This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

13980 

Vol. 77, No. 46 

Thursday, March 8, 2012 

1Other Indo-European languages include most 

languages of Europe and the Indic languages of 

India, such as German, Yiddish, Dutch, Swedish, 

Norwegian, French, Italian, Portuguese, Russian, 

Polish, Serbo-Croatian, Hindi, Guajarati, Punjabi, 

Urdu, Greek, Baltic and Iranian languages. 

DEPARTMENT OF AGRICULTURE 

7 CFR Part 15 

Guidance to Federal Financial 

Assistance Recipients Regarding the 

Title VI Prohibition Against National 

Origin Discrimination Affecting 

Persons With Limited English 

Proficiency 

AGENCY: Office of the Assistant 

Secretary for Civil Rights, USDA. 

ACTION: Proposed final guidance. 

SUMMARY: The United States Department 

of Agriculture (USDA) is publishing the 

proposed guidance on the Title VI 

prohibition against national origin 

discrimination as it affects limited 

English proficient persons. Consistent 

with Title VI of the Civil Rights Act of 

1964, as amended, Title VI regulations, 

and Executive Order 13166, ‘‘Improving 

Access to Services for Persons with 

Limited English Proficiency (LEP),’’ the 

guidance clarifies the obligations of 

entities that receive Federal financial 

assistance from USDA. The guidance 

does not create new obligations, but 

rather, provides guidance for USDA 

recipients in meeting their existing 

obligations to provide meaningful 

access for LEP persons. 

DATES: Comments must be received in 

writing on or before May 7, 2012. 

ADDRESSES: Written comments via letter 

and facsimile are invited from interested 

persons and organizations. Comments 

should be sent to Kenneth Baisden, 

Chief, Policy Division, or Anna G. 

Stroman, Team Leader, Policy Division, 

300 7th Street SW., Washington, DC 

20250, Fax: (202) 690–2345. Comments 

may also be submitted by email at 

Kenneth.Baisden@ascr.usda.gov or 

Anna.Stroman@ascr.usda.gov. 

FOR FURTHER INFORMATION CONTACT: This 

document is available for review on the 

USDA web site at www.usda.gov/da/ 

cr.html. Arrangements to receive this 

guidance in an alternative format may 

be made by calling (202) 205–5953 or 

TTY at 1 (800) 877–8642 or (202) 720– 

2600. Upon request, USDA will supply 

appropriate aids, such as readers or 

print magnifiers, to persons with 

disabilities who need assistance to 

review the comments or other 

documents in the public record for this 

guidance. 

SUPPLEMENTARY INFORMATION: Title VI of 

the Civil Rights Act of 1964, 42 U.S.C. 

2000d–2000d–6, and the USDA 

implementing regulations at 7 CFR part 

15, Subpart A, ‘‘Nondiscrimination in 

Federally-Assisted Programs of the 

Department of Agriculture Effectuation 

of Title VI of the Civil Rights Act of 

1964,’’ provide that no person shall be 

discriminated against on the basis of 

race, color, or national origin, be 

excluded from participation in, be 

denied the benefits of, or be otherwise 

subjected to discrimination under any 

program or activity of an applicant or 

recipient receiving Federal financial 

assistance from the Department of 

Agriculture or any Agency thereof. The 

purpose of this guidance is to clarify the 

responsibilities of recipients and subrecipients (recipients) who receive 

financial assistance from USDA and to 

assist them in fulfilling their 

responsibilities to LEP persons under 

Title VI of the Civil Rights Act of 1964, 

as amended, and the implementing 

regulations. This guidance does not 

impose any new requirements, but 

reiterates longstanding Title VI and 

regulatory principles and clarifies 

USDA’s position that in order to avoid 

discrimination against LEP persons on 

the ground of national origin, recipients 

must take reasonable steps to ensure 

that LEP persons receive the language 

assistance necessary to afford them 

meaningful access to USDA programs 

and activities, free of charge. 

On March 14, 2002, the Office of 

Management and Budget (OMB) issued 

a Report to Congress entitled, 

‘‘Assessment of the Total Benefits and 

Costs of Implementing Executive Order 

No. 13166: Improving Access to 

Services for Persons with Limited 

English Proficiency.’’ Among other 

things, the Report recommended the 

adoption of uniform guidance across all 

Federal agencies, with flexibility to 

permit tailoring to each agency’s 

specific recipients. Consistent with this 

OMB recommendation, the Department 

of Justice (DOJ) published LEP Guidance 

for DOJ recipients, which was drafted 

and organized to function as a model for 

similar guidance by other Federal 

agencies. See 67 FR 41455 (June 18, 

2002). Consistent with this directive, 

USDA has developed this proposed 

guidance, which is designed to reflect 

the application of the DOJ Guidance 

standards to the programs and activities 

of USDA recipients. 

This guidance sets out the policies, 

procedures, and steps that USDA 

recipients can take to ensure that LEP 

persons have meaningful access to 

federally assisted programs and 

activities and provides examples of 

policies and practices that USDA may 

find violative of Title VI and Title VI 

regulations. 

