs' departments
 Departments of corrections, jails, and detention facilities, 
including those recipients that house detainees of the Immigration and 
Naturalization Service
 Courts \5\
---------------------------------------------------------------------------

    \5\ As used in this guidance, the word ``court'' or ``courts'' 
includes administrative adjudicatory systems or administrative 
hearings administered or conducted by a recipient.
---------------------------------------------------------------------------

 Certain non profit agencies with law enforcement, public 
safety, and victim assistance missions;
 Other entities with public safety and emergency service 
missions.
    Subrecipients likewise are covered when Federal funds are passed 
through from one recipient to a subrecipient.

    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.\6\
---------------------------------------------------------------------------

    \6\ However, if a Federal agency were to decide to terminate 
Federal funds based on noncompliance with Title VI or its 
regulations, only funds directed to the particular program or 
activity that is out of compliance would be terminated. 42 U.S.C. 
2000d-1.
---------------------------------------------------------------------------

    Example: DOJ provides assistance to a state department of 
corrections to improve a particular prison facility. All of the 
operations of the entire state department of corrections--not just the 
particular prison--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,'' 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 DOJ recipients and should be considered 
when planning language services include, but are not limited to:

     Persons who are in the custody of the recipient, including 
juveniles, detainees, wards, and inmates.
     Persons subject to or serviced by law enforcement 
activities, including, for example, suspects, violators, witnesses, 
victims, those subject to immigration-related investigations by 
recipient law enforcement agencies, and community members seeking to 
participate in crime prevention or awareness activities.
     Persons who encounter the court system.
     Parents and family members of the above.

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 a flexible and fact-dependent standard, 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. As 
indicated above, 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 business, 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. DOJ 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. Ordinarily, persons 
``eligible to be served, or likely to be directly affected, by'' a 
recipient's program or activity are those who are served or encountered 
in the eligible service population. 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 precinct serves a large LEP 
population, the appropriate service area is most likely the precinct, 
and not the entire population 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

[[Page 41460]]

recipient itself, provided that these designations do not themselves 
discriminatorily exclude certain populations. Appendix A provides 
examples to assist in determining the relevant service area. 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 the legal 
system.
    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.\7\ 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 
and activities were language services provided.
---------------------------------------------------------------------------

    \7\ 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 that 
language who speak or understand English less than well. Some of the 
most commonly spoken languages other than English may be spoken by 
people who are also overwhelmingly proficient in English. Thus, they 
may not be the languages spoken most frequently by limited English 
proficient individuals. When using demographic data, it is important 
to focus in on the languages spoken by those who are not proficient 
in English.
---------------------------------------------------------------------------

(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 an LEP individual 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 rights to a person who is arrested or to 
provide medical services to an ill or injured inmate differ, for 
example, from those to provide bicycle safety courses or recreational 
programming. 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 compulsory, such as 
particular educational programs in a correctional facility or the 
communication of Miranda rights, 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.\8\ 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.
---------------------------------------------------------------------------

    \8\ 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''). Oral interpretation can 
range from 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

[[Page 41461]]

instance, a police department in a largely Hispanic neighborhood may 
need immediate oral interpreters available and should give serious 
consideration to hiring some bilingual staff. (Of course, many police 
departments have already made such arrangements.) 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 courthouse--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 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; \9\ 
and 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.
---------------------------------------------------------------------------

    \9\ 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 which 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 
likely 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.
---------------------------------------------------------------------------

    Understand and adhere to their role as interpreters without 
deviating into a role as counselor, legal advisor, or other roles 
(particularly in court, administrative hearings, or law enforcement 
contexts).
    Some recipients, such as courts, may have additional self-imposed 
requirements for interpreters. Where individual rights depend on 
precise, complete, and accurate interpretation or translations, 
particularly in the contexts of courtrooms and custodial or other 
police interrogations, the use of certified interpreters is strongly 
encouraged.\10\ 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.
---------------------------------------------------------------------------

    \10\ For those languages in which no formal accreditation or 
certification currently exists, courts and law enforcement agencies 
should consider a formal process for establishing the credentials of 
the interpreter.
---------------------------------------------------------------------------

    While quality and accuracy of language services is critical, the 
quality and accuracy of language services is nonetheless part of the 
appropriate mix of LEP services required. The quality and accuracy of 
language services in a prison hospital emergency room, for example, 
must be extraordinarily high, while the quality and accuracy of 
language services in a bicycle safety class need not meet the same 
exacting standards.
    Finally, when interpretation is needed and is reasonable, it should 
be provided in a timely manner. To be meaningfully effective, language 
assistance should be timely. 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 DOJ recipients providing 
law enforcement, 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, such as 911 operators, police officers, guards, or program 
directors, 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 
a courtroom 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.

[[Page 41462]]

    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 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, Friends, Other Inmates, or Other Detainees 
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, friend, other inmate, other detainee) 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, friend, or other inmate 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), friends, 
other inmates or other detainees 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, law enforcement (e.g., sexual or 
violent assaults), family, or financial information to a family member, 
friend, or member of the local community.\11\ In addition, such 
informal interpreters may have a personal connection to the LEP person 
or an undisclosed conflict of interest, such as the desire to protect 
themselves or another perpetrator in a domestic violence or other 
criminal matter. For these reasons, when oral language services are 
necessary, recipients should generally offer competent interpreter 
services free of cost to the LEP person. For DOJ recipient programs and 
activities, this is particularly true in a courtroom, administrative 
hearing, pre- and post-trial proceedings, situations in which health, 
safety, or access to important benefits and services are at stake, or 
when credibility and accuracy are important to protect an individual's 
rights and access to important services.
---------------------------------------------------------------------------

    \11\ For example, special circumstances of confinement may raise 
additional serious concerns regarding the voluntary nature, 
conflicts of interest, and privacy issues surrounding the use of 
inmates and detainees as interpreters, particularly where an 
important right, benefit, service, disciplinary concern, or access 
to personal or law enforcement information is at stake. In some 
situations, inmates could potentially misuse information they 
obtained in interpreting for other inmates. In addition to ensuring 
competency and accuracy of the interpretation, recipients should 
take these special circumstances into account when determining 
whether an inmate or detainee makes a knowing and voluntary choice 
to use another inmate or detainee as an interpreter.
---------------------------------------------------------------------------

    An example of such a case is when police officers respond to a 
domestic violence call. In such a case, use of family members or 
neighbors to interpret for the alleged victim, perpetrator, or 
witnesses may raise serious issues of competency, confidentiality, and 
conflict of interest and is thus inappropriate. While issues of 
competency, confidentiality, and conflict of interest in the use of 
family members (especially children), friends, other inmates or other 
detainees 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 a courthouse 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,

