Federal Register / Vol. 66, No. 45 / Wednesday, March 7, 2001 / Notices 13829

then periodically throughout the

application process. When the agency

receives additional information from its

ongoing checks of applicants’ motor

vehicle records, this information is

thoroughly considered and the

determination to grant, or not grant, an

exemption is based on all information

received.

In a supplemental comment to the

docket, the AHAS states additional

concerns regarding agency reliance on

self-reported information. We will not

address these concerns again, but refer

interested parties to the above

discussions regarding Mr. Mazyck’s

application for an exemption and the

agency’s process for verification of

information used to determine an

applicant’s acceptability for an

exemption.

Notwithstanding the FMCSA’s

ongoing review of the vision standard,

as evidenced by the medical panel’s

report dated October 16, 1998, and filed

in this docket, the FMCSA must comply

with Rauenhorst v. United States

Department of Transportation, Federal

Highway Administration, 95 F.3d 715

(8th Cir. 1996), and grant individual

exemptions under standards that are

consistent with public safety. Meeting

those standards, the 55 veteran drivers

in this case have demonstrated to our

satisfaction that they can continue to

operate a CMV with their current vision

safely in interstate commerce, because

they have demonstrated their ability in

intrastate commerce. Accordingly, they

qualify for an exemption under 49

U.S.C. 31315 and 31136(e).

Conclusion

After considering the comments to the

docket and based upon its evaluation of

the 55 exemption applications in

accordance with the Rauenhorst

decision, the FMCSA exempts Henry

Ammons Jr., Glenn A. Babcock Jr.,

Bobby J. Beall, Robert D. Bonner, James

F. Bower, Ben T. Brown, Terry L.

Burgess, David S. Carman, Dennis J.

Christensen, David L. Davis, Darrell B.

Dean, Edgar E. French, Glen T.

Garrabrant, Doyle G. Gibson, Elias

Gomez Jr., Jose E. Gonzalez, Joseph M.

Graveline, Johnny C. Hall, William N.

Hicks, Robert K. Hodge, William G.

Holland, John R. Hughes, Frank

Inigarida, Alan L. Johnston, David O.

Kaiser Sr., Milena Kekerovic, Mark J.

Koscinski, John N. Lanning, Robert C.

Leathers, Richard L. Leonard, Calvin E.

Lloyd, Roy E. Mathews, James T.

McGraw Jr., Luther A. McKinney, Carl

A. Michel Sr., Clarence M. Miles Jr.,

Robert A. Moss, Robert A. Murphy,

Dennis I. Nelson, Martin D. Ortiz, Henry

C. Patton, Rance A. Powell, John W.

Purcell, Shannon E. Rasmussen, Merlyn

L. Rawson, James R. Rieck, Daniel J.

Schaap, Dennis J. Smith, Garfield A.

Smith, Gary L. Spelce, Frederick E. St.

John, Daniel R. Viscaya, Michael P.

Walsh, Jerry L. Whitefield, and Robert E.

Wientjes from the vision requirement in

49 CFR 391.41(b)(10), subject to the

following conditions:

(1) That each individual be physically

examined every year (a) by an

ophthalmologist or optometrist who

attests that the vision in the better eye

continues to meet the standard in 49

CFR 391.41(b)(10), and (b) by a medical

examiner who attests that the individual

is otherwise physically qualified under

49 CFR 391.41; (2) that each individual

provide a copy of the ophthalmologist’s

or optometrist’s report to the medical

examiner at the time of the annual

medical examination; and (3) that each

individual provide a copy of the annual

medical certification to the employer for

retention in the driver’s qualification

file, or keep a copy in his/her driver’s

qualification file if he/she is selfemployed. The driver must also have a

copy of the certification when driving,

so it may be presented to a duly

authorized Federal, State, or local

enforcement official.

In accordance with 49 U.S.C. 31315

and 31136(e), each exemption will be

valid for 2 years unless revoked earlier

by the FMCSA. The exemption will be

revoked if: (1) The person fails to

comply with the terms and conditions

of the exemption; (2) the exemption has

resulted in a lower level of safety than

was maintained before it was granted; or

(3) continuation of the exemption would

not be consistent with the goals and

objectives of 49 U.S.C. 31315 and 31136.

If the exemption is still effective at the

end of the 2-year period, the person may

apply to the FMCSA for a renewal under

procedures in effect at that time.

Authority: 49 U.S.C. 322, 31315 and 31136;

49 CFR 1.73.

Issued on: February 28, 2001.

Stephen E. Barber,

Acting Assistant Administrator and Chief

Safety Officer.

[FR Doc. 01–5480 Filed 3–6–01; 8:45 am]

BILLING CODE 4910–EX–P

DEPARTMENT OF THE TREASURY

Guidance to Federal Financial

Assistance Recipients on the Title VI

Prohibition Against National Origin

Discrimination Affecting Limited

English Proficient Persons

AGENCY: Department of the Treasury.

ACTION: Notice.

SUMMARY: The United States Department

of the Treasury is publishing policy

guidance on Title VI’s prohibition

against national origin discrimination as

it affects limited English proficient

persons.

DATES: This guidance is effective

immediately. Comments must be

submitted on or before May 7, 3001.

Treasury will review all comments and

will determine what modifications to

the policy guidance, if any, are

necessary.

ADDRESSES: Interested persons should

submit written comments to Ms. Marcia

H. Coates, Director, Office of Equal

Opportunity Program, Department of the

Treasury, 1500 Pennsylvania Avenue,

NW, Room 6071 Metropolitan Square,

Washington, D.C. 20220; Comments

may also be submitted by e-mail to:

OEOPWEB@do.treas.gov.

FOR FURTHER INFORMATION CONTACT: John

Hanberry at the Office of Equal

Opportunity Program, Department of the

Treasury, 1500 Pennsylvania Avenue,

NW, Room 6071 Metropolitan Square,

Washington, D.C. 20220; (202) 622–1170

voice, (202) 622–0321 TTY, (202) 622–

0367 fax. Arrangements to receive the

policy in an alternative format may be

made by contacting Mr. Hanberry.