It also sets out the general parameters 

for recipients in providing translations 

of written materials, provides examples 

that illustrate the importance of such 

translations, and describes the 

flexibility that recipients have in 

meeting this obligation. For recipients 

who desire greater specificity regarding 

written translations for LEP persons, the 

guidance contains population 

thresholds. Use of these population 

thresholds is not mandatory. The 

guidance explicitly states that the 

failure to meet these population 

thresholds will not result in a finding of 

noncompliance, but that USDA will 

review a number of other factors in 

determining compliance. 

The guidance also describes some of 

the methods recipients can use to meet 

their obligation to provide, under 

certain circumstances, competent oral 

interpretative services to LEP persons. It 

has been determined that this guidance 

does not constitute a regulation subject 

to the rulemaking requirements of the 

Administrative Procedure Act. 

Background 

Most people living in the United 

States read, write, speak, and 

understand English. There are many 

people, however, for whom English is 

not their primary language. For 

instance, based on the 2000 Census, 

over 26 million individuals speak 

Spanish, over 10 million speak IndoEuropean languages,1 and almost 7 

million speak an Asian or Pacific Island 

language at home. If these people have 


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2Other languages include Hungarian, Arabic, 

Hebrew, languages of Africa, native North American 

languages, including the American Indian, Alaska 

native languages, and some indigenous languages of 

Central and South America. 

3USDA 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. 

4The policy guidance is not a regulation but 

rather a guide. Title VI and implementing 

regulations require that recipients take reasonable 

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 persons who are limited 

English proficient. 

a limited ability to read, write, speak, or 

understand English, they are limited 

English proficient, or ‘‘LEP.’’ According 

to the 2000 Census data, 28.3 percent of 

all Spanish speakers, 27.2 percent of all 

Russian speakers, 28.2 percent of all 

Chinese speakers, and 32.4 percent of 

all Vietnamese speakers reported that 

they spoke English ‘‘not well’’ or ‘‘not 

at all’’ in response to the 2000 Census.2

Language for LEP persons 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 are 

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 people learn 

English. Recipients should not overlook 

the long-term positive impacts of 

incorporating or offering English as a 

Second Language (ESL) programs along 

with language assistance services. ESL 

courses can serve as an important 

adjunct to a proper LEP plan. The fact 

that ESL classes are made available, 

however, does not obviate the statutory 

and regulatory requirements 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.3

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 by providing 

a description of the factors recipients 

should consider in fulfilling their 

responsibilities to LEP persons.4 These 

are the same criteria USDA has been 

using and will continue to use in 

evaluating whether recipients are in 

compliance with Title VI and Title VI 

regulations. 

Under Executive Order 13166, DOJ is 

responsible for providing LEP Guidance 

to all Federal agencies and for ensuring 

consistency among the agency-specific 

guidance documents issued by Federal 

agencies. Consistency among the 

agency-specific guidance documents 

issued by Federal agencies is 

particularly important. Inconsistency or 

contradictory guidance could confuse 

recipients of Federal funds and 

needlessly increase costs without 

rendering the meaningful access for LEP 

persons that this Guidance is designed 

to address. 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. 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 nonprofits that 

receive Federal financial assistance. 

There are many productive steps the 

Federal Government, either collectively 

or as individual agencies, can take to 

help recipients reduce the costs of 

language services without sacrificing 

meaningful access for LEP persons. 

Without these steps, certain smaller 

potential recipients may well choose not 

to participate in federally assisted 

programs, threatening the critical 

functions that the programs strive to 

provide. To that end, USDA plans to 

continue to provide assistance and 

guidance in this important area. In 

addition, USDA plans to work with 

potential and actual recipients, other 

Federal agencies, and LEP persons to 

identify and share model plans, 

examples of best practices, and costsaving approaches. 

Moreover, USDA 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, local governments, and 

small nonprofit organizations. An 

interagency working group on LEP has 

developed a Web site, http:// 

www.lep.gov, to assist in disseminating 

this information to recipients, other 

Federal agencies, and the communities 

being served. 

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. 

I. Legal Authority. 

Section 601 of Title VI of the Civil 

Rights Act of 1964, 42 U.S.C. 2000d, 

states: 

No person in the United States 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. 

In addition to Title VI, some USDA 

recipients must implement a statutory 

provision of the Food Stamp Act of 

1977, 7 U.S.C. 2011 et seq., which 

requires them to use appropriate 

bilingual personnel and printed 

materials in the administration of the 

Supplemental Nutrition Assistance 

Program (SNAP), formerly the Food 

Stamp Program, in areas where a 

substantial number of potentially 

eligible households speak a language 

other than English. The Food Stamp Act 

also requires recipients to establish 

procedures governing the operation of 

SNAP offices that best serve households 

in each State, including households in 


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5The 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 (‘‘[We] 

assume for purposes of this decision that section 

602 confers the authority to promulgate disparateimpact 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 § 601, 

when § 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 agencies to 

enforce their own implementing regulations. 

6Pursuant 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 

USDA federally conducted programs and activities. 

areas where a substantial number of 

potentially eligible households speak a 

language other than English. 