[[Page 41463]]

and accurate interpretations or translations of information and/or 
testimony are critical for law 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 
(source language) into an equivalent written text in another language 
(target 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, parole, and other hearings
 Notices of disciplinary action
 Notices advising LEP persons of free language assistance
 Prison rule books
 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
 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 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 bicycle safety courses 
should not generally be considered vital, whereas applications for drug 
and alcohol counseling in prison 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. It may also be 
the case when the title and a phone number for obtaining more 
information on the contents of the document in frequently-encountered 
languages other than English is critical, but the document is sent out 
to the general public and cannot reasonably be translated into many 
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 with whom the recipient has contact 
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 and sometimes over 100 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 a one-time expense, consideration 
should be given to whether the upfront cost of translating a document 
(as opposed to oral interpretation) should be amortized over the likely 
lifespan 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) 
outline the circumstances that can 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 mean there is non-
compliance. 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

[[Page 41464]]

provided by a fact-intensive, four-factor analysis.
    Example: 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. The following actions will be considered strong 
evidence of compliance with the recipient's written-translation 
obligations:
    (a) The DOJ recipient provides written translations of vital 
documents for each eligible LEP language group that constitutes five 
percent or 1,000, 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, correctional facilities should, where 
appropriate, ensure that prison rules have been explained to LEP 
inmates, at orientation, for instance, prior to taking disciplinary 
action against them.
    Competence of Translators. As with oral interpreters, translators 
of written documents should be competent. Many of the same 
considerations apply. 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 use of certified 
translators. Certification or accreditation may not always be possible 
or necessary.\12\ 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.''
---------------------------------------------------------------------------

    \12\ 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.
---------------------------------------------------------------------------

    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.\13\ Community organizations may be able to 
help consider whether a document is written at a good level for the 
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.
---------------------------------------------------------------------------

    \13\ For instance, there may be languages which do not have an 
appropriate direct translation of some courtroom or legal terms and 
the translator should be able to provide an appropriate translation. 
The translator should likely also make the recipient aware of this. 
Recipients can then work with translators to develop a consistent 
and appropriate set of descriptions of these terms in that language 
that can be used again, when appropriate. Recipients will find it 
more effective and less costly if they try to maintain consistency 
in the words and phrases used to translate terms of art and legal or 
other technical concepts. 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 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 
quality and accuracy of translation services is nonetheless part of the 
appropriate mix of LEP services required. 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 (including, e.g., information or documents of 
DOJ recipients regarding certain law enforcement, health, and safety 
services and certain legal rights). 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 and maintenance 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 DOJ 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

[[Page 41465]]

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 interpreters 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 (or those in a 
recipient's custody) 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.

(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 intake areas and other entry 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 law enforcement services or 
activities run by DOJ recipients. For instance, signs in intake 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.\14\
---------------------------------------------------------------------------

    \14\ 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.
---------------------------------------------------------------------------

     Stating in outreach documents that language services are 
available from the agency. 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 viable.
    In addition to these five elements, 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 DOJ through the 
procedures identified in the Title VI regulations. These procedures 
include complaint

[[Page 41466]]

investigations, compliance reviews, efforts to secure voluntary 
compliance, and technical assistance.
    The Title VI regulations provide that DOJ will investigate whenever 
it receives a complaint, report, or other information that alleges or 
indicates possible noncompliance with Title VI or its regulations. If 
the investigation results in a finding of compliance, DOJ will inform 
the recipient in writing of this determination, including the basis for 
the determination. DOJ uses voluntary mediation to resolve most 
complaints. However, if a case is fully investigated and results in a 
finding of noncompliance, DOJ 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. It must attempt to secure voluntary compliance through 
informal means. If the matter cannot be resolved informally, DOJ must 
secure compliance through the termination of Federal assistance after 
the DOJ recipient has been given an opportunity for an administrative 
hearing and/or by referring the matter to a DOJ litigation section to 
seek injunctive relief or pursue other enforcement proceedings. DOJ 
engages in voluntary compliance efforts and provides technical 
assistance to recipients at all stages of an investigation. During 
these efforts, DOJ proposes reasonable timetables for achieving 
compliance and consults with and assists recipients in exploring cost-
effective ways of coming into compliance. In determining a recipient's 
compliance with the Title VI regulations, DOJ'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 must work toward building systems that will 
ensure access for LEP individuals, DOJ 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, DOJ will 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, DOJ 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. Application to Specific Types of Recipients

    Appendix A of this Guidance provides examples of how the meaningful 
access requirement of the Title VI regulations applies to law 
enforcement, corrections, courts, and other recipients of DOJ 
assistance.

A. State and Local Law Enforcement

    Appendix A further explains how law enforcement recipients can 
apply the four factors to a range of encounters with the public. The 
responsibility for providing language services differs with different 
types of encounters.
    Appendix A helps recipients identify the population they should 
consider when considering the types of services to provide. It then 
provides guidance and examples of applying the four factors. For 
instance, it gives examples on how to apply this guidance to:

 Receiving and responding to requests for help
 Enforcement stops short of arrest and field investigations
 Custodial interrogations
 Intake/detention Community outreach

B. Departments of Corrections

    Appendix A also helps departments of corrections understand how to 
apply the four factors. For instance, it gives examples of LEP access 
in:

 Intake
 Disciplinary action
 Health and safety
 Participation in classes or other programs affecting length of 
sentence
 English as a Second Language (ESL) Classes
 Community corrections programs

C. Other Types of Recipients

    Appendix A also applies the four factors and gives examples for 
other types of recipients. Those include, for example:

 Courts
 Juvenile Justice Programs
 Domestic Violence Prevention/Treatment Programs

Appendix A--Application of LEP Guidance for DOJ Recipients to Specific 
Types of Recipients

    While a wide range of entities receive Federal financial 
assistance through DOJ, most of DOJ's assistance goes to law 
enforcement agencies, including state and local police and sheriffs' 
departments, and to state departments of corrections. Sections A and 
B below provide examples of how these two major types of DOJ 
recipients might apply the four-factor analysis. Section C provides 
examples for other types of recipients. The examples in this 
Appendix are not meant to be exhaustive and may not apply in many 
situations.
    The requirements of the Title VI regulations, as clarified by 
this Guidance, supplement, but do not supplant, constitutional and 
other statutory or regulatory provisions that may require LEP 
services. Thus, a proper application of the four-factor analysis and 
compliance with the Title VI regulations does not replace 
constitutional or other statutory protections mandating warnings and 
notices in languages other than English in the criminal justice 
context. Rather, this Guidance clarifies the Title VI regulatory 
obligation to address, in appropriate circumstances and in a 
reasonable manner, the language assistance needs of LEP individuals 
beyond those required by the Constitution or statutes and 
regulations other than the Title VI regulations.