SUPPLEMENTARY INFORMATION: Title VI of

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

2000d, et seq. and its implementing

regulations provide that no person shall

be subjected to discrimination on the

basis of race, color, or national origin

under any program or activity that

receives federal financial assistance.

The purpose of this policy guidance is

to clarify the responsibilities of

recipients of federal financial assistance

from the U.S. Department of the

Treasury (‘‘recipients’’), and assist them

in fulfilling their responsibilities to

limited English proficient (LEP)

persons, pursuant to Title VI of the Civil

Rights Act of 1964 and implementing

regulations. The policy guidance

reiterates the Federal government’s

longstanding position that in order to

avoid discrimination against LEP

persons on the grounds of national

origin, recipients must take reasonable

steps to ensure that such persons have

meaningful access to the programs,

services, and information those

recipients provide, free of charge.

The text of the complete guidance

document appears below.

13830 Federal Register / Vol. 66, No. 45 / Wednesday, March 7, 2001 / Notices

1The DOJ coordination regulations at 28 CFR

42.405(d)(1) provide that ‘‘[w]here a significant

number or proportion of the population eligible to

be served or likely to be directly affected by a

federally assisted program (e.g., affected by

relocation) needs service or information in a

language other than English in order effectively to

be informed of or to participate in the program, the

recipient shall take reasonable steps, considering

the scope of the program and the size and

concentration of such population, to provide

information in appropriate languages to such

persons. This requirement applies with regard to

written material of the type which is ordinarily

distributed to the public.’’

Dated: February 22, 2001.

James J. Flyzik,

Acting Assistant Secretary for Management

and Chief Information Officer, United States

Department of the Treasury.

Policy Guidance

A. Background

On August 11, 2000, President

Clinton signed Executive Order 13166,

‘‘Improving Access to Services for

Persons with Limited English

Proficiency.’’ The purpose of this

Executive Order is to eliminate to the

maximum extent possible limited

English proficiency (LEP) as an artificial

barrier to full and meaningful

participation in all federally assisted

programs and activities.

The EO requires that federal agencies

draft Title VI guidance specifically

tailored to their recipients of federal

financial assistance, taking into account

the types of services provided, the

individuals served, and the programs

and activities assisted to ensure that

recipients provide meaningful access to

their LEP applicants and beneficiaries.

To assist federal agencies in carrying out

these responsibilities, the Department of

Justice (DOJ) issued a Policy Guidance

Document, ‘‘Enforcement of Title VI of

the Civil Rights Act of 1964—National

Origin Discrimination Against Persons

With Limited English Proficiency (LEP

Guidance)’’. DOJ’s LEP Guidance sets

forth the compliance standards that

recipients of federal financial assistance

must follow to ensure that programs and

activities normally provided in English

are accessible to LEP persons and thus

do not discriminate on the basis of

national origin in violation of Title VI.

This document contains guidance to

recipients of financial assistance from

the Department and its constituent

bureaus. It is consistent with DOJ’s

policy guidance and provides recipients

of Treasury assistance the necessary

tools to assure language assistance to

LEP persons. It is also consistent with

the government-wide Title VI regulation

issued by DOJ in 1976, ‘‘Coordination of

Enforcement of Nondiscrimination in

Federally Assisted Programs,’’ 28 CFR

Part 42, Subpart F, that addresses the

circumstances in which recipients must

provide written language assistance to

LEP persons.1 This guidance will be

provided to all recipients of Treasury

assistance to ensure compliance with

the nondiscrimination provisions of

Title VI as it applies to language

proficiency.

B. Introduction

English is the predominant language

of the United States. According to the

1990 Census, English is spoken by 95%

of its residents. Of those U.S. residents

who speak languages other than English

at home, the 1990 Census reports that

57% above the age of four speak English

‘‘well to very well.’’

The United States is also, however,

home to millions of national origin

minority individuals who are ‘‘limited

English proficient’’ (LEP). That is, their

primary language is not English, and

they cannot speak, read, write or

understand the English language at a

level that permits them to interact

effectively. Because of these language

differences and their inability to speak

or understand English, LEP persons may

be excluded from participation,

experience delays or denials of services,

or receive services based on inaccurate

or incomplete information in Treasury

assisted programs.

Some recipients have sought to bridge

the language gap by encouraging

language minority clients to provide

their own interpreters as an alternative

to the agency’s use of qualified bilingual

employees or interpreters. Persons of

limited English proficiency must

sometimes rely on their minor children

to interpret for them during visits to a

service facility. Alternatively, these

clients may be required to call upon

neighbors or even strangers they

encounter at the provider’s office to act

as interpreters or translators. These

practices have severe drawbacks and

may violate Title VI of the Civil Rights

Act of 1964. (See Section D.6.(a) of this

notice.)

In each case, the impediments to

effective communication and adequate

service are formidable. The client’s

untrained ‘‘interpreter’’ is often unable

to understand the concepts or official

terminology he or she is being asked to

interpret or translate. Even if the

interpreter possesses the necessary

language and comprehension skills, his

or her mere presence may obstruct the

flow of confidential information to the

provider. For example, clients of an IRS

Taxpayer Clinic would naturally be

reluctant to disclose or discuss personal

details concerning their taxes, through

relatives, minor children, or friends, in

this IRS assisted program.

When these types of circumstances

are encountered, the level and quality of

services available to persons of limited

English proficiency stand in stark

contrast to Title VI’s promise of equal

access to federally assisted programs

and activities. Services denied, delayed

or provided under adverse

circumstances for an LEP person may

constitute discrimination on the basis of

national origin, in violation of Title VI.

Numerous federal laws require the

provision of language assistance to LEP

individuals seeking to access critical

services and activities. For instance, the

Voting Rights Act bans English-only

elections in certain circumstances and

outlines specific measures that must be

taken to ensure that language minorities

can participate in elections. See 42

U.S.C. 1973 b(f)(1). Similarly, the Food

Stamp Act of 1977 requires states to

provide written and oral language

assistance to LEP persons under certain

circumstances. 42 U.S.C. 2020(e)(1) and

(2). These and other provisions reflect

the judgment that providers of critical

services and benefits bear the

responsibility for ensuring that LEP

individuals can meaningfully access

their programs and services.