USDA regulations at 7 CFR 15.3b(1)– 

(2) provide in part: 

(1) A recipient under any program to 

which the regulations in this part apply 

may not, directly or through contractual 

or other arrangements on the ground of 

race, color, or national origin: 

(i.) Deny an individual any service, 

financial aid, or other benefit provided 

under the program; 

(ii.) Provide any service, financial aid, 

or other benefit, to an individual which 

is different, or is provided in a different 

manner, from that provided to others 

under the program; 

(iii.) Subject an individual to 

segregation or separate treatment in any 

matter related to his receipt of any 

service, financial aid, or other benefit 

under the program; 

(iv.) Restrict 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; 

(v.) Treat an individual differently 

from others in determining whether he 

or she satisfies any admission, 

enrollment, quota, eligibility, 

membership, or other requirement or 

condition that individuals must meet in 

order to be provided any service, 

financial aid, or other benefit provided 

under the program; 

(vi.) Deny an individual an 

opportunity to participate in the 

program through the provisions of 

services or otherwise or afford him or 

her an opportunity to do so that is 

different from that afforded others under 

the program; or 

(vii.) Deny a person the opportunity to 

participate as a member of a planning or 

advisory body that is an integral part of 

the program. 

(2) A recipient, in determining the 

types of services, financial aid, or other 

benefits or facilities that will be 

provided under any such program, or 

the class of individuals to whom, or the 

situations in which, such services, 

financial aid, other benefits, or facilities 

will be provided under any such 

program or the class of individuals to be 

afforded an opportunity to participate in 

any such program, may not, directly or 

through contractual or other 

arrangements, utilize criteria or methods 

of administration that 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 to individuals of a particular 

race, color, or national origin. 

In addition, USDA regulations 

implementing the Food Stamp Act of 

1977, published at 7 CFR 15.3(6)(i)–(ii), 

provide in part: 

Based on the estimated total number of 

low-income households in a project area 

which speak the same non-English language 

(a single-language minority), the State agency 

shall provide bilingual program information 

and certification materials, and staff or 

interpreters * * *. 

In Lau v. Nichols, 414 U.S. 563 (1974), 

the Supreme Court interpreted 

regulations promulgated by the former 

Department of Health, Education, and 

Welfare, 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, which 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, ‘‘Improving Access to Services 

for Persons with Limited English 

Proficiency,’’ was issued; 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 their 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.5 The Assistant 

Attorney General stated that because 

Sandoval did not invalidate any Title VI 

regulations that proscribe conduct that 

has a disparate impact on covered 

groups—the types of regulations that 

form the legal basis for the part of 

Executive Order 13166 that applies to 

federally assisted programs and 

activities—the Executive Order remains 

in force. 

This guidance clarifies the 

responsibilities of recipients and will 

assist them in fulfilling their 

responsibilities to LEP persons under 

Title VI of the Civil Rights Act of 1964, 

as amended, and Title VI regulations. It 

is consistent with Executive Order 

13166 and DOJ LEP guidance. To avoid 

discrimination against LEP persons on 

the ground of national origin, USDA 

recipients should take reasonable steps 

to ensure that such persons receive the 

language assistance necessary to afford 

them meaningful access to recipient 

programs or activities, free of charge. 

II. Who is covered? 

USDA regulations require all 

recipients of Federal financial assistance 

from USDA to provide meaningful 

access to LEP persons.6 Federal 

financial assistance includes grants, 

below-market loans, training, and use of 

equipment, donations of surplus 


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7What constitutes a program or activity covered 

by Title VI was clarified by Congress in 1988, when 

the Civil Rights Restoration Act of 1987 (CRRA) was 

enacted. The CRRA provides that, in most cases, 

when a recipient receives Federal Financial 

assistance for a particular program or activity, all 

operations of the recipient are covered by Title VI, 

not just the part of the program or activity that uses 

the federal assistance. 

8However, 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). 

9Recipients should also be mindful of their 

responsibilities under the Americans with 

Disabilities Act of 1990 and § 504 of the 

Rehabilitation Act of 1973 in meeting their 

obligation to ensure access to LEP individuals with 

disabilities. 

property, and other assistance. Covered 

entities include, but are not limited to: 

• State and County agencies, offices, 

and their subdivisions; 

• Private vendors, agents, contractors, 

associations, and corporations; 

• Colleges, universities, and 

elementary and secondary schools; 

• County, district, and regional 

committees/councils; 

• Nursing homes, summer camps, 

food banks, and housing authorities; 

• Research and promotion boards; 

and 

• Other entities receiving, directly or 

indirectly, Federal financial assistance 

provided by USDA. 

Sub-recipients likewise are covered 

when Federal funds are passed through 

from a recipient to a sub-recipient. 

Coverage extends to a recipient’s 

entire program or activity, i.e., to all 

parts of a recipient’s operations.7 This is 

true even if only one part of the 

recipient receives the Federal financial 

assistance.8 For example, USDA 

provides assistance to a University’s 

outreach department to provide 

business development services to local 

farmers and ranchers. In such a case, all 

operations of the University—not just 

those of the University’s outreach 

department—are covered. 