A. State and Local Law Enforcement

    For the vast majority of the public, exposure to law enforcement 
begins and ends with interactions with law enforcement personnel 
discharging their duties while on patrol, responding to a request 
for services, talking to witnesses, or conducting community outreach 
activities. For a much smaller number, that exposure includes a 
visit to a station house. And for an important but even smaller 
number, that visit to the station house results in one's exposure to 
the criminal justice, judicial, or juvenile justice systems.
    The common thread running through these and other interactions 
between the public and law enforcement is the exchange of 
information. Where police and sheriffs' departments receive Federal 
financial assistance, these departments have an obligation to 
provide LEP services to LEP individuals to ensure that they have 
meaningful access to the system, including, for example, 
understanding rights and accessing police assistance. Language 
barriers can, for instance, prevent victims from effectively 
reporting crimes to the police and hinder police investigations of 
reported crimes. For example, failure to communicate effectively 
with a victim of domestic violence can result in reliance on the 
batterer or a minor child and failure to identify and protect 
against harm.
    Many police and sheriffs' departments already provide language 
services in a wide variety of circumstances to obtain information 
effectively, to build trust and

[[Page 41467]]

relationships with the community, and to contribute to the safety of 
law enforcement personnel. For example, many police departments 
already have available printed Miranda rights in languages other 
than English as well as interpreters available to inform LEP persons 
of their rights and to interpret police interviews.\1\ In areas 
where significant LEP populations reside, law enforcement officials 
already may have forms and notices in languages other than English 
or they may employ bilingual law enforcement officers, intake 
personnel, counselors, and support staff. These experiences can form 
a strong basis for applying the four-factor analysis and complying 
with the Title VI regulations.
---------------------------------------------------------------------------

    \1\ The Department's Federal Bureau of Investigation makes 
written versions of those rights available in several different 
languages. Of course, where literacy is of concern, these are most 
useful in assisting an interpreter in using consistent terms when 
providing Miranda warnings orally.
---------------------------------------------------------------------------

1. General Principles

    The touchstone of the four-factor analysis is reasonableness 
based upon the specific purposes, needs, and capabilities of the law 
enforcement service under review and an appreciation of the nature 
and particularized needs of the LEP population served. Accordingly, 
the analysis cannot provide a single uniform answer on how service 
to LEP persons must be provided in all programs or activities in all 
situations or whether such service need be provided at all. 
Knowledge of local conditions and community needs becomes critical 
in determining the type and level of language services needed.
    Before giving specific examples, several general points should 
assist law enforcement in correctly applying the analysis to the 
wide range of services employed in their particular jurisdictions.

a. Permanent Versus Seasonal Populations

    In many communities, resident populations change over time or 
season. For example, in some resort communities, populations swell 
during peak vacation periods, many times exceeding the number of 
permanent residents of the jurisdiction. In other communities, 
primarily agricultural areas, transient populations of workers will 
require increased law enforcement services during the relevant 
harvest season. This dynamic demographic ebb and flow can also 
dramatically change the size and nature of the LEP community likely 
to come into contact with law enforcement personnel. Thus, law 
enforcement officials may not want to limit their analysis to 
numbers and percentages of permanent residents. In assessing factor 
one--the number or proportion of LEP individuals--police departments 
should consider any significant but temporary changes in a 
jurisdiction's demographics.

    Example: A rural jurisdiction has a permanent population of 
30,000, 7% of which is Hispanic. Based on demographic data and on 
information from the contiguous school district, of that number, 
only 15% are estimated to be LEP individuals. Thus, the total 
estimated permanent LEP population is 315 or approximately 1% of the 
total permanent population. Under the four-factor analysis, a 
sheriffs' department could reasonably conclude that the small number 
of LEP persons makes the affirmative translation of documents and/or 
employment of bilingual staff unnecessary. However, during the 
spring and summer planting and harvest seasons, the local population 
swells to 40,000 due to the influx of seasonal agricultural workers. 
Of this transitional number, about 75% are Hispanic and about 50% of 
that number are LEP individuals. This information comes from the 
schools and a local migrant worker community group. Thus, during the 
harvest season, the jurisdiction's LEP population increases to over 
10% of all residents. In this case, the department may want to 
consider whether it is required to translate vital written documents 
into Spanish. In addition, this increase in LEP population during 
those seasons makes it important for the jurisdiction to review its 
interpretation services to ensure meaningful access for LEP 
individuals.

b. Target Audiences

    For most law enforcement services, the target audience is 
defined in geographic rather than programmatic terms. However, some 
services may be targeted to reach a particular audience (e.g., 
elementary school children, elderly, residents of high crime areas, 
minority communities, small business owners/operators). Also, within 
the larger geographic area covered by a police department, certain 
precincts or portions of precincts may have concentrations of LEP 
persons. In these cases, even if the overall number or proportion of 
LEP individuals in the district is low, the frequency of contact may 
be foreseeably higher for certain areas or programs. Thus, the 
second factor--frequency of contact--should be considered in light 
of the specific program or the geographic area being served.

    Example: A police department that receives funds from the DOJ 
Office of Justice Programs initiates a program to increase awareness 
and understanding of police services among elementary school age 
children in high crime areas of the jurisdiction. This program 
involves ``Officer in the Classroom'' presentations at elementary 
schools located in areas of high poverty. The population of the 
jurisdiction is estimated to include only 3% LEP individuals. 
However, the LEP population at the target schools is 35%, the vast 
majority of whom are Vietnamese speakers. In applying the four-
factor analysis, the higher LEP language group populations of the 
target schools and the frequency of contact within the program with 
LEP students in those schools, not the LEP population generally, 
should be used in determining the nature of the LEP needs of that 
particular program. Further, because the Vietnamese LEP population 
is concentrated in one or two main areas of town, the police 
department should consider whether to apply the four-factor analysis 
to other services provided by the police department.

c. Importance of Service/Information

    Given the critical role law enforcement plays in maintaining 
quality of life and property, traditional law enforcement and 
protective services rank high on the critical/non-critical 
continuum. However, this does not mean that information about, or 
provided by, each of the myriad services and activities performed by 
law enforcement officials must be equally available in languages 
other than English. While clearly important to the ultimate success 
of law enforcement, certain community outreach activities do not 
have the same direct impact on the provision of core law enforcement 
services as the activities of 911 lines or law enforcement 
officials' ability to respond to requests for assistance while on 
patrol, to communicate basic information to suspects, etc. 
Nevertheless, with the rising importance of community partnerships 
and community-based programming as a law enforcement technique, the 
need for language services with respect to these programs should be 
considered in applying the four-factor analysis.

d. Interpreters

    Just as with other recipients, law enforcement recipients have a 
variety of options for providing language services. Under certain 
circumstances, when interpreters are required and recipients should 
provide competent interpreter services free of cost to the LEP 
person, LEP persons should be advised that they may choose either to 
secure the assistance of an interpreter of their own choosing, at 
their own expense, or a competent interpreter provided by the 
recipient.
    If the LEP person decides to provide his or her own interpreter, 
the provision of this choice to the LEP person and the LEP person's 
election should be documented in any written record generated with 
respect to the LEP person. While an LEP person may sometimes look to 
bilingual family members or friends or other persons with whom they 
are comfortable for language assistance, there are many situations 
where an LEP person might want to rely upon recipient-supplied 
interpretative services. For example, such individuals may not be 
available when and where they are needed, or may not have the 
ability to interpret program-specific technical information. 
Alternatively, an individual may feel uncomfortable revealing or 
describing sensitive, confidential, or potentially embarrassing 
medical, law enforcement (e.g., sexual or violent assaults), family, 
or financial information to a family member, friend, or member of 
the local community. Similarly, there may be situations where a 
recipient's own interests justify the provision of an interpreter 
regardless of whether the LEP individual also provides his or her 
own interpreter. For example, where precise, complete and accurate 
translations of information and/or testimony are critical for law 
enforcement, adjudicatory or legal reasons, a recipient might decide 
to provide its own, independent interpreter, even if an LEP person 
wants to use their own interpreter as well.
    In emergency situations that are not reasonably foreseeable, the 
recipient may have to temporarily rely on non-recipient-provided 
language services. Reliance on children is especially discouraged 
unless