C. Legal Authority

1. Introduction

Over the last 30 years, federal

agencies have conducted thousands of

investigations and reviews involving

language differences that impede the

access of LEP persons to services. Where

the failure to accommodate language

differences discriminates on the basis of

national origin, federal law has required

recipients to provide appropriate

language assistance to LEP persons. For

example, one of the largest providers of

federal financial assistance, the

Department of Health and Human

Services (HHS) has entered into

voluntary compliance agreements and

consent decrees that require recipients

who operate health and social service

programs to ensure that there are

bilingual employees or language

interpreters to meet the needs of LEP

persons seeking HHS services. HHS has

also required these recipients to provide

written materials and post notices in

languages other than English. See

Mendoza v. Lavine, 412 F.Supp. 1105

(S.D.N.Y. 1976); and Asociacion Mixta

Progresista v. H.E.W., Civil Number

C72–882 (N.D. Cal. 1976). The legal

authority for Treasury’s enforcement

actions is Title VI of the Civil Rights Act

of 1964, DOJ’s government-wide

implementing regulation for Executive

Federal Register / Vol. 66, No. 45 / Wednesday, March 7, 2001 / Notices 13831

Order 12250, the August 11, 2000 DOJ

LEP Guidance, and a consistent body of

case law, which are described below.

2. Statute and Regulation

Section 601 of Title VI of the Civil

Rights Act of 1964, 42 U.S.C. section

2000d et seq. 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.’’

Treasury is in the process of drafting

its own Title VI regulations consistent

with the model regulations provided by

DOJ, which require that:

(a) A recipient under any program to

which these regulations apply, may not,

directly or through contractual or other

arrangements, on grounds 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;

(b) A recipient, in determining the

types of services, financial aid, or other

benefits, or facilities which will be

provided under any such program or the

class of individuals to whom, or the

situations in which such services,

financial aid or other benefits, or

facilities will be provided * * * may

not directly, or through contractual or

other arrangements, utilize 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 with respect to

individuals of a particular, race, color or

national origin.’’ (Emphasis added.)

3. Case Law

Extensive case law affirms the

obligation of recipients of federal

financial assistance to ensure that LEP

persons can meaningfully access

federally assisted programs.

The U.S. Supreme Court, in Lau v.

Nichols, 414 U.S. 563 (1974), recognized

that recipients of federal financial

assistance have an affirmative

responsibility, pursuant to Title VI, to

provide LEP persons with a meaningful

opportunity to participate in public

programs. In Lau, the Supreme Court

ruled that a public school system’s

failure to provide English language

instruction to students of Chinese

ancestry who do not speak English

denied the students a meaningful

opportunity to participate in a public

educational program in violation of

Title VI of the Civil Rights Act of 1964.

As early as 1926, the Supreme Court

recognized that language rules were

often discriminatory. In Yu Cong Eng et

al. v. Trinidad, Collector of Internal

Revenue, 271 U.S. 500 (1926), the

Supreme Court found that a Philippine

Bookkeeping Act that prohibited the

keeping of accounts in languages other

than English, Spanish and Philippine

dialects violated the Philippine Bill of

Rights that Congress had patterned after

the U.S. Constitution. The Court found

that the Act deprived Chinese

merchants, who were unable to read,

write or understand the required

languages, of liberty and property

without due process. In Gutierrez v.

Municipal Court of S.E. Judicial District,

838 F.2d 1031,1039 (9th Cir. 1988),

vacated as moot, 490 U.S. 1016 (1989),

the court recognized that requiring the

use of English only is often used to

mask national origin discrimination.

Citing McArthur, Worried About

Something Else, 60 Int’l J. Soc.

Language, 87, 90–91 (1986), the court

stated that because language and accents

are identifying characteristics, rules that

have a negative effect on bilingual

persons, individuals with accents, or

non-English speakers may be mere

pretexts for intentional national origin

discrimination.

Another case that noted the link

between language and national origin

discrimination is Garcia v. Gloor, 618

F.2d 264 (5th Cir. 1980) cert. denied,

449 U.S. 1113 (1981). The court found

that on the facts before it a workplace

English-only rule did not discriminate

on the basis of national origin since the

complaining employees were bilingual.

However, the court stated that ‘‘to a

person who speaks only one tongue or

to a person who has difficulty using

another language other than the one

spoken in his home, language might

well be an immutable characteristic like

skin color, sex or place of birth.’’ Id. at

269.

The Fifth Circuit addressed language

as an impermissible barrier to

participation in society in U.S. v.

Uvalde Consolidated Independent

School District, 625 F.2d 547 (5th Cir.

1980). The court upheld an amendment

to the Voting Rights Act which

addressed concerns about language

minorities, the protections they were to

receive, and eliminated discrimination

against them by prohibiting Englishonly elections.

Most recently, in Sandoval v. Hagan,

7 F. Supp. 2d 1234 (M.D. Ala. 1998),

affirmed, 197 F.3d 484, (11th Cir. 1999),

petition for certiorari granted,

Alexander v. Sandoval 121 S. Ct. 28

(Sept. 26, 2000)(No. 99–1908), the

Eleventh Circuit held that the State of

Alabama’s policy of administering a

driver’s license examination in English

only was a facially neutral practice that

had an adverse effect on the basis of

national origin, in violation of Title VI.

The court specifically noted the nexus

between language policies and potential

discrimination based on national origin.

That is, in Sandoval, the vast majority

of individuals who were adversely

affected by Alabama’s English-only

driver’s license examination policy were

national origin minorities.