Some recipients operate in 

jurisdictions in which English has been 

declared the official language. These 

recipients continue to be subject to 

Federal nondiscrimination 

requirements, including those 

applicable to the provision of federally 

assisted services and benefits to persons 

with limited English proficiency.9

III. Who is a limited english proficient 

person? 

Persons who do not speak English as 

their primary language and who have a 

limited ability to read, write, speak, or 

understand English can be limited 

English proficient, or ‘‘LEP,’’ and 

entitled to language assistance with 

respect to a particular type of benefit, 

service, or encounter. Examples of 

populations likely to include LEP 

persons who are encountered and/or 

served by USDA recipients and should 

be considered when planning language 

services include, but are not limited to, 

for example: 

• Persons seeking access to or 

needing assistance to obtain SNAP 

benefits or other food assistance from a 

recipient; 

• Persons seeking information, 

seeking to enforce rights, or seeking 

benefits or services from recipient State 

and County agencies, offices, and their 

subdivision; 

• Persons encountering recipient 

private vendors, agents, contractors, 

associations, and corporations; 

• Students, community members, and 

others encountering recipient extension 

programs, colleges, universities, and 

elementary and secondary schools; 

• Persons seeking to participate in 

public meetings or otherwise participate 

in the activities of county, district, and 

regional committees/councils; 

• Persons seeking access to, or 

services, or information from, nursing 

homes, summer camps, food banks, and 

housing authorities; 

• Persons subject to the work of 

research and promotion boards; 

• Persons encountering other entities 

or persons who receive, directly or 

indirectly, Federal financial assistance 

provided by USDA; and 

• Parents and family members of the 

above. 

IV. How does a recipient determine the 

extent of its obligation to provide LEP 

services? 

In order to ensure compliance with 

Title VI and Title VI regulations, 

recipients are required to take 

reasonable steps to ensure that LEP 

persons have meaningful access to their 

programs and activities. While designed 

to be a flexible and fact-dependent 

standard, the starting point is an 

individualized assessment that balances 

the following four factors: 

I. The number or proportion of LEP 

persons eligible to be served or likely to 

be encountered within the area serviced 

by the recipient; 

II. The frequency with which LEP 

persons come in contact with the 

program or activity; 

III. The nature and importance of the 

program, activity, or service to people’s 

lives; and 

IV. The resources available to the 

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 

avoiding 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 might require more in 

the way of language assistance. 

However, the flexibility that recipients 

have to address the needs of the LEP 

populations they serve does not 

diminish and should not be used to 

minimize their obligation to address 

those needs. USDA recipients should 

apply the following four factors to the 

various kinds of contacts with the 

public to assess language needs and 

decide which reasonable steps should 

be taken to ensure meaningful access for 

LEP persons. 

I. The Number or Proportion of LEP 

Persons Eligible To Be Served or Likely 

To Be Encountered Within the Area 

Serviced by the Recipient 

One factor in determining which 

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 LEP 

persons within the eligible service 

population, 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 activities 

are those who are served or encountered 

in the eligible service population. The 

eligible service population is program/ 

activity-specific and includes persons 

who are in the recipient’s geographic 

service area as established by USDA, 

State or local authorities, or the 

recipient, as appropriate, provided that 

those designations do not themselves 

discriminatorily exclude certain 

populations. For instance, if a statewide 

conservation district serves a large LEP 

population within a particular county, 

the appropriate service area will be the 

county, and not the entire population 

eligible to participate in the program or 

activity within the State. Below are 

additional examples of how USDA 

would determine the relevant service 

areas when assessing who is eligible to 

be served or likely to be directly 

affected. 

Example A: A complaint filed with USDA 

alleges that a local SNAP certification office 


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10The focus of the analysis is on the lack of 

English proficiency, not the ability to speak more 

than one language. Note that demographic data 

might 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 might be spoken by people who are also 

overwhelmingly proficient in English. Thus, they 

might not be the languages spoken most frequently 

by limited English proficient persons. When using 

demographic data, it is important to focus in on the 

languages spoken by those who are not proficient 

in English. 

11Small recipients with limited resources might 

find that entering into a bulk telephonic 

discriminates against Hispanic and Chinese 

LEP applicants by failing to provide such 

persons with language assistance in 

connection with its programs and activities, 

including written translations. The 

certification office identifies its service area 

as the geographic area identified in its plan 

of operations. USDA determines that a 

substantial number of the recipient’s food 

stamp applicants and beneficiaries are drawn 

from the area identified in the plan of 

operations and that no area with 

concentrations of racial, ethnic, or other 

minorities is discriminatorily excluded from 

the plan. USDA is likely to accept the area 

identified in the plan of operations as the 

relevant service area. 

Example B: A privately owned limitedprofit housing corporation enters into an 

agreement with USDA to provide low-income 

rural rental housing that will serve 

beneficiaries in three counties. The 

agreement is reviewed and approved by 

USDA. In determining the persons eligible to 

be served or likely to be affected, the relevant 

service area would generally be that 

designated in the agreement. However, if one 

of the counties has a significant population 

of LEP persons and the others do not, 

consideration of that particular county as a 

service population for purposes of 

determining the proportion of LEP persons in 

the population served by that portion of the 

recipient’s program or activity would be 

appropriate. 