[[Page 41468]]

there is an extreme emergency and no preferable interpreters are 
available.
    While all language services need to be competent, the greater 
the potential consequences, the greater the need to monitor 
interpretation services for quality. For instance, it is important 
that interpreters in custodial interrogations be highly competent to 
translate legal and other law enforcement concepts, as well as be 
extremely accurate in their interpretation. It may be sufficient, 
however, for a desk clerk who is bilingual but not skilled at 
interpreting to help an LEP person figure out to whom he or she 
needs to talk about setting up a neighborhood watch.

2. Applying the Four-Factor Analysis Along the Law Enforcement 
Continuum

    While all police activities are important, the four-factor 
analysis requires some prioritizing so that language services are 
targeted where most needed because of the nature and importance of 
the particular law enforcement activity involved. In addition, 
because of the ``reasonableness'' standard, and frequency of contact 
and resources/costs factors, the obligation to provide language 
services increases where the importance of the activity is greater.
    Under this framework, then, critical areas for language 
assistance could include 911 calls, custodial interrogation, and 
health and safety issues for persons within the control of the 
police. These activities should be considered the most important 
under the four-factor analysis. Systems for receiving and 
investigating complaints from the public are important. Often very 
important are routine patrol activities, receiving non-emergency 
information regarding potential crimes, and ticketing. Community 
outreach activities are hard to categorize, but generally they do 
not rise to the same level of importance as the other activities 
listed. However, with the importance of community partnerships and 
community-based programming as a law enforcement technique, the need 
for language services with respect to these programs should be 
considered in applying the four-factor analysis. Police departments 
have a great deal of flexibility in determining how to best address 
their outreach to LEP populations.

a. Receiving and Responding to Requests for Assistance

    LEP persons must have meaningful access to police services when 
they are victims of or witnesses to alleged criminal activity. 
Effective reporting systems transform victims, witnesses, or 
bystanders into assistants in law enforcement and investigation 
processes. Given the critical role the public plays in reporting 
crimes or directing limited law enforcement resources to time-
sensitive emergency or public safety situations, efforts to address 
the language assistance needs of LEP individuals could have a 
significant impact on improving responsiveness, effectiveness, and 
safety.
    Emergency service lines for the public, or 911 lines, operated 
by agencies that receive Federal financial assistance must be 
accessible to persons who are LEP. This will mean different things 
to different jurisdictions. For instance, in large cities with 
significant LEP communities, the 911 line may have operators who are 
bilingual and capable of accurately interpreting in high stress 
situations. Smaller cities or areas with small LEP populations 
should still have a plan for serving callers who are LEP, but the 
LEP plan and implementation may involve a telephonic interpretation 
service that is fast enough and reliable enough to attend to the 
emergency situation, or include some other accommodation short of 
hiring bilingual operators.

    Example: A large city provides bilingual operators for the most 
frequently encountered languages, and uses a commercial telephone 
interpretation service when it receives calls from LEP persons who 
speak other languages. Ten percent of the city's population is LEP, 
and sixty percent of the LEP population speaks Spanish. In addition 
to 911 service, the city has a 311 line for non-emergency police 
services. The 311 Center has Spanish speaking operators available, 
and uses a language bank, staffed by the city's bilingual city 
employees who are competent translators, for other non-English-
speaking callers. The city also has a campaign to educate non-
English speakers when to use 311 instead of 911. These actions 
constitute strong evidence of compliance.

b. Enforcement Stops Short of Arrest and Field Investigations

    Field enforcement includes, for example, traffic stops, 
pedestrian stops, serving warrants and restraining orders, Terry 
stops, activities in aid of other jurisdictions or Federal agencies 
(e.g., fugitive arrests or INS detentions), and crowd/traffic 
control. Because of the diffuse nature of these activities, the 
reasonableness standard allows for great flexibility in providing 
meaningful access. Nevertheless, the ability of law enforcement 
agencies to discharge fully and effectively their enforcement and 
crime interdiction mission requires the ability to communicate 
instructions, commands, and notices. For example, a routine traffic 
stop can become a difficult situation if an officer is unable to 
communicate effectively the reason for the stop, the need for 
identification or other information, and the meaning of any written 
citation. Requests for consent to search are meaningless if the 
request is not understood. Similarly, crowd control commands will be 
wholly ineffective where significant numbers of people in a crowd 
cannot understand the meaning of law enforcement commands.
    Given the wide range of possible situations in which law 
enforcement in the field can take place, it is impossible to equip 
every officer with the tools necessary to respond to every possible 
LEP scenario. Rather, in applying the four factors to field 
enforcement, the goal should be to implement measures addressing the 
language needs of significant LEP populations in the most likely, 
common, and important situations, as consistent with the recipients' 
resources and costs.

    Example: A police department serves a jurisdiction with a 
significant number of LEP individuals residing in one or more 
precincts, and it is routinely asked to provide crowd control 
services at community events or demonstrations in those precincts. 
If it is otherwise consistent with the requirements of the four-
factor analysis, the police department should assess how it will 
discharge its crowd control duties in a language-appropriate manner. 
Among the possible approaches are plans to assign bilingual 
officers, basic language training of all officers in common law 
enforcement commands, the use of devices that provide audio commands 
in the predictable languages, or the distribution of translated 
written materials for use by officers.
    Field investigations include neighborhood canvassing, witness 
identification and interviewing, investigative or Terry stops, and 
similar activities designed to solicit and obtain information from 
the community or particular persons. Encounters with LEP individuals 
will often be less predictable in field investigations. However, the 
jurisdiction should still assess the potential for contact with LEP 
individuals in the course of field investigations and investigative 
stops, identify the LEP language group(s) most likely to be 
encountered, and provide, if it is consistent with the four-factor 
analysis, its officers with sufficient interpretation and/or 
translation resources to ensure that lack of English proficiency 
does not impede otherwise proper investigations or unduly burden LEP 
individuals.
    Example: A police department in a moderately large city includes 
a precinct that serves an area which includes significant LEP 
populations whose native languages are Spanish, Korean, and Tagalog. 
Law enforcement officials could reasonably consider the adoption of 
a plan assigning bilingual investigative officers to the precinct 
and/or creating a resource list of department employees competent to 
interpret and ready to assist officers by phone or radio. This could 
be combined with developing language-appropriate written materials, 
such as consents to searches or statements of rights, for use by its 
officers where LEP individuals are literate in their languages. In 
certain circumstances, it may also be helpful to have telephonic 
interpretation service access where other options are not successful 
and safety and availability of phone access permit.
    Example: A police department receives Federal financial 
assistance and serves a predominantly Hispanic neighborhood. It 
routinely sends officers on domestic violence calls. The police 
department is in a state in which English has been declared the 
official language. The police therefore determine that they cannot 
provide language services to LEP persons. Thus, when the victim of 
domestic violence speaks only Spanish and the perpetrator speaks 
English, the officers have no way to speak with the victim so they 
only get the perpetrator's side of the story. The failure to 
communicate effectively with the victim results in further abuse and 
failure to charge the batterer. The police department should be 
aware that despite the state's official English law, the Title VI 
regulations apply to it. Thus, the police department should provide 
meaningful access for LEP persons.