4. Department of Justice August 11,

2000 LEP Guidance

This Guidance is issued in

compliance with EO 13166 and its

requirement that agencies providing

federal financial assistance provide

guidance to recipients that is consistent

with DOJ’s August 11, 2000 LEP

Guidance. That Guidance sets forth the

compliance standards that recipients of

federal financial assistance must follow

to ensure that programs and activities

are meaningfully accessible to LEP

persons and thus do not discriminate on

the basis of national origin in violation

of Title VI. A recipient’s policies or

practices regarding the provision of

benefits and services to LEP persons

need not be intentional to be

discriminatory, but may constitute a

violation of Title VI if they have an

adverse effect on the ability of national

origin minorities to meaningfully access

programs and services. Accordingly, it

is important for recipients to examine

their policies and practices to determine

whether they adversely affect LEP

persons. This policy guidance provides

a legal framework to assist recipients in

conducting such assessments.

D. Policy Guidance

1. Coverage

All entities that receive federal

financial assistance from Treasury either

directly or indirectly, through a grant,

contract or subcontract, are covered by

this policy guidance. The term ‘‘federal

financial assistance’’ to which Title VI

applies includes but is not limited to

grants and loans of federal funds, grants

or donations of federal property, details

of federal personnel, or any agreement,

arrangement or other contract which has

as one of its purposes the provision of

assistance.

Title VI prohibits discrimination in

any program or activity that receives

federal financial assistance. What

13832 Federal Register / Vol. 66, No. 45 / Wednesday, March 7, 2001 / Notices

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 that uses the federal assistance.

Thus, all parts of the recipient’s

operations would be covered by Title

VI, even if the federal assistance is used

only by one part.

2. Basic Requirements Under Title VI

A recipient whose policies, practices,

or procedures exclude, limit, or have the

effect of excluding or limiting, the

participation of any LEP person in a

federally assisted program on the basis

of national origin may be engaged in

discrimination in violation of Title VI.

In order to ensure compliance with Title

VI, recipients must take steps to ensure

that LEP persons who are eligible for

their programs or services have

meaningful access to the services,

information, and benefits that they

provide. The most important step in

meeting this obligation is for recipients

of Treasury financial assistance to

provide the language assistance

necessary to ensure such access, at no

cost to the LEP person.

The type of language assistance a

recipient/covered entity provides to

ensure meaningful access will depend

on a variety of factors, including the

total resources and size of the recipient/

covered entity, the number or

proportion of the eligible LEP

population it serves, the nature and

importance of the program or service,

including the objectives of the program,

the frequency with which particular

languages are encountered, and the

frequency with which LEP persons

come into contact with the program.

These factors are consistent with and

incorporate the standards set forth in

the Department of Justice ‘‘Policy

Guidance Document: on Enforcement of

Title VI of the Civil Rights Act of 1964—

National Origin Discrimination Against

Persons With Limited English

Proficiency (LEP Guidance),’’ reprinted

at 65 FR 50123 (August 16, 2000). There

is no ‘‘one size fits all’’ solution for Title

VI compliance with respect to LEP

persons. Treasury will make its

assessment of the language assistance

needed to ensure meaningful access on

a case by case basis, and a recipient will

have considerable flexibility in

determining precisely how to fulfill this

obligation. Treasury will focus on the

end result—whether the recipient has

taken the necessary steps to ensure that

LEP persons have meaningful access to

its programs and services.

The key to providing meaningful

access for LEP persons is to ensure that

the recipient and LEP person can

communicate effectively. The steps

taken by a covered entity must ensure

that the LEP person is given adequate

information, is able to understand the

services and benefits available, and is

able to receive those for which he or she

is eligible. The covered entity must also

ensure that the LEP person can

effectively communicate the relevant

circumstances of his or her situation to

the service provider.

Experience has shown that effective

language assistance programs usually

contain the four measures described in

Section 4 below. In reviewing

complaints and conducting compliance

reviews, Treasury will consider a

program to be in compliance when the

recipient effectively incorporates and

implements these four elements. The

failure to incorporate or implement one

or more of these elements does not

necessarily mean noncompliance with

Title VI, and Treasury will review the

totality of the circumstances to

determine whether LEP persons can

meaningfully access the services and

benefits of the recipient.

3. State or Local ‘‘English-Only’’ Laws

State or local ‘‘English-only’’ laws do

not change the fact that recipients

cannot discriminate in violation of Title

VI. Entities in states and localities with

‘‘English-only’’ laws do not have to

accept federal funding. However, if they

do, they have to comply with Title VI,

including its prohibition against

national origin discrimination by

recipients.

4. Ensuring Meaningful Access to LEP

Persons

(a) The Four Keys to Title VI

Compliance in the LEP Context

The key to providing meaningful

access to benefits and services for LEP

persons is to ensure that the language

assistance provided results in accurate

and effective communication between

the provider and LEP applicant/client

about the types of services and/or

benefits available and about the

applicant’s or client’s circumstances.

Although Treasury recipients have

considerable flexibility in fulfilling this

obligation, effective programs usually

have the following four elements:

• Assessment—The recipient

conducts a thorough assessment of the

language needs of the population to be

served;

• Development of Comprehensive

Written Policy on Language Access—

The recipient develops and implements

a comprehensive written policy that

will ensure meaningful communication;

• Training of Staff—The recipient

takes steps to ensure that staff

understand the policy and are capable

of carrying it out; and

• Vigilant Monitoring—The recipient

conducts regular oversight of the

language assistance program to ensure

that LEP persons meaningfully access

the program.

If implementation of one or more of

these measures would be so financially

burdensome as to defeat the legitimate

objectives of a recipient’s program, or if

the recipient utilizes an equally

effective alternative for ensuring that

LEP persons have meaningful access to

programs and services, Treasury will

not find the recipient in noncompliance.

However, recipients should gather and

maintain documentation to substantiate

any assertion of financial burden.

(b) Assessment

The first key to ensuring meaningful

access is for the recipient to assess the

language needs of the eligible

population. A recipient assesses

language needs by identifying:

• the number and proportion of LEP

persons eligible to be served or

encountered by the recipient, the

frequency of contact with LEP language

groups, the nature or importance of the

activity, benefit, or service, and the

resources of the recipient.