When considering the number or 

proportion of LEP individuals in a 

service area, recipients should consider 

LEP parent(s) when their Englishproficient or LEP minor children and 

dependents encounter or participate in 

a portion of a recipient’s program or 

activity. 

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 and from community 

organizations, and data from State and 

local governments.10 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. 

II. The Frequency With Which LEP 

Persons Come in Contact With the 

Program or Activity 

Recipients should assess, as 

accurately as possible, the frequency 

with which they have or should have 

contact with LEP persons 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 LEP persons on a one-time basis 

will be very different from 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 contact with Spanish-speaking 

people who are LEP might require 

certain assistance in Spanish. Less 

frequent contact with different language 

groups might suggest a different and less 

intensified solution. If an LEP person 

accesses a program or service on a daily 

basis, a recipient has greater duties than 

if the same person’s program or activity 

contact is unpredictable or infrequent. 

However, 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 person seeks services under 

the program in question. This plan need 

not be intricate; it can 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. 

III. The Nature and Importance of the 

Program, Activity or Service 

The more important the information, 

service, or benefit provided in a 

program or activity, or the greater the 

possible consequences of the contact to 

LEP persons, the more likely language 

services are needed. For instance, in 

determining importance, the obligation 

to communicate information on the 

availability of emergency food 

assistance in a designated disaster area 

might differ significantly from the 

obligation to communicate information 

on the opportunity to attend a one-time 

free luncheon at a community recreation 

center. A recipient needs to determine 

whether denial or delay of access to 

services, benefits or information could 

have serious or even life-threatening 

implications for an LEP person. For 

example, the failure to translate consent 

forms and applications for important 

benefits or services could have serious 

or life-threatening implications for LEP 

persons in need of food, shelter, 

emergency services, and many other 

important benefits. Also, a recipient 

needs to determine if the media used to 

publicize a benefit or service, or a delay 

in providing information on a program, 

service, or benefit might have serious, 

negative implications for LEP persons. 

Further, decisions by a Federal, State, or 

local entity, or by the recipient, to make 

an activity compulsory, such as 

educational programs and notifications 

of the right to a hearing or appeal can 

serve as strong evidence of the 

program’s importance. 

IV. 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 those 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 agencies; 

and reasonable business practices. 

Where appropriate, the following might 

help reduce costs: 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, or centralizing 

interpreter and translator services to 

achieve economies of scale; the 

formalized use of qualified community 

volunteers can also help reduce costs.11


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interpretation service contract will prove cost 

effective. 

12Many languages have ‘‘regionalisms,’’ or 

differences in usage. For instance, a word that night 

be understood to mean something in Spanish for 

someone from Cuba might not be so understood by 

someone from Mexico. In addition, because there 

may be languages that do not have an appropriate 

direct interpretation of some programmatic terms, 

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 

so that these terms can be used again, when 

appropriate. 

13For those languages in which no formal 

accreditation or certification exist, recipients 

should consider a formal process for establishing 

the credentials of the interpreter. 

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 

might 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. 

The four-factor analysis necessarily 

implicates the ‘‘mix’’ of appropriate LEP 

services. Recipients have two main 

ways to provide language services: (1) 

Oral interpretation either in person or 

via telephone interpretation service 

(hereinafter ‘‘interpretation’’) and (2) 

written translation (hereinafter 

‘‘translation’’). Oral interpretation can 

range from on-site interpreters for 

critical services provided to 

commercially available telephonic 

interpretation services that are accessed 

by a high volume of LEP persons. 

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 person may be referred to another 

recipient office for language assistance. 

The correct mix should be based on 

what is both necessary and reasonable 

in light of the four-factor analysis. For 

instance, social service recipients 

having a service area with a significant 

Hispanic LEP population might need 

immediate oral interpreters available 

and should give serious consideration to 

hiring some bilingual staff. (Of course, 

many social services have already made 

such arrangements.) In contrast, there 

might 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 

might be high—such as in the case of a 

voluntary general public tour of a 

recreational facility—in which prearranged language services for the 

particular service might 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 LEP persons and to recipients. 

Recipients have substantial flexibility in 

determining the appropriate mix. 

V. Selecting Language Assistance 

Services 

Recipients have two main ways to 

provide language assistance to LEP 

persons—oral interpretation and written 

translations. Quality and accuracy of the 

language service is critical in order to 

avoid serious consequences to LEP 

persons and to recipients. 

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. Assessment of competency 

involves more than self-identification as 

bilingual. Some bilingual staff and 

community volunteers, for instance, 

might 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 might 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 

particular to the recipient’s program or 

activity and of any particularized 

vocabulary and phraseology used by the 

LEP person who is being assisted; 12

• Understand and follow 

confidentiality and impartiality rules to 

the same extent as the recipient for 

whom he or she is interpreting; and 

• Understand and adhere to their role 

as interpreters, without deviating into a 

role as counselor, advisor, or other 

inappropriate roles. 