[[Page 41469]]

c. Custodial Interrogations

    Custodial interrogations of unrepresented LEP individuals 
trigger constitutional rights that this Guidance is not designed to 
address. Given the importance of being able to communicate 
effectively under such circumstances, law enforcement recipients 
should ensure competent and free language services for LEP 
individuals in such situations. Law enforcement agencies are 
strongly encouraged to create a written plan on language assistance 
for LEP persons in this area. In addition, in formulating a plan for 
effectively communicating with LEP individuals, agencies should 
strongly consider whether qualified independent interpreters would 
be more appropriate during custodial interrogations than law 
enforcement personnel themselves.\2\
---------------------------------------------------------------------------

    \2\ Some state laws prohibit police officers from serving as 
interpreters during custodial interrogation of suspects.
---------------------------------------------------------------------------

    Example: A large city police department institutes an LEP plan 
that requires arresting officers to procure a qualified interpreter 
for any custodial interrogation, notification of rights, or taking 
of a formal statement where the suspect's legal rights could be 
adversely impacted. When considering whether an interpreter is 
qualified, the LEP plan discourages use of police officers as 
interpreters in interrogations except under circumstances in which 
the LEP individual is informed of the officer's dual role and the 
reliability of the interpretation is verified, such as, for example, 
where the officer has been trained and tested in interpreting and 
tape recordings are made of the entire interview. In determining 
whether an interpreter is qualified, the jurisdiction uses the 
analysis noted above. These actions would constitute strong evidence 
of compliance.

d. Intake/Detention

    State or local law enforcement agencies that arrest LEP persons 
should consider the inherent communication impediments to gathering 
information from the LEP arrestee through an intake or booking 
process. Aside from the basic information, such as the LEP 
arrestee's name and address, law enforcement agencies should 
evaluate their ability to communicate with the LEP arrestee about 
his or her medical condition. Because medical screening questions 
are commonly used to elicit information on the arrestee's medical 
needs, suicidal inclinations, presence of contagious diseases, 
potential illness, resulting symptoms upon withdrawal from certain 
medications, or the need to segregate the arrestee from other 
prisoners, it is important for law enforcement agencies to consider 
how to communicate effectively with an LEP arrestee at this stage. 
In jurisdictions with few bilingual officers or in situations where 
the LEP person speaks a language not encountered very frequently, 
telephonic interpretation services may provide the most cost 
effective and efficient method of communication.

e. Community Outreach

    Community outreach activities increasingly are recognized as 
important to the ultimate success of more traditional duties. Thus, 
an application of the four-factor analysis to community outreach 
activities can play an important role in ensuring that the purpose 
of these activities (to improve police/community relations and 
advance law enforcement objectives) is not thwarted due to the 
failure to address the language needs of LEP persons.
    Example: A police department initiates a program of domestic 
counseling in an effort to reduce the number or intensity of 
domestic violence interactions. A review of domestic violence 
records in the city reveals that 25% of all domestic violence 
responses are to minority areas and 30% of those responses involve 
interactions with one or more LEP persons, most of whom speak the 
same language. After completing the four-factor analysis, the 
department should take reasonable steps to make the counseling 
accessible to LEP individuals. For instance, the department could 
seek bilingual counselors (for whom they provided training in 
translation) for some of the counseling positions. In addition, the 
department could have an agreement with a local university in which 
bilingual social work majors who are competent in interpreting, as 
well as language majors who are trained by the department in basic 
domestic violence sensitivity and counseling, are used as 
interpreters when the in-house bilingual staff cannot cover the 
need. Interpreters under such circumstances should sign a 
confidentiality agreement with the department. These actions 
constitute strong evidence of compliance.
    Example: A large city has initiated an outreach program designed 
to address a problem of robberies of Vietnamese homes by Vietnamese 
gangs. One strategy is to work with community groups and banks and 
others to help allay traditional fears in the community of putting 
money and other valuables in banks. Because a large portion of the 
target audience is Vietnamese speaking and LEP, the department 
contracts with a bilingual community liaison competent in the skill 
of translating to help with outreach activities. This action 
constitutes strong evidence of compliance.

B. Departments of Corrections/Jails/Detention Centers

    Departments of corrections that receive Federal financial 
assistance from DOJ must provide LEP prisoners \3\ with meaningful 
access to benefits and services within the program. In order to do 
so, corrections departments, like other recipients, must apply the 
four-factor analysis.
---------------------------------------------------------------------------

    \3\ In this Guidance, the terms ``prisoners'' or ``inmates'' 
include all of those individuals, including Immigration and 
Naturalization Service (INS) detainees and juveniles, who are held 
in a facility operated by a recipient. Certain statutory, 
regulatory, or constitutional mandates/rights may apply only to 
juveniles, such as educational rights, including those for students 
will disabilities or limited English proficiency. Because a decision 
by a recipient or a federal, state, or local entity to make an 
activity compulsory serves as strong evidence of the program's 
importance, the obligation to provide language services may differ 
depending upon whether the LEP person is a juvenile or an adult 
inmate.
---------------------------------------------------------------------------

1. General Principles

    Departments of corrections also have a wide variety of options 
in providing translation services appropriate to the particular 
situation. Bilingual staff competent in interpreting, in person or 
by phone, pose one option. Additionally, particular prisons may have 
agreements with local colleges and universities, interpreter 
services, and/or community organizations to provide paid or 
volunteer competent translators under agreements of confidentiality 
and impartiality. Telephonic interpretation services may offer a 
prudent oral interpreting option for prisons with very few and/or 
infrequent prisoners in a particular language group. Reliance on 
fellow prisoners is generally not appropriate. Reliance on fellow 
prisoners should only be an option in unforeseeable emergency 
circumstances; when the LEP inmate signs a waiver that is in his/her 
language and in a form designed for him/her to understand; or where 
the topic of communication is not sensitive, confidential, 
important, or technical in nature and the prisoner is competent in 
the skill of interpreting.
    In addition, a department of corrections that receives Federal 
financial assistance would be ultimately responsible for ensuring 
that LEP inmates have meaningful access within a prison run by a 
private or other entity with which the department has entered into a 
contract. The department may provide the staff and materials 
necessary to provide required language services, or it may choose to 
require the entity with which it contracted to provide the services 
itself.