• the points of contact in the program

or activity where language assistance is

likely to be needed.

• the resources that will be needed to

provide effective language assistance.

• the location and availability of

these resources.

• the arrangements that must be made

to access these resources in a timely

fashion.

(c) Development of Comprehensive

Written Policy on Language Access

A recipient can ensure effective

communication by developing and

implementing a comprehensive written

language assistance program. This

program should include: policies and

procedures for identifying and assessing

the language needs of its LEP

applicants/clients; a range of oral

language assistance options; notice to

LEP persons in a language they can

understand of the right to free language

assistance; periodic training of staff;

monitoring of the program; and

Federal Register / Vol. 66, No. 45 / Wednesday, March 7, 2001 / Notices 13833

1The Americans with Disabilities Act and

Section 504 of the Rehabilitation Act of 1973 both

provide similar prohibitions against discrimination

on the basis of disability and require entities to

provide language assistance such as sign language

interpreters for hearing impaired individuals or

alternative formats such as Braille, large print or

tape for vision impaired individuals. In developing

a comprehensive language assistance program,

recipients should be mindful of their

responsibilities under the ADA and Section 504 to

ensure access to programs for individuals with

disabilities.

3The ‘‘safe harbor’’ provisions are not intended

to establish numerical thresholds for when a

recipient must translate documents. The numbers

and percentages included in these provisions are

based on the balancing of a number of factors,

including experience in enforcing Title VI in the

context of Treasury programs, and Treasury’s

discussions with other agencies about experiences

of their grant recipients with language access issues.

translation of written materials in

certain circumstances.2

(1) Oral Language Interpretation—In

designing an effective language

assistance program, a recipient should

develop procedures for obtaining and

providing trained and competent

interpreters and other oral language

assistance services, in a timely manner,

by taking some or all of the following

steps:

• hiring bilingual staff who are

trained and competent in the skill of

interpreting;

• hiring staff interpreters who are

trained and competent in the skill of

interpreting;

• contracting with an outside

interpreter service for trained and

competent interpreters;

• arranging formally for the services

of voluntary community interpreters

who are trained and competent in the

skill of interpreting;

• arranging/contracting for the use of

a telephone language interpreter service.

See Section D.6.(b) of this notice for

a discussion on ‘‘Competence of

Interpreters.’’

The following provides guidance to

recipients in determining which

language assistance options will be of

sufficient quantity and quality to meet

the needs of their LEP beneficiaries:

• Bilingual Staff—Hiring bilingual

staff for client contact positions

facilitates participation by LEP persons.

However, where there are a variety of

LEP language groups in a recipient’s

service area, this option may be

insufficient to meet the needs of all LEP

applicants and clients. Where this

option is insufficient to meet the needs,

the recipient must provide additional

and timely language assistance.

Bilingual staff must be trained and must

demonstrate competence as interpreters.

• Staff Interpreters—Paid staff

interpreters are especially appropriate

where there is a frequent and/or regular

need for interpreting services. These

persons must be competent and readily

available.

• Contract Interpreters—The use of

contract interpreters may be an option

for recipients that have an infrequent

need for interpreting services, have less

common LEP language groups in their

service areas, or need to supplement

their in-house capabilities on an asneeded basis. Such contract interpreters

must be readily available and

competent.

• Community Volunteers—Use of

community volunteers may provide

recipients with a cost-effective method

for providing interpreter services.

However, experience has shown that to

use community volunteers effectively,

recipients must ensure that formal

arrangements for interpreting services

are made with community organizations

so that these organizations are not

subjected to ad hoc requests for

assistance. In addition, recipients must

ensure that these volunteers are

competent as interpreters and

understand their obligation to maintain

client confidentiality. Additional

language assistance must be provided

where competent volunteers are not

readily available during all hours of

service.

• Telephone Interpreter Lines—A

telephone interpreter service line may

be a useful option as a supplemental

system, or may be useful when a

recipient encounters a language that it

cannot otherwise accommodate. Such a

service often offers interpreting

assistance in many different languages

and usually can provide the service in

quick response to a request. However,

recipients should be aware that such

services may not always have readily

available interpreters who are familiar

with the terminology peculiar to the

particular program or service. It is

important that a recipient not offer this

as the only language assistance option

except where other language assistance

options are unavailable.

(2) Translation of Written Materials—

An effective language assistance

program ensures that written materials

that are routinely provided in English to

applicants, clients and the public are

available in regularly encountered

languages other than English. It is

particularly important to ensure that

vital documents are translated. A

document will be considered vital if it

contains information that is critical for

accessing the services, rights, and/or

benefits, or is required by law. Thus,

vital documents include, for example,

applications; consent forms; letters and

notices pertaining to the reduction,

denial or termination of services or

benefits; and letters or notices that

require a response from the beneficiary

or client. For instance, if a complaint

form is necessary in order to file a claim

with an agency, that complaint form

would be vital information. Non-vital

information includes documents that

are not critical to access such benefits

and services.

As part of its overall language

assistance program, a recipient must

develop and implement a plan to

provide written materials in languages

other than English where a significant

number or percentage of the population

eligible to be served or likely to be

directly affected by the program needs

services or information in a language

other than English to communicate

effectively. (See 28 CFR 42.405(d)(1)).

Treasury will determine the extent of

the recipient’s obligation to provide

written translation of documents on a

case by case basis, taking into account

all relevant circumstances, including:

(1) The nature, importance, and

objective of the particular activity,

program, or service; (2) the number or

proportion of LEP persons eligible to be

served or encountered by the recipient;

(3) the frequency with which translated

documents are needed; and (4) the total

resources available to the recipient as

compared to the length of the document

and cost of translation.

One way for a recipient to know with

greater certainty that it will be found in

compliance with its obligation to

provide written translations in

languages other than English is for the

recipient to meet the guidelines

outlined in paragraphs (A) and (B)

below, which outline the circumstances

that provide a ‘‘safe harbor’’ for

recipients. A recipient that provides

written translations under these

circumstances can be confident that it

will be found in compliance with its

obligation under Title VI regarding

written translations.3 However, the

failure to provide written translations

under these circumstances outlined in

paragraphs (A) and (B) will not

necessarily mean noncompliance with

Title VI.

In such situations, Treasury will

review the totality of the circumstances

to determine the precise nature of a

recipient’s obligation to provide written

materials in languages other than

English as indicated earlier.

Treasury will consider a recipient to

be in compliance with its Title VI

obligation to provide written materials

in non-English languages if:

(A) The recipient provides translated

written materials, including vital

13834 Federal Register / Vol. 66, No. 45 / Wednesday, March 7, 2001 / Notices

4See Section D.4.(c)(2) above for a description of

vital documents. Large documents, such as

enrollment handbooks, may not need to be

translated in their entirety. However, vital

information contained in large documents must be

translated.

documents, for each eligible LEP

language group that constitutes ten

percent or 3,000, whichever is less, of

the population of persons eligible to be

served or likely to be directly affected

by the recipient’s program; 4

(B) Regarding LEP language groups

that do not fall within paragraph (A)

above, but constitute five percent or

1,000, whichever is less, of the

population of persons eligible to be

served or likely to be directly affected,

the recipient ensures that, at a

minimum, vital documents are

translated into the appropriate nonEnglish languages of such LEP persons.

Translation of other documents, if

needed, can be provided orally; and

(C) Notwithstanding paragraphs (A)

and (B) above, a recipient with fewer

than 100 persons in a language group

eligible to be served or likely to be

directly affected by the recipient’s

program, does not translate written

materials but provides written notice in

the primary language of the LEP

language group of the right to receive

competent oral translation of written

materials.

The term ‘‘persons eligible to be

served or likely to be directly affected’’

relates to the issue of what is the

recipient’s service area for purposes of

meeting its Title VI obligation. There is

no ‘‘one size fits all’’ definition of what

constitutes ‘‘persons eligible to be

served or likely to be directly affected’’

and Treasury will address this issue on

a case by case basis. Ordinarily, these

persons are those who are in the

geographic area that has been approved

by a federal grant agency as the

recipient’s service area. Thus, for

language groups that do not fall within

paragraphs (A) and (B), above, a

recipient can ensure access by providing

written notice in the LEP person’s

primary language of the right to receive

free language assistance.

Recent technological advances have

made it easier for recipients to store

translated documents readily. At the

same time, Treasury recognizes that

recipients in a number of areas, such as

many large cities, regularly serve LEP

persons from many different areas of the

world who speak dozens of different

languages. It would be unduly

burdensome to demand that recipients

in these circumstances translate all

written materials into these languages.

As a result, Treasury will determine the

extent of the recipient’s obligation to

provide written translations of

documents on a case by case basis,

looking at the totality of the

circumstances.

It is also important to ensure that the

person translating the materials is well

qualified. In addition, in some

circumstances verbatim translation of

materials may not accurately or

appropriately convey the substance of

what is contained in the written

materials. An effective way to address

this potential problem is to reach out to

community-based organizations to

review translated materials to ensure

that they are accurate and easily

understood by LEP persons.

(3) Methods for Providing Notice to

LEP Persons—A vital part of a wellfunctioning compliance program

includes having effective methods for

notifying LEP persons of their right to

language assistance and the availability

of such assistance free of charge. These

methods include but are not limited to:

• Use of language identification cards

that allow LEP persons to identify their

language needs to staff. To be effective,

the cards (e.g., ‘‘I speak’’ cards) must

invite the LEP person to identify the

language he/she speaks.

• Posting and maintaining signs in

regularly encountered languages other

than English in waiting rooms,

reception areas and other initial points

of entry. To be effective, these signs

must inform LEP persons of their right

to free language assistance services and

invite them to identify themselves as

persons needing such services.

• Translation of application forms

and instructional, informational and

other written materials into appropriate

non-English languages by competent

translators. For LEP persons whose

language does not exist in written form,

assistance from an interpreter to explain

the contents of the document.

• Uniform procedures for timely and

effective telephone communication

between staff and LEP persons. This

must include instructions for Englishspeaking employees to obtain assistance

from interpreters or bilingual staff when

receiving calls from or initiating calls to

LEP persons.

• Inclusion of statements about the

services available and the right to free

language assistance services, in

appropriate non-English languages, in

brochures, booklets, outreach and

recruitment information, and other

materials that are routinely

disseminated to the public.

(d) Training of Staff

Another vital element in ensuring that

its policies are followed is a recipient’s

dissemination of its policy to all

employees likely to have contact with

LEP persons, and periodic training of

these employees. Effective training

ensures that employees are

knowledgeable and aware of LEP

policies and procedures, are trained to

work effectively with in-person and

telephone interpreters, and understand

the dynamics of interpretation between

clients, providers and interpreters. It is

important that this training be part of

the orientation for new employees and

that all employees in client contact

positions be properly trained.

Recipients may find it useful to

maintain a training registry that records

the names and dates of employees’

training. Effective training is one means

of ensuring that there is not a gap

between a recipient’s written policies

and procedures, and the actual practices

of employees who are in the front lines

interacting with LEP persons.

(e) Monitoring and Updating the LEP

policy

Recipients should always consider

whether new documents, programs,

services, and activities need to be made

accessible for LEP individuals. They

should then provide needed language

services and notice of those services to

the LEP public and to employees. In

addition, Treasury recipients should

evaluate their entire language policy at

least every three years. One way to

evaluate the LEP policy is to seek

feedback from the community.

Recipients should assess:

• Current LEP populations in service

area.

• Current communication needs of

LEP individuals encountered by the

program.

• Whether existing assistance is

meeting the needs of such persons.

• Whether staff knows and

understands the LEP policy and how to

implement it.

• Whether identified sources for

assistance are still available and viable.

5. Treasury’s Assessment of Meaningful

Access

The failure to take all of the steps

outlined in Section D (4), above, will

not necessarily mean that a recipient

has failed to provide meaningful access

to LEP clients. The following are

examples of how meaningful access will

be assessed by Treasury:

• A small recipient has about 50 LEP

Hispanic clients and a small number of

employees, and asserts that he cannot

afford to hire bilingual staff, contract

with a professional interpreter service,

or translate written documents. To

accommodate the language needs of LEP

clients, the recipient has made

Federal Register / Vol. 66, No. 45 / Wednesday, March 7, 2001 / Notices 13835

arrangements with a Hispanic

community organization for trained and

competent volunteer interpreters, and

with a telephone interpreter language

line, to interpret during consultations

and to orally translate written

documents. There have been no client

complaints of inordinate delays or other

service related problems with respect to

LEP clients. Given the resources, the

size of the staff, and the size of the LEP

population, Treasury would find this

recipient in compliance with Title VI.

• A recipient with a large budget

serves 500,000 beneficiaries. Of the

beneficiaries eligible for services, 3,500

are LEP Chinese persons, 4,000 are LEP

Hispanic persons, 2,000 are LEP

Vietnamese persons and about 400 are

LEP Laotian persons. The recipient has

no policy regarding language assistance

to LEP persons, and LEP clients are told

to bring their own interpreters, are

provided with application and consent

forms in English and if unaccompanied

by their own interpreters, must solicit

the help of other clients or must return

at a later date with an interpreter. Given

the size of this program, its resources,

the size of the eligible LEP population,

and the nature of the program, Treasury

would likely find this recipient in

violation of Title VI and would likely

require it to develop a comprehensive

language assistance program that

includes all of the options discussed in

Section D.4. above.

6. Interpreters

Two recurring issues in the area of

interpreter services involve (a) the use

of friends, family, or minor children as

interpreters, and (b) the need to ensure

that interpreters are competent.

(a) Use of Friends, Family and Minor

Children as Interpreters

A recipient may expose itself to

liability under Title VI if it requires,

suggests, or encourages an LEP person

to use friends, minor children, or family

members as interpreters, as this could

compromise the effectiveness of the

service. Use of such persons could

result in a breach of confidentiality or

reluctance on the part of individuals to

reveal personal information critical to

their situations. In addition, family and

friends usually are not competent to act

as interpreters, since they are often

insufficiently proficient in both

languages, unskilled in interpretation,

and unfamiliar with specialized

terminology.

If after a recipient informs an LEP

person of the right to free interpreter

services, the person declines such

services and requests the use of a family

member or friend, the recipient may use

the family member or friend, if the use

of such a person would not compromise

the effectiveness of services or violate

the LEP person’s confidentiality. The

recipient should document the offer and

decline in the LEP person’s file. Even if

an LEP person elects to use a family

member or friend, the recipient should

suggest that a trained interpreter sit in

on the encounter to ensure accurate

interpretation.

(b) Competence of Interpreters

In order to provide effective services

to LEP persons, a recipient must ensure

that it uses persons who are competent

to provide interpreter services.

Competency does not necessarily mean

formal certification as an interpreter,

though certification is helpful. On the

other hand, competency requires more

than self-identification as bilingual. The

competency requirement contemplates

demonstrated proficiency in both

English and the other language,

orientation and training that includes

the skills and ethics of interpreting (e.g.,

issues of confidentiality), fundamental

knowledge in both languages of any

specialized terms, or concepts peculiar

to the recipient’s program or activity,

sensitivity to the LEP person’s culture

and a demonstrated ability to convey

information in both languages,

accurately. A recipient must ensure that

those persons it provides as interpreters

are trained and demonstrate

competency as interpreters.

7. Examples of Prohibited Practices

Listed below are examples of

practices which may violate Title VI:

• Providing services to LEP persons

that are more limited in scope or are

lower in quality than those provided to

other persons, or placing greater

burdens on LEP than on non-LEP

persons;

• Subjecting LEP persons to

unreasonable delays in the delivery of

services, or the provision of information

on rights;

• Limiting participation in a program

or activity on the basis of English

proficiency;

• Failing to inform LEP persons of the

right to receive free interpreter services

and/or requiring LEP persons to provide

their own interpreter.

E. Promising Practices

In meeting the needs of their LEP

clients, some recipients have found

unique ways of providing interpreter

services and reaching out to the LEP

community. Examples of promising

practices include the following:

Language Banks—In several parts of

the country, both urban and rural,

community organizations and providers

have created community language banks

that train, hire and dispatch competent

interpreters to participating

organizations, reducing the need to have

on-staff interpreters for low demand

languages. These language banks are

frequently nonprofit and charge

reasonable rates.

Pamphlets—A recipient has created

pamphlets in several languages, entitled

‘‘While Awaiting the Arrival of an

Interpreter.’’ The pamphlets are

intended to facilitate basic

communication between clients and

staff. They are not intended to replace

interpreters but may aid in increasing

the comfort level of LEP persons as they

wait for services.

Use of Technology—Some recipients

use their internet and/or intranet

capabilities to store translated

documents online. These documents

can be retrieved as needed.

Telephone Information Lines—

Recipients have established telephone

information lines in languages spoken

by frequently encountered language

groups to instruct callers, in the nonEnglish languages, on how to leave a

recorded message that will be answered

by someone who speaks the caller’s

language.

Signage and Other Outreach—Other

recipients have provided information

about services, benefits, eligibility

requirements, and the availability of free

language assistance, in appropriate

languages by (a) posting signs and

placards with this information in public

places such as grocery stores, bus

shelters and subway stations; (b) putting

notices in newspapers, and on radio and

television stations that serve LEP

groups; (c) placing flyers and signs in

the offices of community-based

organizations that serve large

populations of LEP persons; and (d)

establishing information lines in

appropriate languages.

F. Model Plan

The following example of a model

language assistance program may be

useful for recipients in developing their

plans. The plan incorporates a variety of

options and methods for providing

meaningful access to LEP individuals:

• A formal written language

assistance program.

• Identification and assessment of the

languages that are likely to be

encountered and estimating the number

of LEP persons that are eligible for

services and that are likely to be affected

by its program through a review of

census and client utilization data and

data from school systems and

community agencies and organizations.

13836 Federal Register / Vol. 66, No. 45 / Wednesday, March 7, 2001 / Notices

• Posting of signs in lobbies and in

other waiting areas, in several

languages, informing applicants and

clients of their right to free interpreter

services and inviting them to identify

themselves as persons needing language

assistance.

• Use of ‘‘I speak’’ cards by intake

workers and other contact personnel so

that they can identify their primary

languages.

• Keeping the language of the LEP

person in his/her record if such a record

would normally be kept for non-LEP

persons so that all staff can identify the

language assistance needs of the client.

• Employment of a sufficient number

of staff, bilingual in appropriate

languages, in client contact positions.

These persons must be trained and

competent as interpreters.

• Contracts with interpreting services

that can provide competent interpreters

in a wide variety of languages, in a

timely manner.

• Formal arrangements with

community groups for competent and

timely interpreter services by

community volunteers.

• An arrangement with a telephone

language interpreter line.

• Translation of application forms,

instructional, informational and other

key documents into appropriate nonEnglish languages. Provision of oral

interpreter assistance with documents,

for those persons whose language does

not exist in written form.

• Procedures for effective telephone

communication between staff and LEP

persons, including instructions for

English-speaking employees to obtain

assistance from bilingual staff or

interpreters when initiating or receiving

calls from LEP persons.

• Notice to and training of all staff,

particularly client contact staff, with

respect to the recipient’s Title VI

obligation to provide language

assistance to LEP persons, and on the

language assistance policies and the

procedures to be followed in securing

such assistance in a timely manner.

• Insertion of notices, in appropriate

languages, about the right of LEP

applicants and clients to free

interpreters and other language

assistance, in brochures, pamphlets,

manuals, and other materials

disseminated to the public and to staff.

• Notice to the public regarding the

language assistance policies and

procedures, and notice to and

consultation with community

organizations that represent LEP

language groups, regarding problems

and solutions, including standards and

procedures for using their members as

interpreters.

• Adoption of a procedure for the

resolution of complaints regarding the

provision of language assistance; and for

notifying clients of their right to and

how to file a complaint under Title VI

with Treasury.

• Appointment of a senior level

employee to coordinate the language

assistance program, and assurance that

there is regular monitoring of the

program.

G. Compliance and Enforcement

Treasury will enforce recipients’

responsibilities to LEP beneficiaries

through procedures provided for in Title

VI regulations. These procedures

include complaint investigations,

compliance reviews, efforts to secure

voluntary compliance, and technical

assistance. Treasury will always provide

recipients with the opportunity to come

into voluntary compliance prior to

initiating formal enforcement

proceedings.

In determining compliance with Title

VI, Treasury’s concern will be whether

the recipient’s policies and procedures

allow LEP persons to overcome

language barriers and participate

meaningfully in programs, services and

benefits. A recipient’s appropriate use of

the methods and options discussed in

this guidance will be viewed by

Treasury as evidence of a recipient’s

intent to comply with Title VI.

H. Complaint Process

Anyone who believes that he/she has

been discriminated against because of

race, color or national origin in violation

of Title VI may file a complaint with

Treasury within 180 days of the date on

which the discrimination took place.

The following information should be

included:

• Your name and address (a

telephone number where you may be

reached during business hours is

helpful, but not required);

• A general description of the

person(s) or class of persons injured by

the alleged discriminatory act(s);

• The name and location of the

organization or institution that

committed the alleged discriminatory

act(s);

• A description of the alleged

discriminatory act(s) in sufficient detail

to enable the Office of Equal

Opportunity Program (OEOP) to

understand what occurred, when it

occurred, and the basis for the alleged

discrimination.

• The letter or form must be signed

and dated by the complainant or by

someone authorized to do so on his or

her behalf.

A recipient may not retaliate against

any person who has made a complaint,

testified, assisted or participated in any

manner in an investigation or

proceeding under the statutes governing

federal financial assistance programs.

Civil rights complaints should be filed

with: Department of the Treasury, Office

of Equal Opportunity Program 1500

Pennsylvania Avenue, NW, Room 6071

Metropolitan Square, Washington, DC

20220.

I. Technical Assistance

Treasury and its bureaus will provide

technical assistance to recipients, and

will continue to be available to provide

such assistance to any recipient seeking

to ensure that it operates an effective

language assistance program. In

addition, during its investigative

process, Treasury is available to provide

technical assistance to enable recipients

to come into voluntary compliance.

[FR Doc. 01–5412 Filed 3–6–01; 8:45 am]

BILLING CODE 4810–25–P

DEPARTMENT OF THE TREASURY

Internal Revenue Service

[BPG–132413–00]

Dealers in Securities Futures

Contracts; Request for Comments

AGENCY: Internal Revenue Service (IRS),

Treasury.

ACTION: Notice of solicitation of

comments.

SUMMARY: The IRS and Treasury

Department are soliciting comments on

the criteria that should be used to

determine whether a taxpayer is a dealer

in securities futures contracts (or

options on such contracts) for purposes

of section 1256 of the Internal Revenue

Code.

DATES: Written and electronic comments

are requested on or before May 7, 2001.

ADDRESSES: Send submissions to:

CC:M&SP:RU (BPG–132413–00), room

5226, Internal Revenue Service, POB

7604, Ben Franklin Station, Washington,

DC 20044. Submissions may be hand

delivered between the hours of 8 a.m.

and 5 p.m. to: CC:M&SP:RU (BPG–

132413–00), Courier’s Desk, Internal

Revenue Service, 1111 Constitution

Avenue NW., Washington, DC.

Alternatively, taxpayers may submit

comments electronically via the Internet

by submitting comments directly to the

IRS Internet site at http://www.irs.gov/

tax_regs/regslist.html.

FOR FURTHER INFORMATION CONTACT:

Concerning the notice, Patrick E. White