Some recipients might have 

additional self-imposed requirements 

for interpreters. Where individual rights 

depend on precise, complete, and 

accurate interpretation or translations, 

particularly where ambiguous, 

incomplete, or inaccurate information 

can result in the denial or reduction of 

services or benefits, the use of certified 

interpreters is strongly encouraged.13

Where such proceedings are lengthy, the 

interpreter will likely need breaks, and 

team interpreting might be appropriate 

to ensure accuracy and to prevent errors 

caused by mental fatigue of interpreters. 

While quality and accuracy of 

language services is critical, the quality 

and accuracy of language services is 

nonetheless part of the appropriate mix 

of appropriate LEP services. The quality 

and accuracy of language services in a 

hearing regarding the reduction of 

benefits, for example, must be 

extraordinarily high, while the quality 

and accuracy of language services in a 

voluntary recreational program might 

not need to meet the same exacting 

standards. 

Finally, when interpretation is needed 

and is reasonable, it should be provided 

in a timely manner. To be effective, 

language assistance should be timely. 

While there is no single definition for 

‘‘timely’’ that is 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 or benefit 

at issue or the imposition of an undue 

burden on or delay in the provision of 

important information rights, benefits, 

or services to the LEP person. For 

example, when the timelines of 

information, benefits, or services is 

important, such as with certain 

activities related to various types of 

emergency assistance by way of 

nutrition or housing services, or 

emergency loans, grants, etc., a recipient 

would likely not be providing 

meaningful access if it had one bilingual 

staffer available one day a week to 


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13986 Federal Register / Vol. 77, No. 46 / Thursday, March 8, 2012 / Proposed Rules 

provide language assistance. 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 information, services, or 

benefits 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 

receptionists, secretaries, program 

specialists, and/or program aides, with 

staff who are bilingual and competent to 

communicate directly with LEP persons 

in their language. If bilingual staffs 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 might conflict with 

the role of an interpreter (for instance, 

a bilingual program specialist would 

probably not be able to perform 

effectively the role of an interpreter in 

a benefits hearing and also carry out his 

or her duties to administer requirements 

of the program or activity at the same 

time, even if the program specialist were 

a qualified interpreter). Effective 

management strategies, including any 

appropriate adjustments in assignments 

and protocols for using bilingual staff, 

can ensure that bilingual staffs are fully 

and appropriately utilized. When 

bilingual staff cannot meet all of the 

language service obligations of the 

recipient, the recipient should turn to 

other options. 

Hiring Staff Interpreters. Hiring 

interpreters can 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 can 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 interpreters and 

providing training regarding the 

recipient’s programs and processes to 

these organizations can be a costeffective 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 can 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 or 

activity that might 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 documents 

prior to the discussion and any 

logistical problems that 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 can 

provide a cost-effective supplemental 

language assistance strategy under 

appropriate circumstances. These types 

of volunteers can 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, services, or 

benefits of the program or activity and 

who 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 be knowledgeable about applicable 

confidentiality and impartiality rules. 

Recipients should consider formal 

arrangements with community-based 

organizations that provide volunteers to 

address these concerns and help ensure 

that services are readily available. 

Use of Family Members, Friends, or 

Others 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, or other person 

of their choosing) 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 person 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 

members, friends, 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 regulatory 

interest in accurate interpretation. 

In many circumstances, family 

members (especially children), friends, 

or others identified by LEP persons, are 

not competent to provide quality and 

accurate interpretations. Issues of 

confidentiality, privacy, or conflict of 

interest may also arise. LEP persons may 

feel uncomfortable revealing or 

describing sensitive, confidential, or 

potentially embarrassing family, 

medical, or financial information to a 

family member, friend, or member of the 

local community. In addition, such 

informal interpreters may have a 

personal connection to the LEP person 

or an undisclosed conflict of interest. 

For these reasons, when oral language 

services are necessary, recipients should 

generally offer competent interpreter 

services free of cost to the LEP person. 

For USDA recipient programs and 

activities, this is particularly true in an 

administrative hearing or in situations 

in which health, safety, or access to 

sustenance or important benefits and 

services are at stake, or when credibility 

and accuracy are important to protect an 

LEP person’s rights or access to 

important benefits and services. An 

example of such a case is when an LEP 

recipient applies for food stamps or a 

low-interest farm loan. The recipient 

should not rely on friends or family 

members of the LEP recipient or other 

informal interpreters. 


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While issues of competency, 

confidentiality, and conflict of interest 

in the use of family members (especially 

children), friends, or other informal 

interpreters often make their use 

inappropriate, their use 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 tour of a recipient’s farmland 

offered to the public. There, the 

importance and nature of the activity 

may be relatively low and unlikely to 

implicate issues of confidentiality, 

conflict of interest, or the need for 

accuracy. In addition, the resources 

needed and costs of providing language 

services may be high. In such a setting, 

an LEP person’s use of family, friends, 

or others may be appropriate. 