2. Applying the Four Factors Along the Corrections Continuum

    As with law enforcement activities, critical and predictable 
contact with LEP individuals poses the greatest obligation for 
language services. Corrections facilities have somewhat greater 
abilities to assess the language needs of those they encounter, 
although inmate populations may change rapidly in some areas. 
Contact affecting health and safety, length of stay, and discipline 
likely present the most critical situations under the four-factor 
analysis.

a. Assessment

    Each department of corrections that receives Federal financial 
assistance should assess the number of LEP prisoners who are in the 
system, in which prisons they are located, and the languages he or 
she speaks. Each prisoner's LEP status, and the language he or she 
speaks, should be placed in his or her file. Although this Guidance 
and Title VI are not meant to address literacy levels, agencies 
should be aware of literacy problems so that LEP services are 
provided in a way that is meaningful and useful (e.g., translated 
written materials are of little use to a nonliterate inmate). After 
the initial assessment, new LEP prisoners should be identified at 
intake or orientation, and the data should be updated accordingly.

b. Intake/Orientation

    Intake/Orientation plays a critical role not merely in the 
system's identification of LEP prisoners, but in providing those 
prisoners with fundamental information about their

[[Page 41470]]

obligations to comply with system regulations, participate in 
education and training, receive appropriate medical treatment, and 
enjoy recreation. Even if only one prisoner doesn't understand 
English, that prisoner should likely be given the opportunity to be 
informed of the rules, obligations, and opportunities in a manner 
designed effectively to communicate these matters. An appropriate 
analogy is the obligation to communicate effectively with deaf 
prisoners, which is most frequently accomplished through sign 
language interpreters or written materials. Not every prison will 
use the same method for providing language assistance. Prisons with 
large numbers of Spanish-speaking LEP prisoners, for example, may 
choose to translate written rules, notices, and other important 
orientation material into Spanish with oral instructions, whereas 
prisons with very few such inmates may choose to rely upon a 
telephonic interpretation service or qualified community volunteers 
to assist.

    Example: The department of corrections in a state with a 5% 
Haitian Creole-speaking LEP corrections population and an 8% 
Spanish-speaking LEP population receives Federal financial 
assistance to expand one of its prisons. The department of 
corrections has developed an intake video in Haitian Creole and 
another in Spanish for all of the prisons within the department to 
use when orienting new prisoners who are LEP and speak one of those 
languages. In addition, the department provides inmates with an 
opportunity to ask questions and discuss intake information through 
either bilingual staff who are competent in interpreting and who are 
present at the orientation or who are patched in by phone to act as 
interpreters. The department also has an agreement whereby some of 
its prisons house a small number of INS detainees. For those 
detainees or other inmates who are LEP and do not speak Haitian 
Creole or Spanish, the department has created a list of sources for 
interpretation, including department staff, contract interpreters, 
university resources, and a telephonic interpretation service. Each 
person receives at least an oral explanation of the rights, rules, 
and opportunities. These actions constitute strong evidence of 
compliance. Example:
    A department of corrections that receives Federal financial 
assistance determines that, even though the state in which it 
resides has a law declaring English the official language, it should 
still ensure that LEP prisoners understand the rules, rights, and 
opportunities and have meaningful access to important information 
and services at the state prisons. Despite the state's official 
English law, the Title VI regulations apply to the department of 
corrections.

c. Disciplinary Action

    When a prisoner who is LEP is the subject of disciplinary 
action, the prison, where appropriate, should provide language 
assistance. That assistance should ensure that the LEP prisoner had 
adequate notice of the rule in question and is meaningfully able to 
understand and participate in the process afforded prisoners under 
those circumstances. As noted previously, fellow inmates should 
generally not serve as interpreters in disciplinary hearings.

d. Health and Safety

    Prisons providing health services should refer to the Department 
of Health and Human Services' guidance \4\ regarding health care 
providers' Title VI and Title VI regulatory obligations, as well as 
with this Guidance.
---------------------------------------------------------------------------

    \4\ A copy of that guidance can be found on the HHS Web site at 
http://www.hhs.gov/ocr/lep. and at http://www.usdoj.gov/crt/cor.
---------------------------------------------------------------------------

    Health care services are obviously extremely important. How 
access to those services is provided depends upon the four-factor 
analysis. If, for instance, a prison serves a high proportion of LEP 
individuals who speak Spanish, then the prison health care provider 
should likely have available qualified bilingual medical staff or 
interpreters versed in medical terms. If the population of LEP 
individuals is low, then the prison may choose instead, for example, 
to rely on a local community volunteer program that provides 
qualified interpreters through a university. Due to the private 
nature of medical situations, only in unpredictable emergency 
situations or in non-emergency cases where the inmate has waived 
rights to a non-inmate interpreter would the use of other bilingual 
inmates be appropriate.

e. Participation Affecting Length of Sentence

    If a prisoner's LEP status makes him/her unable to participate 
in a particular program, such a failure to participate should not be 
used to adversely impact the length of stay or significantly affect 
the conditions of imprisonment. Prisons have options in how to apply 
this standard. For instance, prisons could: (1) Make the program 
accessible to the LEP inmate; (2) identify or develop substitute or 
alternative, language-accessible programs, or (3) waive the 
requirement.

    Example: State law provides that otherwise eligible prisoners 
may receive early release if they take and pass an alcohol 
counseling program. Given the importance of early release, LEP 
prisoners should, where appropriate, be provided access to this 
prerequisite in some fashion. How that access is provided depends on 
the three factors other than importance. If, for example, there are 
many LEP prisoners speaking a particular language in the prison 
system, the class could be provided in that language for those 
inmates. If there were far fewer LEP prisoners speaking a particular 
language, the prison might still need to ensure access to this 
prerequisite because of the importance of early release 
opportunities. Options include, for example, use of bilingual 
teachers, contract interpreters, or community volunteers to 
interpret during the class, reliance on videos or written 
explanations in a language the inmate understands, and/or 
modification of the requirements of the class to meet the LEP 
individual's ability to understand and communicate.

f. ESL Classes

    States often mandate English-as-a-Second language (ESL) classes 
for LEP inmates. Nothing in this Guidance indicates how recipients 
should address such mandates. But recipients should not overlook the 
long-term positive impacts of incorporating or offering ESL programs 
in parallel with language assistance services as one possible 
strategy for ensuring meaningful access. ESL courses can serve as an 
important adjunct to a proper LEP plan in prisons because, as 
prisoners gain proficiency in English, fewer language services are 
needed. However, the fact that ESL classes are made available does 
not obviate the need to provide meaningful access for prisoners who 
are not yet English proficient.