If the LEP person voluntarily chooses 

to provide his or her own interpreter, a 

recipient should consider whether a 

record of that choice and of the 

recipient’s offer of assistance is 

appropriate. Where precise, complete, 

and accurate interpretations or 

translations of information are critical 

for, 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 ensure that the 

LEP person’s choice is voluntary, the 

LEP person is aware of the possible 

problems if the preferred interpreter is 

a minor child, and that the LEP person 

knows that the recipient could provide 

a competent interpreter at no cost (to the 

LEP person). 

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 fourfactor 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, 

but are not limited to: 

—Applications to participate in a 

recipient’s program or activity or to 

receive recipient benefits or services; 

—Consent forms, complaint forms, 

intake forms, letters containing 

important information related to 

participation (such as cover letters 

outlining conditions of participation 

in a loan program or committee 

election); 

—Written notices pertaining to 

eligibility requirements, rights, losses, 

denials, decreases in benefits or 

services, foreclosures, or terminations 

of services or benefits and/or the right 

to appeal such actions; 

—Notices advising LEP persons of the 

availability of free language 

assistance; 

—Written tests that do not assess 

English language proficiency, but test 

competency for a particular license, 

job, or skill for which knowing 

English is not required; 

—Outreach materials; and 

—Any documents that require a 

response from applicants, 

beneficiaries, and other participants. 

Whether or not a document (or the 

information it solicits) is ‘‘vital’’ may 

depend upon the importance of the 

program or activity, information, 

encounter, service, or benefit 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 

voluntary credit management courses 

should not generally be considered vital 

(so long as they are not a prerequisite to 

obtaining or maintaining better credit), 

whereas, applications for rural rental 

housing would 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 exist may 

effectively deny LEP persons 

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 frequentlyencountered 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 persons 

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 


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13988 Federal Register / Vol. 77, No. 46 / Thursday, March 8, 2012 / Proposed Rules 

14For 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. 

15For instance, there may be languages that do 

not have an appropriate direct translation of some 

program-specific terms of art or technical concepts 

and the translator should be able to provide an 

appropriate translation. The translator also should 

likely make the recipient aware of this. Recipients 

can work with translators to develop a consistent 

and appropriate set of descriptions of these terms. 

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 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. 

analysis. Because translation is a onetime expense, consideration should be 

given to whether the up-front costs of 

translating a document (as opposed to 

oral interpretation) should be amortized 

over the likely life span of the document 

when applying this four-factor analysis. 

Safe Harbor. Many recipients would 

like to ensure with greater certainty that 

they comply with their obligations to 

provide written translations in 

languages other than English. 

Paragraphs (a) and (b) outline the 

circumstances that can provide a ‘‘safe 

harbor’’ which means that if a recipient 

provides written translations under 

these circumstances, such action will be 

considered strong evidence of 

compliance with the recipient’s writtentranslation 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 

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 a 

recipient’s program or activity, 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 Provisions. The following 

actions will be considered strong 

evidence of compliance with the 

recipient’s written-translation 

obligations: 

a. The USDA recipient provides 

written translations of vital documents 

for each eligible LEP language group 

that constitutes 5 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 5 

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 

persons through competent oral 

interpreters where oral language 

services are needed and are reasonable. 

For example, recipients should, where 

appropriate, ensure that program rules 

have been explained to LEP program 

participants prior to taking adverse 

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, though 

certification or accreditation may not 

always be possible or necessary.14

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.’’ 

Recipients should ensure that 

translators understand the expected 

reading level of their audiences 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.15

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, or 

technical concepts helps avoid 

confusion by LEP persons and may 

reduce costs. Providing translators with 

examples of previous accurate 

translations of similar material by the 

recipient, other recipients, or Federal 

agencies may be helpful. 

While quality and accuracy of 

translation services is critical, the 

quality and accuracy of translation 

services is nonetheless part of the 

appropriate mix of LEP services. For 

instance, documents that are simple and 

have no legal or other negative 

consequence for LEP persons may be 

translated by individuals who are less 

skilled than those who translate 

documents with legal or other important 

consequences. 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. 

VI. 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 costeffective 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 USDA 

recipients, such as recipients serving 

very few LEP persons and recipients 

with very limited resources, may choose 

not to develop a written LEP plan. 


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16The 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. 

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 Persons Who Need 

Language Assistance 

The first two factors in the four-factor 

analysis are an assessment of the 

number of proportion of LEP persons 

eligible to be served or encountered and 

the frequency of encounters. This 

requires recipients to identify LEP 

persons with whom they have 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 selfidentify. 

(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 persons who 

have in-person contact with recipient 

staff; and 

—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; and 

—Staff having contact with the public is 

trained to work effectively with inperson 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 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 a recipient has decided, based 

on the four factors that it will provide 

language services, it is important to let 

LEP persons know that those services 

are available and they are free of charge. 

Recipients should provide this notice in 

a language that 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 important programs, 

activities, services, or benefits 

provided by USDA 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 and should 

explain how to get the language 

help; 16

—Stating in outreach documents that 

language services are available from 

the recipient. 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 

‘‘tagged’’ onto the front of common 

documents; 

—Working with community-based 

organizations and other stakeholders 

to inform LEP persons 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-Englishlanguage radio and television stations 

about the available language 

assistance services and benefits and 

how to get them; and 

—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, activities, services, and 

benefits need to be made accessible for 

LEP persons, 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 


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13990 Federal Register / Vol. 77, No. 46 / Thursday, March 8, 2012 / Proposed Rules 

additional resources, and the costs 

imposed; 

—Whether existing assistance is 

meeting the needs of LEP persons; 

—Whether staff know and understand 

the LEP plan and how to implement 

it; and 

—Whether identified sources for 

assistance are still available and 

viable. 

In addition to the five elements above, 

effective plans set clear goals, 

management accountability, and 

opportunities for community input and 

planning throughout the process. 

VII. 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 

USDA through its regulations at 7 CFR 

part 15, Departmental Regulation 4330– 

2, ‘‘Nondiscrimination in Programs and 

Activities Receiving Federal Financial 

Assistance From USDA,’’ and 

Departmental Manual 4330–1, 

‘‘Procedures for Processing 

Discrimination Complaints and 

Conducting Civil Rights Compliance 

Reviews in USDA Assisted Programs 

and Activities.’’ These documents 

contain USDA requirements and 

procedures for discrimination 

complaints processing, complaint 

investigations, compliance reviews, 

efforts to secure voluntary compliance, 

and technical assistance. 

USDA 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, 

USDA will inform the recipient in 

writing of this determination, including 

the basis for the determination. USDA 

uses voluntary mediation to resolve 

most complaints. However, if a case is 

fully investigated and results in a 

finding of noncompliance, USDA 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 

necessary. If the matter cannot be 

resolved informally, USDA must secure 

compliance through the termination of 

Federal assistance after the USDA 

recipient has been given an opportunity 

for an administrative hearing and/or by 

referring the matter to DOJ to seek 

injunctive relief or pursue other 

enforcement proceedings. USDA 

engages in voluntary compliance efforts 

and provides technical assistance to 

recipients at all stages of an 

investigation. During these efforts, 

USDA 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, USDA’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 persons, USDA 

acknowledges that the implementation 

of a comprehensive system to serve LEP 

persons 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, USDA 

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 might 

reasonably require a series of 

implementing actions over a period of 

time. However, in developing any 

phased implementation schedule, 

USDA recipients should ensure that the 

provision of appropriate assistance for 

significant LEP populations or with 

respect to programs or activities having 

a significant impact on important 

benefits, and services, are addressed 

first. Recipients are encouraged to 

document their efforts to provide LEP 

persons with meaningful access to 

federally assisted programs and 

activities. 

VIII. Effect on State and Local Laws 

Some State and local laws might 

identify language access obligations/ 

requirements. Recipients might meet 

these obligations, as long as they do not 

conflict with or set a lower standard 

than is required under Title VI and Title 

VI regulations. Finally, as noted above, 

some recipients operate in a jurisdiction 

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 benefits and services to persons 

with limited English proficiency. 

Dated: January 30, 2012. 

Thomas J. Vilsack, 

Secretary. 

[FR Doc. 2012–4377 Filed 3–7–12; 8:45 am] 

BILLING CODE 3410–9R–P 

DEPARTMENT OF AGRICULTURE 

Office of the Secretary 

7 CFR Part 20 

RIN 0551–AA70 

Export Sales Reporting Requirements 

AGENCY: Office of the Secretary, USDA. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would add 

reporting for pork (fresh, chilled, and 

frozen box/primal cuts) and distillers 

dried grain (DDG) to the Export Sales 

Reporting Requirements. Under this 

proposed rule, all exporters of U.S. pork 

and DDG would be required to report on 

a weekly basis, information on the 

export sales of pork and DDGs to the 

Foreign Agricultural Service (FAS). 

DATES: Submit comments on or before 

May 7, 2012. 

ADDRESSES: Address all comments 

concerning this proposed rule to Peter 

W. Burr, Branch Chief, Export Sales 

Reporting Branch, Import Policies and 

Export Reporting Division, Office of 

Trade Programs, Foreign Agricultural 

Service, 1400 Independence Avenue 

SW., Washington, DC 20250–1021, 

STOP 1021; or by email at 

Pete.Burr@fas.usda.gov; or by telephone 

at (202) 720–3274; or fax to (202) 720– 

0876. Persons with disabilities who 

require an alternative means for 

communication of information (Braille, 

large print, audiotape, etc.) should 

contact USDA’s Target Center at (202) 

720–2600 (voice and TDD). 

FOR FURTHER INFORMATION CONTACT: 

Peter W. Burr, Branch Chief, Export 

Sales Reporting Branch, Import Policies 

and Export Reporting Division, Office of 

Trade Programs, Foreign Agricultural 

Service, 1400 Independence Avenue 

SW., Washington, DC 20250–1021, 

STOP 1021; or by email at 

Pete.Burr@fas.usda.gov; or by telephone 

on (202) 720–3274; or by fax (202) 720– 

0876. 

SUPPLEMENTARY INFORMATION: 

Background 

In 1973, Congress mandated an export 

sales reporting requirement to ensure 

that all parties involved in the 

production and export of U.S. grain 


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