g. Community Corrections

    This guidance also applies to community corrections programs 
that receive, directly or indirectly, Federal financial assistance. 
For them, the most frequent contact with LEP individuals will be 
with an offender, a victim, or the family members of either, but may 
also include witnesses and community members in the area in which a 
crime was committed.
    As with other recipient activities, community corrections 
programs should apply the four factors and determine areas where 
language services are most needed and reasonable. Important oral 
communications include, for example: interviews; explaining 
conditions of probations/release; developing case plans; setting up 
referrals for services; regular supervision contacts; outlining 
violations of probations/parole and recommendations; and making 
adjustments to the case plan. Competent oral language services for 
LEP persons are important for each of these types of communication. 
Recipients have great flexibility in determining how to provide 
those services.
    Just as with all language services, it is important that 
language services be competent. Some knowledge of the legal system 
may be necessary in certain circumstances. For example, special 
attention should be given to the technical interpretation skills of 
interpreters used when obtaining information from an offender during 
pre-sentence and violation of probation/parole investigations or in 
other circumstances in which legal terms and the results of 
inaccuracies could impose an enormous burden on the LEP person.
    In addition, just as with other recipients, corrections programs 
should identify vital written materials for probation and parole 
that should be translated when a significant number or proportion of 
LEP individuals that speak a particular language is encountered. 
Vital documents in this context could include, for instance: 
probation/parole department descriptions and grievance procedures, 
offender rights information, the pre-sentence/release investigation 
report, notices of alleged violations, sentencing/release orders, 
including conditions of parole, and victim impact statement 
questionnaires.

C. Other Types of Recipients

    DOJ provides Federal financial assistance to many other types of 
entities and programs, including, for example, courts, juvenile 
justice programs, shelters for victims of domestic violence, and 
domestic violence prevention programs. The Title VI regulations and 
this Guidance apply to those

[[Page 41471]]

entities. Examples involving some of those recipients follow: \5\
---------------------------------------------------------------------------

    \5\ As used in this appendix, the word ``court'' or ``courts'' 
includes administrative adjudicatory systems or administrative 
hearings administered or conducted by a recipient.
---------------------------------------------------------------------------

1. Courts

    Application of the four-factor analysis requires recipient 
courts to ensure that LEP parties and witnesses receive competent 
language services, consistent with the four-factor analysis. At a 
minimum, every effort should be taken to ensure competent 
interpretation for LEP individuals during all hearings, trials, and 
motions during which the LEP individual must and/or may be present. 
When a recipient court appoints an attorney to represent an LEP 
defendant, the court should ensure that either the attorney is 
proficient in the LEP person's language or that a competent 
interpreter is provided during consultations between the attorney 
and the LEP person.
    Many states have created or adopted certification procedures for 
court interpreters. This is one way for recipients to ensure 
competency of interpreters. Where certification is available, courts 
should consider carefully the qualifications of interpreters who are 
not certified. Courts will not, however, always be able to find a 
certified interpreter, particularly for less frequently encountered 
languages. In a courtroom or administrative hearing setting, the use 
of informal interpreters, such as family members, friends, and 
caretakers, would not be appropriate.

    Example: A state court receiving DOJ Federal financial 
assistance has frequent contact with LEP individuals as parties and 
witnesses, but has experienced a shortage in certified interpreters 
in the range of languages encountered. State court officials work 
with training and testing consultants to broaden the number of 
certified interpreters available in the top several languages spoken 
by LEP individuals in the state. Because resources are scarce and 
the development of tests expensive, state court officials decide to 
partner with other states that have already established agreements 
to share proficiency tests and to develop new ones together. The 
state court officials also look to other existing state plans for 
examples of: codes of professional conduct for interpreters; 
mandatory orientation and basic training for interpreters; 
interpreter proficiency tests in Spanish and Vietnamese language 
interpretation; a written test in English for interpreters in all 
languages covering professional responsibility, basic legal term 
definitions, court procedures, etc. They are considering working 
with other states to expand testing certification programs in coming 
years to include several other most frequently encountered 
languages. These actions constitute strong evidence of compliance.
    Many individuals, while able to communicate in English to some 
extent, are still LEP insofar as ability to understand the terms and 
precise language of the courtroom. Courts should consider carefully 
whether a person will be able to understand and communicate 
effectively in the stressful role of a witness or party and in 
situations where knowledge of language subtleties and/or technical 
terms and concepts are involved or where key determinations are made 
based on credibility.

    Example: Judges in a county court receiving Federal financial 
assistance have adopted a voir dire for determining a witness' need 
for an interpreter. The voir dire avoids questions that could be 
answered with ``yes'' or ``no.'' It includes questions about comfort 
level in English, and questions that require active responses, such 
as: ``How did you come to court today?'' etc. The judges also ask 
the witness more complicated conceptual questions to determine the 
extent of the person's proficiency in English. These actions 
constitute strong evidence of compliance.
    Example: A court encounters a domestic violence victim who is 
LEP. Even though the court is located in a state where English has 
been declared the official language, it employs a competent 
interpreter to ensure meaningful access. Despite the state's 
official English law, the Title VI regulations apply to the court.
    When courts experience low numbers or proportions of LEP 
individuals from a particular language group and infrequent contact 
with that language group, creation of a new certification test for 
interpreters may be overly burdensome. In such cases, other methods 
should be used to determine the competency of interpreters for the 
court's purposes.
    Example: A witness in a county court in a large city speaks Urdu 
and not English. The jurisdiction has no court interpreter 
certification testing for Urdu language interpreters because very 
few LEP individuals encountered speak Urdu and there is no such test 
available through other states or organizations. However, a non-
certified interpreter is available and has been given the standard 
English-language test on court processes and interpreter ethics. The 
judge brings in a second, independent, bilingual Urdu-speaking 
person from a local university, and asks the prospective interpreter 
to interpret the judge's conversation with the second individual. 
The judge then asks the second Urdu speaker a series of questions 
designed to determine whether the interpreter accurately interpreted 
their conversation. Given the infrequent contact, the low number and 
proportion of Urdu LEP individuals in the area, and the high cost of 
providing certification tests for Urdu interpreters, this ``second 
check'' solution may be one appropriate way of ensuring meaningful 
access to the LEP individual.
    Example: In order to minimize the necessity of the type of 
intense judicial intervention on the issue of quality noted in the 
previous example, the court administrators in a jurisdiction, 
working closely with interpreter and translator associations, the 
bar, judges, and community groups, have developed and disseminated a 
stringent set of qualifications for court interpreters. The state 
has adopted a certification test in several languages. A 
questionnaire and qualifications process helps identify qualified 
interpreters even when certified interpreters are not available to 
meet a particular language need. Thus, the court administrators 
create a pool from which judges and attorneys can choose. A team of 
court personnel, judges, interpreters, and others have developed a 
recommended interpreter oath and a set of frequently asked questions 
and answers regarding court interpreting that have been provided to 
judges and clerks. The frequently asked questions include 
information regarding the use of team interpreters, breaks, the 
types of interpreting (consecutive, simultaneous, summary, and sight 
translations) and the professional standards for use of each one, 
and suggested questions for determining whether an LEP witness is 
effectively able to communicate through the interpreter. Information 
sessions on the use of interpreters are provided for judges and 
clerks. These actions constitute strong evidence of compliance.

    Another key to successful use of interpreters in the courtroom 
is to ensure that everyone in the process understands the role of 
the interpreter.

    Example: Judges in a recipient court administer a standard oath 
to each interpreter and make a statement to the jury that the role 
of the interpreter is to interpret, verbatim, the questions posed to 
the witness and the witness' response. The jury should focus on the 
words, not the non-verbals, of the interpreter. The judges also 
clarify the role of the interpreter to the witness and the 
attorneys. These actions constitute strong evidence of compliance.
    Just as corrections recipients should take care to ensure that 
eligible LEP individuals have the opportunity to reduce the term of 
their sentence to the same extent that non-LEP individuals do, 
courts should ensure that LEP persons have access to programs that 
would give them the equal opportunity to avoid serving a sentence at 
all.

    Example: An LEP defendant should be given the same access to 
alternatives to sentencing, such as anger management, batterers' 
treatment and intervention, and alcohol abuse counseling, as is 
given to non-LEP persons in the same circumstances.
    Courts have significant contact with the public outside of the 
courtroom. Providing meaningful access to the legal process for LEP 
individuals might require more than just providing interpreters in 
the courtroom. Recipient courts should assess the need for language 
services all along the process, particularly in areas with high 
numbers of unrepresented individuals, such as family, landlord-
tenant, traffic, and small claims courts.

    Example: Only twenty thousand people live in a rural county. The 
county superior court receives DOJ funds but does not have a budget 
comparable to that of a more-populous urbanized county in the state. 
Over 1000 LEP Hispanic immigrants have settled in the rural county. 
The urbanized county also has more than 1000 LEP Hispanic 
immigrants. Both counties have ``how to'' materials in English 
helping unrepresented individuals negotiate the family court 
processes and providing information for

[[Page 41472]]

victims of domestic violence. The urban county has taken the lead in 
developing Spanish-language translations of materials that would 
explain the process. The rural county modifies these slightly with 
the assistance of family law and domestic violence advocates serving 
the Hispanic community, and thereby benefits from the work of the 
urban county. Creative solutions, such as sharing resources across 
jurisdictions and working with local bar associations and community 
groups, can help overcome serious financial concerns in areas with 
few resources.
    There may be some instances in which the four-factor analysis of 
a particular portion of a recipient's program leads to the 
conclusion that language services are not currently required. For 
instance, the four-factor analysis may not necessarily require that 
a purely voluntary tour of a ceremonial courtroom be given in 
languages other than English by courtroom personnel, because the 
relative importance may not warrant such services given an 
application of the other factors. However, a court may decide to 
provide such tours in languages other than English given the 
demographics and the interest in the court. Because the analysis is 
fact-dependent, the same conclusion may not be appropriate with 
respect to all tours.

    Just as with police departments, courts and/or particular 
divisions within courts may have more contact with LEP individuals 
than an assessment of the general population would indicate. 
Recipients should consider that higher contact level when 
determining the number or proportion of LEP individuals in the 
contact population and the frequency of such contact.

    Example: A county has very few residents who are LEP. However, 
many Vietnamese-speaking LEP motorists go through a major freeway 
running through the county that connects two areas with high 
populations of Vietnamese speaking LEP individuals. As a result, the 
Traffic Division of the county court processes a large number of LEP 
persons, but it has taken no steps to train staff or provide forms 
or other language access in that Division because of the small 
number of LEP individuals in the county. The Division should assess 
the number and proportion of LEP individuals processed by the 
Division and the frequency of such contact. With those numbers high, 
the Traffic Division may find that it needs to provide key forms or 
instructions in Vietnamese. It may also find, from talking with 
community groups, that many older Vietnamese LEP individuals do not 
read Vietnamese well, and that it should provide oral language 
services as well. The court may already have Vietnamese-speaking 
staff competent in interpreting in a different section of the court; 
it may decide to hire a Vietnamese-speaking employee who is 
competent in the skill of interpreting; or it may decide that a 
telephonic interpretation service suffices.

2. Juvenile Justice Programs

    DOJ provides funds to many juvenile justice programs to which 
this Guidance applies. Recipients should consider LEP parents when 
minor children encounter the legal system. Absent an emergency, 
recipients are strongly discouraged from using children as 
interpreters for LEP parents.

    Example: A county coordinator for an anti-gang program operated 
by a DOJ recipient has noticed that increasing numbers of gangs have 
formed comprised primarily of LEP individuals speaking a particular 
foreign language. The coordinator may choose to assess the number of 
LEP youths at risk of involvement in these gangs, so that she can 
determine whether the program should hire a counselor who is 
bilingual in the particular language and English, or provide other 
types of language services to the LEP youths.
    When applying the four factors, recipients encountering 
juveniles should take into account that certain programs or 
activities may be even more critical and difficult to access for 
juveniles than they would be for adults. For instance, although an 
adult detainee may need some language services to access family 
members, a juvenile being detained on immigration-related charges 
who is held by a recipient may need more language services in order 
to have access to his or her parents.

3. Domestic Violence Prevention/Treatment Programs

    Several domestic violence prevention and treatment programs 
receive DOJ financial assistance and thus must apply this Guidance 
to their programs and activities. As with all other recipients, the 
mix of services needed should be determined after conducting the 
four-factor analysis. For instance, a shelter for victims of 
domestic violence serving a largely Hispanic area in which many 
people are LEP should strongly consider accessing qualified 
bilingual counselors, staff, and volunteers, whereas a shelter that 
has experienced almost no encounters with LEP persons and serves an 
area with very few LEP persons may only reasonably need access to a 
telephonic interpretation service. Experience, program 
modifications, and demographic changes may require modifications to 
the mix over time.

    Example: A shelter for victims of domestic violence is operated 
by a recipient of DOJ funds and located in an area where 15 percent 
of the women in the service area speak Spanish and are LEP. Seven 
percent of the women in the service area speak various Chinese 
dialects and are LEP. The shelter uses competent community 
volunteers to help translate vital outreach materials into Chinese 
(which is one written language despite many dialects) and Spanish. 
The shelter hotline has a menu providing key information, such as 
location, in English, Spanish, and two of the most common Chinese 
dialects. Calls for immediate assistance are handled by the 
bilingual staff. The shelter has one counselor and several 
volunteers fluent in Spanish and English. Some volunteers are fluent 
in different Chinese dialects and in English. The shelter works with 
community groups to access interpreters in the several Chinese 
dialects that they encounter. Shelter staff train the community 
volunteers in the sensitivities of domestic violence intake and 
counseling. Volunteers sign confidentiality agreements. The shelter 
is looking for a grant to increase its language capabilities despite 
its tiny budget. These actions constitute strong evidence of 
compliance.

[FR Doc. 02-15207 Filed 6-17-02; 8:45 am]
BILLING CODE 4410-13-P




Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: