[Federal Register Volume 69, Number 157 (Monday, August 16, 2004)]
[Notices]
[Pages 50366-50376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18636]


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DEPARTMENT OF ENERGY


Nondiscrimination in Federally Assisted Programs Enforcement of 
Title VI of the Civil Rights Act of 1964--Prohibition Against National 
Origin Discrimination Affecting Persons With Limited English 
Proficiency (LEP); Policy Guidance

AGENCY: Department of Energy.

ACTION: Notice of Interim Policy Guidance and request for comment.

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SUMMARY: The Department of Energy (DOE) publishes this Interim Policy 
Guidance on Nondiscrimination in Federally Assisted Programs, 
Enforcement of Title VI of the Civil Rights Act of 1964--Prohibition 
Against National Discrimination Affecting Persons with Limited English 
Proficiency (LEP). This Policy Guidance applies to all Departmental 
offices, including the National Nuclear Security Administration.

DATES: The Policy Guidance is effective immediately. Comments must be 
submitted on or before September 15, 2004. DOE's Office of Civil Rights 
and Diversity will review all comments and make modifications it deems 
necessary.

ADDRESSES: Written comments should be submitted to Sharon P. Wyatt, 
Office of Civil Rights and Diversity, Rm 5B-168, 1000 Independence 
Avenue, SW., Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT: Sharon P. Wyatt, Room 5B-168, 1000 
Independence Avenue, SW., Washington, DC 20585, or telephone (202) 586-
2256; TDD (202) 586-5329, or e-mail at [email protected].

SUPPLEMENTARY INFORMATION: To ensure compliance with Title VI of the 
Civil Rights Act of 1964, 42U.S.C. 2000d et seq., and its prohibition 
of discrimination on the basis of national origin, and with Executive 
Order 13166, the Department of Energy issues the following Policy 
Guidance regarding the Title VI prohibition against national origin 
discrimination affecting persons with limited English proficiency 
(LEP). This Guidance is intended to clarify standards consistent with 
case law and well established legal principles. It was prepared by the 
Department of Energy's Office of Civil Rights and Diversity and is 
based on policy guidance from the Department of Justice.

    Issued in Washington, DC, on August 2, 2004.
Kyle McSlarrow,
Deputy Secretary, Department of Energy.

Policy Guidance: Nondiscrimination in Federally Assisted Programs, 
Enforcement of Title VI of the Civil Rights Act of 1964--Prohibition 
Against National Origin Discrimination Affecting Persons With Limited 
English Proficiency (LEP).

I. Introduction

    This Policy Guidance clarifies how recipients of financial 
assistance from the Department of Energy (including the National 
Nuclear Security Administration) can meet their obligation to ensure 
that persons with limited English proficiency have meaningful and 
timely access to their programs and activities.
    Most individuals living in the United States read, write, speak and 
understand English. There are many individuals, however, for whom 
English is not their primary language. If these individuals have 
limited ability to read, write, speak or understand English, they are 
limited English proficient, or ``LEP.'' Language for LEP individuals 
can be a barrier to accessing important benefits or services, 
understanding and exercising important rights, complying with 
applicable responsibilities, or understanding other information 
provided by federally funded programs and activities. The Federal 
Government funds an array of services that can be made accessible to 
otherwise eligible LEP persons. The Federal Government is committed to 
improving the accessibility of these programs and activities to 
eligible LEP persons, a goal that reinforces its equally important 
commitment to promoting programs and activities designed to help 
individuals learn English. Recipients of Federal financial assistance 
should not overlook the long-term positive impacts of incorporating or 
offering English as a Second Language (ESL) programs in parallel with 
language assistance services. ESL courses can serve as an important 
adjunct to a proper LEP plan. However, the fact that ESL classes are 
made available does not obviate the statutory and regulatory 
requirement of meaningful access for LEP individuals. Recipients of 
Federal financial assistance have an obligation to reduce language 
barriers that can preclude meaningful access by LEP persons to 
important government assisted programs and activities.
    Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., 
as amended, provides that ``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.'' Department of Energy (DOE) regulations 
implementing Title VI are codified at 10 CFR part 1040. The regulations 
specifically prohibit a recipient under any program, directly or 
through contractual or other arrangements from, among other things, 
utilizing criteria or methods of administration which have the effect 
of subjecting individuals to discrimination because of their race, 
color, or national origin. 10 CFR 1040.13(c). 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 in Title VI and Title VI regulations against national 
origin discrimination.
    This guidance is issued pursuant to Title VI of the Civil Rights 
Act of 1964, Title VI regulations, and Executive Order 13166, titled, 
``Improving Access to Services by Persons with Limited English 
Proficiency.'' 65 FR 50121 (August 16, 2000). Executive Order 13166 
requires that agencies that provide Federal financial assistance 
develop, if they have not already done so, guidance for their 
recipients on the

[[Page 50367]]

Title VI and regulatory requirement to provide meaningful access to 
persons who are limited English proficient.
    This Policy Guidance clarifies existing legal requirements by 
providing a description of factors recipients should consider in 
fulfilling their responsibilities to LEP persons. This Policy Guidance 
is not a regulation, and does not create any legally binding or 
enforceable requirements or obligations. Rather, it is a guide which 
provides an analytical framework which may be used to determine how 
best to comply with statutory and regulatory obligations to provide 
meaningful access for LEP persons to the benefits, services, 
information, and other important portions of programs and activities. 
This framework also sets out the criteria DOE intends to apply when 
determining whether recipients are in compliance with Title VI and DOE 
regulations.
    In providing this Guidance, consistency among Departments of the 
federal government is particularly important. Inconsistency or 
contradictory guidance could confuse recipients of Federal funds and 
needlessly increase costs without rendering the meaningful access for 
LEP persons that this Guidance is designed to address. 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 persons behind simply because they face 
challenges communicating in English. This is of particular importance 
because, in many cases, LEP individuals form a substantial portion of 
those encountered in federally-assisted programs. Second, we must 
achieve this goal while finding constructive methods to reduce the 
costs of LEP requirements on small businesses, small local governments, 
or small non-profits that receive federal financial assistance.
    There are many productive steps that the Federal Government, either 
collectively or as individual grant agencies, can take to help 
recipients reduce the costs of language services without sacrificing 
meaningful access for LEP persons. Without these steps, certain smaller 
grantees may well choose not to participate in federally assisted 
programs, threatening the critical functions that the programs strive 
to provide. To that end, the Department plans to continue to provide 
assistance and guidance in this important area. Moreover, DOE intends 
to work with the Department of Justice (DOJ) to explore how language 
assistance measures, resources and cost-containment approaches 
developed with respect to federally conducted programs and activities 
can be effectively shared or otherwise made available to recipients, 
particularly small businesses, small local governments, and small non-
profits. An interagency working group on LEP has developed a Web site, 
http://www.lep.gov, to assist in disseminating this information to 
recipients, federal agencies, and the communities being served.
    Many commentators have noted that some have interpreted the case of 
Alexander v. Sandoval, 532 U.S. 275 (2001), as impliedly striking down 
the regulations promulgated under Title VI that form the basis for the 
part of Executive Order 13166 that applies to federally assisted 
programs and activities. DOJ and DOE 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 
LEP persons.

II. Legal Authority

    The obligation of recipients of Federal financial assistance is set 
forth in Section 601 of Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d. Section 601 provides that no person shall ``on the ground 
of race, color, or national origin, be excluded from participation in, 
be denied the benefits of, or be subjected to discrimination under any 
program or activity receiving Federal financial assistance.'' Section 
602 authorizes and directs Federal Agencies to issue rules, 
regulations, or orders of general applicability. As noted above, DOE 
regulations specifically prohibit a recipient under any program, 
directly or through contractual or other arrangement from, among other 
things, utilizing criteria or methods of administration which have the 
effect of subjecting individuals to discrimination because of their 
race, color, or national origin. 10 CFR Sec.  1040.13(c).
    The Supreme Court, in Lau v. Nichols, 414 U.S. 563 (1974), 
interpreted regulations promulgated by the former Department of Health, 
Education, and Welfare, including Title VI regulations similar to those 
of DOE, to hold that Title VI prohibits conduct that has a 
disproportionate effect on LEP persons because such conduct constitutes 
national-origin discrimination. In Lau, a San Francisco school district 
that had a significant number of students of Chinese origin was 
required to take reasonable steps to provide them with a meaningful 
opportunity to participate in federally funded educational programs.
    On August 11, 2000, Executive Order 13166 was issued. ``Improving 
Access to Services for Persons with Limited English Proficiency,'' 65 
FR 50121 (August 16, 2000). Under that order, every federal agency that 
provides financial assistance to non-federal entities must publish 
guidance on how their recipients can provide meaningful access to LEP 
persons and thus comply with Title VI regulations forbidding funding 
recipients from ``restrict[ing] an individual in any way in the 
enjoyment of any advantage or privilege enjoyed by others receiving any 
service, financial aid, or other benefit under the program'' or from 
``utiliz[ing] criteria or methods of administration which have the 
effect of subjecting individuals to discrimination because of their 
race, color, or national origin, or have the effect of defeating or 
substantially impairing accomplishment of the objectives of the program 
as respects individuals of a particular race, color, or national 
origin.''
    On the same day that Executive Order 13166 was signed, DOJ issued a 
Policy Guidance Document to Agencies, entitled ``Enforcement of Title 
VI of the Civil Rights Act of 1964-- National Origin Discrimination 
Against Persons with Limited English Proficiency'' (hereinafter 
referred to as ``General DOJ LEP Guidance''), 65 FR 50123 (August 16, 
2000), setting forth general principles for agencies to apply in 
developing guidance documents for recipients pursuant to the Executive 
Order.
    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, the Assistant Attorney General for Civil Rights 
issued a clarifying memorandum to all federal agencies on this issue. 
The memorandum reaffirmed the General DOJ LEP Guidance in light of 
Sandoval.\1\ The Assistant Attorney

[[Page 50368]]

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.
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    \1\ The memorandum noted that some commentators have interpreted 
Sandoval as impliedly striking down the disparate-impact regulations 
promulgated under Title VI that form the basis for the part of the 
Executive Order 13166 that applies to Federally assisted programs 
and activities. The memorandum, however, made clear that DOJ 
disagreed with the commentators' interpretation. Sandoval holds 
principally that there is no private right of action to enforce 
Title VI disparate-impact regulations. It did not address the 
validity of those regulations or Executive Order 13166 or otherwise 
limit the authority and responsibility of Federal grant agencies to 
enforce their own implementing regulations.
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    Subsequently, on June 18, 2002, DOJ issued additional Final 
Guidance specific to DOJ recipients, entitled ``Guidance to Federal 
Financial Assistance Recipients Regarding Title VI Prohibition Against 
National Origin Discrimination Affecting Limited English Proficient 
Persons. 67 FR 41455 (June 18, 2002) (DOJ Recipient Guidance). As 
required by the Executive Order, this DOE guidance is consistent with 
Title VI, Title VI regulations, the General DOJ LEP Guidance and the 
DOJ Recipient Guidance.

III. Applicability

    All recipients of financial assistance from the Department of 
Energy, either directly or indirectly, are covered by this Policy 
Guidance and must provide meaningful access to LEP persons. Federal 
financial assistance may be money paid, property transferred, or other 
Federal financial assistance, including training, use of equipment, 
donations of surplus property, provision of real or personal property 
at below-market rates, the detail of, or provision of services by, 
Federal personnel, and any Federal agreement, arrangement or other 
contract which has as one of its purposes the provision of 
assistance.\2\
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    \2\ Pursuant to Executive Order 13166, the meaningful access 
requirement of the Title VI regulations and the four-factor analysis 
set forth in this guidance are to additionally apply to the programs 
and activities of the Federal agencies, including DOE's federally 
conducted programs and activities.
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    The broad categories of DOE recipients include:
    (1) Departments or offices of State or local governmental entities, 
such as State energy commissions and social services agencies;
    (2) Colleges, universities, and other post-secondary educational 
institutions, public systems of higher education, local educational 
agencies, systems of vocational education, and other school systems;
    (3) Private entities, such as corporations, partnerships, and sole 
proprietorships, such as utilities and power plants; and
    (4) Entities that are a combination of any of those groups.
    Coverage extends to a recipient's entire program or activity, i.e. 
to all parts of a recipient's operations. This is true even if only one 
part of the recipient's program or activity receives the Federal 
assistance.
    Example: DOE provides funding to States to assist low-income 
residents in defraying the costs of heating fuel (Weatherization 
Assistance for Low-Income Persons). States, in turn, administer these 
funds through their social services agencies. Coverage under Title VI 
then extends to not only the Weatherization Program, but the entire 
social service agency. However, should DOE decide to terminate Federal 
funds based upon non-compliance with Title VI or DOE regulations, only 
funds directed to the particular program or activity (Weatherization 
Program, in this case) that is out of compliance will be effected. See 
42 U.S.C. 2000d.1.
    Example: When educational institutions or agencies receive DOE 
financial assistance, the entire educational institution or agency is 
covered, including all of the operations of a public system of higher 
education if any portion of that system receives assistance.
    Example: All operations of an entire corporation, partnership, or 
other private organization or a sole proprietorship are covered if the 
assistance is extended to the entity as a whole or if the entity is 
principally engaged in the business of providing education, health 
care, housing, social services, or parks and recreation. When neither 
of these is true, only the entire plant or other comparable, 
geographically separate facility to which Federal financial assistance 
is extended is covered.
    Some specific DOE programs providing Federal financial assistance 
for recipients to whom this Guidance applies include, but are not 
limited to, the following:

--Weatherization Assistance for Low-income Persons;
--Energy-Related Inventions;
--Management and Technical Assistance for Minority Business Enterprise;
--Granting of the exclusive or non exclusive use of DOE-owned patent 
licenses;
--National Energy Information Center;
--State Energy Program;
--University Coal Research and the Clean Coal Initiative;
--Science and Energy Training to Support Diversity-Related Programs;
--Energy Efficiency and Renewable Energy Information Dissemination;
--Outreach, Training and Technical Analysis/Assistance; and
--Solar Energy Partnership Support and Barrier Elimination.

IV. State or Local Official English Laws

    Some recipients operate in jurisdictions where 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 assistance to persons with limited 
English proficiency.

V. Limited English Proficient Individual Defined

    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 may be entitled to 
language assistance with respect to a particular type of service, 
benefit, or encounter.
    Examples of populations likely to include LEP persons who may be 
encountered and/or served by DOE recipients, and that should be 
considered when planning language services include, but are not limited 
to, for example:

--Low income persons eligible to participate in DOE recipient State 
social services agency programs and activities or weatherization 
assistance;
--Populations in and around DOE recipient power plant facilities, 
utilities, or environmental clean-up activities;
--Persons seeking assistance, services, benefits, or information, or 
having other contact with DOE assisted programs or activities, 
including Minority Business Enterprises, energy information programs 
and activities, educational programs and activities, social services, 
utilities, or other recipients of DOE funds;
--Persons who are the subject of or affected by research, surveys, 
environmental plans, or other analyses performed by recipients of DOE 
funds; and/or
--Parents and family members of the above.

VI. How Does a Recipient Determine the Extent of Its Obligation To 
Provide Language Services?

    Recipients are required to take reasonable steps to ensure 
meaningful access to their programs and activities by LEP persons. 
While designed to be a flexible and fact-dependent standard, the 
starting point is an individualized assessment that balances the 
following four factors:
    (1) The number or proportion of LEP persons eligible to be served 
or likely to be encountered by the program or grantee;

[[Page 50369]]

    (2) The frequency with which LEP individuals come in contact with 
the program;
    (3) The nature and importance of the program, activity, or service 
provided by the program to people's lives; and
    (4) The resources available to the grantee/recipient and costs. As 
indicated above, the intent of this guidance is to suggest a balance 
that ensures meaningful access by LEP persons to recipient programs and 
activities while not imposing undue burdens on small business, small 
local governments, or small nonprofits.
    After applying the above four-factor analysis, a recipient may 
conclude that different language assistance measures are sufficient for 
the different types of programs or activities in which it engages. For 
instance, some of a recipient's activities will be more important than 
others and/or have greater impact on or contact with LEP persons, and 
thus may require more in the way of language assistance. The 
flexibility that recipients have in addressing the needs of the LEP 
populations they serve does not diminish, and should not be used to 
minimize, the obligation that those needs be addressed. DOE recipients 
should apply the following four factors to the various kinds of 
contacts that they have with the public to assess language needs and 
decide what reasonable steps they should take to ensure meaningful 
access for LEP persons.

(1) The Number or Proportion of LEP Persons Served or Encountered in 
the Eligible Service Population

    One factor in determining what language services recipients should 
provide is the number or proportion of LEP persons from a particular 
language group served or encountered in the eligible service population 
or population encountered. The greater the number or proportion of LEP 
persons, the more likely language services are needed. Ordinarily, 
persons ``eligible to be served, or likely to be directly affected, 
by'' a recipient's program or activity are those who are served or 
encountered in the eligible service population. This population will be 
program-specific, and includes persons who are in the geographic area 
that has been approved by a Federal grant agency as the recipient's 
service area. Where, for instance, a particular county that is a 
subrecipient of a State recipient of DOE weatherization assistance 
serves a large LEP population, the appropriate service area is most 
likely the county, and not the entire population served by the State 
recipient. If, for instance, there are particular offices or partners 
within the county that serve localized areas with high proportions of 
LEP individuals, those localized areas would likely be the appropriate 
service area. Where no service area has previously been approved, the 
relevant service area may be that which is approved by state or local 
authorities or designated by the recipient itself, provided that these 
designations do not themselves discriminatorily exclude certain 
populations. When considering the number or proportion of LEP 
individuals in a service area, recipients should consider LEP parent(s) 
when their English-proficient or LEP minor children and dependents 
encounter the recipient.
    Recipients should examine their prior experiences with LEP 
encounters and determine the breadth and scope of language services 
that were needed. In conducting this analysis, it is important to 
include language minority populations that are eligible for their 
programs or activities but may be underserved because of existing 
language barriers. Other data should be consulted to refine or validate 
a recipient's prior experience, including the latest census data for 
the area served, data from school systems and from community 
organizations, and data from state and local governments. 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 recipient's programs 
and activities where language services are provided. When using 
demographic data, the focus should be on languages spoken by those 
persons who are not proficient in English and not on languages spoken 
by persons who have the ability to speak English proficiently and also 
another language.

(2) The Frequency With Which LEP Individuals 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 language groups. 
The more frequent the contact with a particular language group, the 
more likely that enhanced language services in that language are 
needed. The steps that are reasonable for a recipient that serves an 
LEP person on a one-time basis will be very different from those 
expected for a recipient that serves LEP persons daily. It is also 
advisable to consider the frequency of different types of language 
contacts. For example, frequent contacts with Spanish-speaking persons 
who are limited English proficient may require certain assistance in 
Spanish. Less frequent or unpredictable contact with different language 
groups may require less intensive solutions. Daily contact with LEP 
persons will impose greater duties than if the same individual's 
program or activity contact is unpredictable or infrequent. But even 
recipients that serve LEP persons on an unpredictable or infrequent 
basis should use this balancing analysis to determine what to do if an 
LEP individual seeks services under the program in question. This plan 
need not be intricate. It may be as simple as being prepared to use one 
of the commercially-available telephonic interpretation services to 
obtain immediate interpretation. In applying this standard, recipients 
should take care to consider whether sufficient outreach to LEP persons 
could increase the frequency of contact with LEP language groups.

(3) The Nature and Importance of the Program, Activity, or Service 
Provided by the Program

    The more important the activity, information, service, or program, 
or the greater the possible consequences of the contact to the LEP 
individuals, the more likely language services are needed. For example, 
the obligations to communicate critical safety information or how to 
apply for important benefits or services would be far greater than that 
to provide language services in a recreational setting. A recipient 
needs to determine whether denial or delay of access to services or 
information could have serious or even life-threatening implications 
for the LEP individual. Decisions by a Federal, state, or local entity, 
or by the recipient, to make an activity compulsory, such as submission 
of a completed form, the right to an appeals process, or compulsory 
education, can serve as strong evidence of the program's importance.

(4) The Resources Available to the Recipient and Costs

    A recipient's level of resources and the costs that would be 
imposed on it may have an impact on the nature of the steps it should 
take. Smaller recipients with more limited budgets are not expected to 
provide the same level of language services as larger recipients with 
larger budgets. In addition, ``reasonable steps'' cease to be 
reasonable when the costs imposed substantially exceed the benefits.
    Example: Many DOE recipients of financial assistance are small 
commercial research and commercial firms that employ a few scientists 
to conduct their research activities. While

[[Page 50370]]

research on, for instance, health or environmental effects should be 
conducted in such a way as to include effects on relevant populations 
regardless of language spoken and thus may call for language services 
in order to communicate effectively with the studied populations, it 
would likely not be reasonable, in light of the costs imposed and the 
limited benefits to LEP persons, for such small specialized recipients 
to undertake full translations of lengthy and technical research 
reports. Under many circumstances involving scientific studies 
affecting a significant number or proportion of LEP persons, 
translations of report summaries may be more appropriate in addressing 
the interests and informational needs of LEP persons.
    However, resource and cost issues can often be reduced by 
technological advances; the sharing of language assistance materials 
and services among and between recipients, advocacy groups, and Federal 
grant agencies; and reasonable business practices. For example, 
translating only those documents that are targeted at the general 
public or that would be read or used by LEP persons, hiring and 
training bilingual staff to serve as interpreters and translators, 
information sharing through industry groups, telephonic and video 
conferencing interpretation services, pooling resources, standardizing 
documents to reduce translation needs, using qualified translators and 
interpreters to ensure that documents need not be ``fixed'' later and 
that inaccurate interpretations do not cause delay or other costs, 
centralizing interpreter and translator services to achieve economies 
of scale, or the formalized use of qualified community volunteers may 
all help to reduce costs. Small recipients with limited resources and 
few LEP encounters may find that entering into a bulk telephonic 
interpretation service contract will prove cost effective. Recipients 
should carefully explore the most cost-effective means of delivering 
competent and accurate language services before limiting services 
because of cost or resource concerns. Large entities and those that 
serve a significant number or proportion of LEP individuals should 
ensure that their resource limitations are well-substantiated before 
using this factor as a reason to limit language assistance. It may be 
useful to document the basis for limiting language services.
    The four-factor analysis necessarily implicates the ``mix'' of LEP 
services required. Recipients have two main ways to provide language 
services: Oral interpretation either in person or via telephone 
interpretation service (hereinafter ``interpretation'') and written 
translation (hereinafter ``translation''). Oral interpretation can 
range from on-site interpreters for critical services provided to a 
high volume of LEP persons to access through commercially-available 
telephonic interpretation services. Written translation, likewise, can 
range from translation of an entire document to translation of a short 
description of the document. In some cases, language services should be 
made available on an expedited basis while in others the LEP individual 
may be referred to another office of the recipient for language 
assistance.
    The correct mix should be based on what is both necessary and 
reasonable in light of the four-factor analysis. For instance, a 
weatherization program in a largely Hispanic neighborhood may need 
immediate oral interpreters available and should give serious 
consideration to hiring some bilingual staff. In contrast, there may be 
circumstances where the importance and nature of the activity and 
number or proportion and frequency of contact with LEP persons may be 
low and the costs and resources needed to provide language services may 
be high--such as in the case of a voluntary public tour of a power 
plant--in which pre-arranged language services for the particular 
service may not be necessary.
    A program providing assistance to those who cannot afford utility 
service in an area where there is a significant population of LEP 
persons eligible for that service will rank high under the four factor 
analysis and will need to implement more significant language service 
measures. However, certain university operations, such as the provision 
of a degree program in nuclear physics, that serve or encounter few or 
no eligible LEP persons will rank low on the four factors and have few 
or no language assistance responsibilities.
    The language assistance needs of LEP persons may be addressed 
through an assessment, based on the four factors, of the programs or 
activities where language assistance is more likely to be needed. 
Policies and procedures should then be developed to address these 
program areas and activities. Emphasis should be placed on the non-
English languages that are mostly likely to be spoken by the population 
utilizing the program or activity. In addition, consideration must be 
given to what resources will be needed to accommodate the non-English 
speaking population and the location and availability of such 
resources. In circumstances in which language services are warranted, 
the provision of resources should not place an undue burden on the LEP 
beneficiary, nor should the LEP beneficiary bear any financial cost for 
such services.
    Regardless of the type of language service provided, quality and 
accuracy of those services can be critical in order to avoid serious 
consequences to the LEP person and to the recipient. Recipients have 
substantial flexibility in determining the appropriate mix.

VII. Selecting Language Assistance Services

    Recipients have two main ways to provide language services: oral 
and written language services. Quality and accuracy of the language 
service is critical in order to avoid serious consequences to the LEP 
person and to the recipient.

A. Oral Language Services (Interpretation)

    Interpretation is the act of listening to something in one language 
(source language) and orally translating it into another language 
(target language). Where interpretation is needed and is reasonable, 
recipients should consider some or all of the following options for 
providing competent interpreters in a timely manner:
    Competence of Interpreters. When providing oral assistance, 
recipients should ensure competency of the language service provider, 
no matter which of the strategies outlined below are used. Competency 
requires more than self-identification as bilingual. Some bilingual 
staff and community volunteers, for instance, may be able to 
communicate effectively in a different language when communicating 
information directly in that language, but not be competent to 
interpret in and out of English. Likewise, they may not be able to do 
written translations.
    Competency to interpret, however, does not necessarily mean formal 
certification as an interpreter, although certification is helpful. 
When using interpreters, recipients should ensure that they:
    Demonstrate proficiency in, and ability to communicate information 
accurately in both English and in the other language, and identify and 
employ the appropriate mode of interpreting (e.g., consecutive, 
simultaneous, summarization, or sight translation);
    Have knowledge in both languages of any specialized terms or 
concepts peculiar to the entity's program or activity and of any 
particularized vocabulary and phraseology used by the

[[Page 50371]]

LEP person; \3\ and understand and follow confidentiality and 
impartiality rules to the extent their position requires.
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    \3\ Many languages have ``regionalisms,'' or differences in 
usage. For instance, a word that may be understood to mean something 
in Spanish for someone from Cuba may not be so understood by someone 
from Mexico. In addition, because there may be languages which do 
not have an appropriate direct interpretation of some energy or 
social service-related terms and the interpreter should be so aware 
and be able to provide the most appropriate interpretation. The 
interpreter should likely make the recipient aware of the issue and 
the interpreter and recipient can then work to develop a consistent 
and appropriate set of descriptions of these terms in that language 
that can be used again, when appropriate.
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    Understand and adhere to their role as interpreters without 
deviating into a role as counselor, legal advisor, or other roles 
(particularly in administrative hearings or other more formal 
contexts).
    Example: In order to meet the eligibility requirements for the 
Weatherization Program, States, using various criteria, require 
applicants to provide sensitive information regarding the amount and 
source of their income and assets. LEP persons needing interpreters or 
translations will need to be assured that the interpreter or translator 
does not divulge this information to anyone other than the appropriate 
officials.\4\
---------------------------------------------------------------------------

    \4\ For those languages in which no formal accreditation or 
certification currently exists, recipients should consider a formal 
process for establishing the credentials of the interpreter.
---------------------------------------------------------------------------

    Example: Where proceedings being interpreted are lengthy, the 
interpreter will likely need breaks, and team interpreting may be 
appropriate to ensure accuracy and to prevent errors caused by mental 
fatigue of interpreters.
    Example: Local agencies receive DOE financial assistance to 
independently monitor DOE environmental restoration programs at or near 
DOE facilities for environmental impacts. Monitoring activities have 
included assessments of air quality, ground-water and radioactivity 
surveillance. Such activities have been conducted in the State of New 
Mexico at the Sandia National Laboratory, the Inhalation and Toxicology 
Research Institute in Albuquerque, and the Los Alamos National 
Laboratory in Los Alamos. In and around these communities there are 
significant LEP populations potentially affected by the activities of 
DOE. In order to inform the public of their findings, the monitoring 
agencies conduct public outreach, such as public meetings and speaking 
forums, and publish newsletters and technical reports. Much of the 
information presented is highly technical in nature, and it will 
require language services that are of highest quality. The interpreter 
or translator should be able to skillfully translate the specialized 
terminology, and convey technical concepts with accuracy, and just as 
the outreach needs to be understandable to an English-speaking 
layperson, so too should the interpretation be understandable to an LEP 
layperson.
    Finally, when interpretation is needed and is reasonable, it should 
be provided in a timely manner in order to be meaningful and effective. 
While there is no single definition for ``timely'' applicable to all 
types of interactions at all times by all types of recipients, one 
clear guide is that the language assistance should be provided at a 
time and place that avoids the effective denial of the service, 
benefit, or right at issue or the imposition of an undue burden on or 
delay in important rights, benefits, or services to the LEP person. For 
example, meaningful access is not provided when notices of public 
hearings concerning recipient activities in areas having significant 
LEP populations are publicized only in English or an insufficient 
number of days before the event takes place. When the timeliness of 
services is important, such as with certain activities of DOE 
recipients providing health and safety services, important benefits or 
warnings, and when important legal rights are at issue, a recipient 
might not be providing meaningful access if it had one bilingual 
staffer available one day a week to provide the service. Such conduct 
might result in delays for LEP persons that would be significantly 
greater than those for English proficient persons. Conversely, where 
access to or exercise of a service, benefit, or right is not 
effectively precluded by a reasonable delay, language assistance can 
likely be delayed for a reasonable period.
    Hiring Bilingual Staff. When particular languages are encountered 
often, hiring bilingual staff offers one of the best, and often most 
economical, options. Recipients can, for example, fill public contact 
positions, such as public helpline or information line operators, 
social service workers, direct providers of services, etc., with staff 
who are bilingual and competent to communicate directly with LEP 
persons in their language. If bilingual staff are also used to 
interpret between English speakers and LEP persons, or to orally 
interpret written documents from English into another language, they 
should be competent in the skill of interpreting. Being bilingual does 
not necessarily mean that a person has the ability to interpret. In 
addition, there may be times when the role of the bilingual employee 
may conflict with the role of an interpreter (for instance, a bilingual 
law clerk would probably not be able to perform effectively the role of 
a courtroom or administrative hearing interpreter and law clerk at the 
same time, even if the law clerk were a qualified interpreter). 
Effective management strategies, including any appropriate adjustments 
in assignments and protocols for using bilingual staff, can ensure that 
bilingual staff are fully and appropriately utilized. When bilingual 
staff cannot meet all of the language service obligations of the 
recipient, the recipient should turn to other options.
    Hiring Staff Interpreters. Hiring interpreters may be most helpful 
where there is a frequent need for interpreting services in one or more 
languages. Depending on the facts, sometimes it may be necessary and 
reasonable to provide on-site interpreters to provide accurate and 
meaningful communication with an LEP person.
    Contracting for Interpreters. Contract interpreters may be a cost-
effective option when there is no regular need for a particular 
language skill. In addition to commercial and other private providers, 
many community-based organizations and mutual assistance associations 
provide interpretation services for particular languages. Contracting 
with and providing training regarding the recipient's programs and 
processes to these organizations can be a cost-effective option for 
providing language services to LEP persons from those language groups.
    Example: Block grants of $300,000 each have been awarded by DOE to 
three community organizations to help minimize future economic impacts 
of workforce restructuring on communities near DOE facilities. The 
grant money provided to these organizations will be used, in part, to 
provide technical assistance and funding opportunities to small 
businesses, and job training assistance to affected employees. Given 
their limited resources, these community organizations may elect to 
contract for language services, as appropriated and necessary, instead 
of hiring bilingual staff.
    Using Telephone Interpreter Lines. Telephone interpreter service 
lines often offer speedy interpreting assistance in many different 
languages. They may be particularly appropriate where the mode of 
communicating with an English proficient person would also be over the 
phone. Telephone interpreter services may be used to supplement any 
system of interpreter services. This service is also helpful in a case 
of a language rarely encountered, and not easily accommodated in 
person. Although

[[Page 50372]]

telephonic interpretation services are useful in many situations, it is 
important to ensure that, when using such services, the interpreters 
used are competent to interpret any technical or legal terms specific 
to a particular program that may be important parts of the 
conversation. Nuances in language and non-verbal communication can 
often assist an interpreter and cannot be recognized over the phone. 
Video teleconferencing may sometimes help to resolve this issue where 
necessary. In addition, where documents are being discussed, it is 
important to give telephonic interpreters adequate opportunity to 
review the document prior to the discussion and any logistical problems 
should be addressed.
    Using Community Volunteers. In addition to consideration of 
bilingual staff, staff interpreters, or contract interpreters (either 
in-person or by telephone) as options to ensure meaningful access by 
LEP persons, use of recipient-coordinated community volunteers, working 
with, for instance, community-based organizations may provide a cost-
effective supplemental language assistance strategy under appropriate 
circumstances. They may be particularly useful in providing language 
access for a recipient's less critical programs and activities. To the 
extent the recipient relies on community volunteers, it is often best 
to use volunteers who are trained in the information or services of the 
program and can communicate directly with LEP persons in their 
language. Just as with all interpreters, community volunteers used to 
interpret between English speakers and LEP persons, or to orally 
translate documents, should be competent in the skill of interpreting 
and knowledgeable about applicable confidentiality and impartiality 
rules. Recipients should consider formal arrangements with community-
based organizations that provide volunteers to address these concerns 
and to help ensure that services are available more regularly.
    Use of Family Members, Friends, or Other Informal ``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 in place of or as a supplement to the 
free language services offered by the recipient. LEP persons may feel 
more comfortable with a trusted family member, friend, or other person 
of their choosing. 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, 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, business, or enforcement interest in 
accurate interpretation. In many circumstances, family members 
(especially children), friends, or other informal interpreters are not 
competent to provide quality and accurate interpretations. Issues of 
confidentiality, privacy, or conflict of interest may also arise. LEP 
individuals may feel uncomfortable revealing or describing sensitive, 
confidential, or potentially embarrassing medical, family, or financial 
information to a family member, friend, or member of the local 
community. In addition, such informal interpreters may have a personal 
connection to the LEP person or an undisclosed conflict of interest. 
For these reasons, when oral language services are necessary, 
recipients should generally offer competent interpreter services free 
of cost to the LEP person.
    While issues of competency, confidentiality, and conflict of 
interest in the use of family members (especially children), friends, 
or other applicants or other informal interpreters often make their use 
inappropriate, the use of these individuals as interpreters may be an 
appropriate option where proper application of the four factors would 
lead to a conclusion that recipient-provided services are not 
necessary. An example of this is a voluntary educational tour offered 
to the public. There, the importance and nature of the activity may be 
relatively low and unlikely to implicate issues of confidentiality, 
conflict of interest, or the need for accuracy. In addition, the 
resources needed and costs of providing language services may be high. 
In such a setting, an LEP person's use of family, friends, or others 
may be appropriate.
    If the LEP person voluntarily chooses to provide his or her own 
interpreter, a recipient should consider whether a record of that 
choice and of the recipient's offer of assistance is appropriate. Where 
precise, complete, and accurate interpretations or translations of 
information and/or testimony are critical for applications, public or 
administrative hearings, research, etc., or where the competency of the 
LEP person's interpreter is not established, a recipient might decide 
to provide its own, independent interpreter, even if an LEP person 
wants to use his or her own interpreter as well. Extra caution should 
be exercised when the LEP person chooses to use a minor as the 
interpreter. While the LEP person's decision should be respected, there 
may be additional issues of competency, confidentiality, or conflict of 
interest when the choice involves using children as interpreters. The 
recipient should take care to ensure that the LEP person's choice is 
voluntary, that the LEP person is aware of the possible problems if the 
preferred interpreter is a minor child, and that the LEP person knows 
that a competent interpreter could be provided by the recipient at no 
cost.

B. Written Language Services (Translation)

    Translation is the replacement of a written text from one language 
(source language) into an equivalent written text in another language 
(target language).
    What Documents Should be Translated? After applying the four-factor 
analysis, a recipient may determine that an effective LEP plan for its 
particular program or activity includes the translation of vital 
written materials into the language of each frequently-encountered LEP 
group eligible to be served and/or likely to be affected by the 
recipient's program.
    Such vital written materials could include, for example: 
Applications, such as applications for weatherization programs; public 
notices; consent forms; letters containing important information 
regarding participation in a program; eligibility rules; notices 
pertaining to the availability, reduction, denial or termination of 
services or benefits or the right to appeal; notices advising the 
public of the availability of free language assistance; and critical 
outreach and community education materials.
    Whether or not a document (or the information it solicits) is 
``vital'' may depend upon the importance of the program, information, 
encounter, or service involved, and the consequence to the LEP person 
if the information in question is not provided accurately or in a 
timely manner. For instance, applications for energy assistance 
generally should be considered vital, whereas signs regarding tour 
times for public tours of a facility generally should not. Where 
appropriate, recipients are encouraged to create a plan for 
consistently determining, over time and across its various activities,

[[Page 50373]]

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.'' 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.

    Example: Non-English speaking immigrants, particularly recent 
arrivals to the United States, often are poorer than the majority 
population and may be eligible for social services programs, such as 
weatherization programs. Notices of program availability and 
eligibility and application forms likely would constitute ``vital'' 
documents that should be translated into frequently encountered 
languages.

    However, translations are generally not required for more technical 
documents not written for consumption by the general public, such as 
some scientific and research papers, budget justifications, or annual 
performance plans, or for vacancy announcements (where proficiency in 
English is an essential element of employment).
    Each program or activity should make a careful assessment of the 
written materials that it produces, and make a determination of what 
documents are deemed critical or vital to accessing or understanding 
its own operations, information, benefits, or services, and therefore 
potentially subject to translation.
    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 an executive summary or the title and a phone number for 
obtaining more information on the contents of the document in 
frequently-encountered languages other than English is critical, but 
the document is sent out to the general public and cannot reasonably be 
translated into many languages. Thus, vital information may include, 
for instance, the provision of information in appropriate languages 
other than English regarding where an LEP person might obtain an 
interpretation or translation of the document.
    Into What Languages Should Documents be Translated? The languages 
spoken by the LEP individuals with whom the recipient has contact 
determine the languages into which vital documents should be 
translated. A distinction should be made, however, between languages 
that are frequently encountered by a recipient and less commonly-
encountered languages. Some 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 result in 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 some 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 factors 
discussed above. Because translation is a one-time expense, 
consideration should be given to whether the upfront cost of 
translating a document (as opposed to oral interpretation) should be 
amortized over the likely lifespan of the document when applying this 
four-factor analysis.
    Safe Harbor. Many recipients would like to ensure with greater 
certainty that they comply with their obligations to provide written 
translations in languages other than English. Paragraphs (a) and (b) 
outline the circumstances that can provide a ``safe harbor'' for 
recipients regarding the requirements for translation of written 
materials. A ``safe harbor'' means that if a recipient provides written 
translations under these circumstances, such action will be considered 
strong evidence of compliance with the recipient's written-translation 
obligations.
    The failure to provide written translations under the circumstances 
outlined in paragraphs (a) and (b) it does not mean there is non-
compliance with applicable law or this Policy Guidance. 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.
    Example: Even if the safe harbors are not used, if written 
translation of a certain document(s) would be so burdensome as to 
defeat the legitimate objectives of its program, the translation of the 
written materials is not necessary. Other ways of providing meaningful 
access, such as effective oral interpretation of certain vital 
documents, might be acceptable under such circumstances.
    Safe Harbor. The following actions will be considered strong 
evidence of compliance with the recipient's written-translation 
obligations:
    (a) The DOE recipient provides written translations of vital 
documents for each eligible LEP language group that constitutes five 
percent or 1,000, whichever is less, of the population of persons 
eligible to be served or likely to be affected or encountered. 
Translation of other documents, if needed, can be provided orally; or
    (b) If there are fewer than 50 persons in a language group that 
reaches the five percent trigger in (a), the recipient does not 
translate vital written materials but provides written notice in the 
primary language of the LEP language group of the right to receive 
competent oral interpretation of those written materials, free of cost.
    These safe harbor provisions apply to the translation of written 
documents only. They do not affect the requirement to provide 
meaningful access to LEP individuals through competent oral 
interpreters where oral language services are needed and are 
reasonable.
    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 vital documents are being translated, competence can 
often be achieved by use of certified translators.

[[Page 50374]]

Certification or accreditation may not always be possible or 
necessary.\5\ 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.''
---------------------------------------------------------------------------

    \5\ For those languages in which no formal accreditation 
currently exists, a particular level of membership in a professional 
translation association can provide some indicator of 
professionalism.
---------------------------------------------------------------------------

    Translators should understand the expected reading level of the 
audience and, where appropriate, have fundamental knowledge about the 
target language group's vocabulary and phraseology. Sometimes direct 
translation of materials results in a translation that is written at a 
much more difficult level than the English language version or has no 
relevant equivalent meaning.\6\ Community organizations may be able to 
help consider whether a document is written at a good level for the 
audience. Likewise, consistency in the words and phrases used to 
translate terms of art, legal, or other technical concepts helps avoid 
confusion by LEP individuals and may reduce costs. Creating or using 
already-created glossaries of commonly-used terms may be useful for LEP 
persons and translators and cost effective for the recipient. Providing 
translators with examples of previous accurate translations of similar 
material by the recipient, other recipients, or Federal agencies may be 
helpful.
---------------------------------------------------------------------------

    \6\ For instance, there may be languages which do not have an 
appropriate direct translation of some terms used by the recipient 
and the translator should be able to provide an appropriate 
translation. The translator should likely also make the recipient 
aware of this. Recipients can then work with translators to develop 
a consistent and appropriate set of descriptions of these terms in 
that language that can be used again, when appropriate. Recipients 
will find it more effective and less costly if they try to maintain 
consistency in the words and phrases used to translate terms of art 
and legal or other technical concepts. Creating or using already-
created glossaries of commonly used terms may be useful for LEP 
persons and translators and cost effective for the recipient. 
Providing translators with examples of previous translations of 
similar material by the recipient, other recipients, or federal 
agencies may be helpful.
---------------------------------------------------------------------------

    While quality and accuracy of translation services is critical, the 
quality and accuracy of translation services is nonetheless part of the 
appropriate mix of LEP services required. For instance, documents that 
are simple and have no legal, health, economic, or other important 
consequence for LEP persons who rely on them may use translators that 
are less skilled than important documents with legal or other 
information upon which reliance has important consequences (including, 
e.g., information or documents of recipients regarding certain health, 
safety, evacuation, benefits, social service, or other important 
benefits, services, rights, or impact). 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.

VIII. Elements of Effective Plan on Language Assistance for LEP Persons

    After completing the four-factor analysis and deciding what 
language assistance services are appropriate, a recipient should 
develop an implementation plan to address the identified needs of the 
LEP populations they serve. Recipients have considerable flexibility in 
developing this plan. The development and maintenance of a 
periodically-updated written plan on language assistance for LEP 
persons (``LEP plan'') for use by recipient employees serving the 
public will likely be the most appropriate and cost-effective means of 
documenting compliance and providing a framework for the provision of 
timely and reasonable language assistance. Moreover, such written plans 
would likely provide additional benefits to a recipient's managers in 
the areas of training, administration, planning, and budgeting. These 
benefits should lead most recipients to document in a written LEP plan 
their language assistance services, and how staff and LEP persons can 
access those services. Despite these benefits, certain DOE recipients, 
such as recipients serving very few LEP persons and recipients with 
very limited resources, may choose not to develop a written LEP plan. 
However, the absence of a written LEP plan does not obviate the 
underlying obligation to ensure meaningful access by LEP persons to a 
recipient's program or activities. Accordingly, in the event that a 
recipient elects not to develop a written plan, it should consider 
alternative ways to articulate in some other reasonable manner a plan 
for providing meaningful access. Entities having significant contact 
with LEP persons, such as schools, religious organizations, community 
groups, and groups working with new immigrants can be very helpful in 
providing important input into this planning process from the 
beginning.
    The following five steps may be helpful in designing an LEP plan 
and are typically part of effective implementation plans.

(1) Identifying LEP Individuals Who Need Language Assistance

    The first two factors in the four-factor analysis require an 
assessment of the number or proportion of LEP individuals eligible to 
be served or encountered and the frequency of encounters. This requires 
recipients to identify LEP persons with whom it has contact.
    One way to determine the language of communication is to use 
language identification cards (or ``I speak cards''), which invite LEP 
persons to identify their language needs to staff. Such cards, for 
instance, might say ``I speak Spanish'' in both Spanish and English, 
``I speak Vietnamese'' in both English and Vietnamese, etc. To reduce 
costs of compliance, the Federal government has made a set of these 
cards available on the Internet. The Census Bureau ``I speak cards'' 
can be found and downloaded at http://www.usdoj.gov/crt/cor/13166.htm. 
When records are normally kept of past interactions with members of the 
public, the language of the LEP person can be included as part of the 
record. In addition to helping employees identify the language of LEP 
persons they encounter, this process will help in future applications 
of the first two factors of the four-factor analysis. In addition, 
posting notices in commonly encountered languages notifying LEP persons 
of language assistance will encourage them to self-identify.

(2) Language Assistance Measures

    An effective LEP plan would likely include information about the 
ways in which language assistance will be provided. For instance, 
recipients may want to include information on at least the following:

--Types of language services available.
--How staff can obtain those services.
--How to respond to LEP callers.
--How to respond to written communications from LEP persons.
--How to respond to LEP individuals who have in-person contact with 
recipient staff.
--How to ensure competency of interpreters and translation services.

(3) Training Staff

    Staff should know their obligations to provide meaningful access to 
information and services for LEP persons. An effective LEP plan would 
likely include training to ensure that:

--Staff know about LEP policies and procedures.

[[Page 50375]]

--Staff having contact with the public are trained to work effectively 
with in-person and telephone interpreters.

    Recipients may want to include this training as part of the 
orientation for new employees. It is important to ensure that all 
employees in public contact positions 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 need to be made aware of an LEP plan. 
However, management staff, even if they do not interact regularly with 
LEP persons, may need to be fully aware of and understand the plan so 
they can reinforce its importance and ensure its implementation by 
staff.

(4) Providing Notice to LEP Persons

    Once an agency has decided, based on the four factors, that it will 
provide language services, it is important for the recipient to let LEP 
persons know that those services are available and that they are free 
of charge. Recipients should provide this notice in a language LEP 
persons will understand. Examples of notification that recipients 
should consider include:

--Posting signs in intake areas and other entry points. When language 
assistance is needed to ensure meaningful access to information and 
services, it is important to provide notice in appropriate languages in 
intake areas or initial points of contact so that LEP persons can learn 
how to access those language services. This is particularly true in 
areas with high volumes of LEP persons seeking access to certain 
health, safety, heat, electricity, energy or weatherization assistance 
services or operations run by DOE recipients. For instance, signs in 
intake offices could state that free language assistance is available. 
The signs should be translated into the most common languages 
encountered. They should explain how to get the language help.\7\

    \7\ The Social Security Administration has made such signs 
available at http://www.ssa.gov/multilanguage/langlist1.htm. These 
signs could, for example, be modified for recipient use.
---------------------------------------------------------------------------

--Stating in outreach documents that language services are available 
from the agency. For instance, announcements could be in brochures, 
booklets, and in outreach and recruitment information. These statements 
should be translated into the most common languages and could be 
``tagged'' onto the front of common documents.
--Working with community-based organizations and other stakeholders to 
inform LEP individuals of the recipients' services, including the 
availability of language assistance services.
--Using a telephone voice mail menu. The menu could be in the most 
common languages encountered. It should provide information about 
available language assistance services and how to get them.
--Including notices in local newspapers in languages other than 
English.
--Providing notices on non-English-language radio and television 
stations about the available language assistance services and how to 
get them.
--Presentations and/or notices at schools and religious organizations.

(5) Monitoring and Updating the LEP Plan

    Recipients should, where appropriate, have a process for 
determining, on an ongoing basis, whether new documents, programs, 
services, and activities need to be made accessible for LEP 
individuals, and they may want to provide notice of any changes in 
services to the LEP public and to employees. In addition, recipients 
should consider whether changes in demographics, types of services, or 
other needs require annual reevaluation of their LEP plan. Less 
frequent reevaluation may be more appropriate where demographics, 
services, and needs are more static. One good way to evaluate the LEP 
plan is to seek feedback from the community.
    In their reviews, recipients may want to consider assessing changes 
in:

--Current LEP populations in service area or population affected or 
encountered.
--Frequency of encounters with LEP language groups.
--Nature and importance of activities to LEP persons.
--Availability of resources, including technological advances and 
sources of additional resources, and the costs imposed.
--Whether existing assistance is meeting the needs of LEP persons.
--Whether staff knows and understands the LEP plan and how to implement 
it.
--Whether identified sources for assistance are still available and 
viable.

    In addition to these five elements, effective plans set clear 
goals, management accountability, and opportunities for community input 
and planning throughout the process.

IX. Voluntary Compliance Effort

    A primary goal of the Department is to seek voluntary compliance. 
The Department will work with recipients to bring about such 
compliance. Department regulation, 10 CFR 1040.102(a), stresses the 
importance of cooperation and assistance: ``Each responsible 
Departmental official shall, to the fullest extent practicable, seek 
the cooperation of recipients in obtaining compliance with this part 
and shall provide assistance and guidance to recipients to help them 
comply voluntarily with this part.'' The Department's Office of Civil 
Rights and Diversity also is available to provide technical assistance 
and guidance to recipients to help them comply with the law.
    Complaints by LEP persons will be investigated by the Office of 
Civil Rights and Diversity in the manner prescribed by Section 
1040.104. If the investigation results in a finding of compliance, the 
recipient will be informed in writing by the Office of Civil Rights and 
Diversity. If the investigation results in a finding of non-compliance, 
the recipient will be informed of the finding in writing, the areas of 
non-compliance that form the basis for the finding, and of any 
corrective measures that need to be taken by the recipient. If the 
recipient does not take the corrective measures necessary to achieve 
voluntary compliance, the Department is required to pursue compliance 
through administrative processes, litigation, or other enforcement 
proceedings.
    The enforcement mechanism associated with 10 CFR Part 1040 is fully 
set forth in Subpart H of Part 1040 which provides, in pertinent part, 
that ``if there appears to be a failure or threatened failure to comply 
with any of the provisions of this part, and if the noncompliance or 
threatened noncompliance cannot be corrected by voluntary means, 
compliance with this part may be effected by suspension, termination 
of, or refusal to grant or to continue Federal financial assistance.'' 
Other means may include, but are not limited to, a referral to the 
Department of Justice with a recommendation that appropriate 
proceedings be brought to enforce any rights of the United States under 
any applicable law. See 10 CFR 1040.111 et seq.
    EEO/Diversity Managers for field operations and laboratories have 
primary enforcement responsibility for ensuring compliance, and 
conducting reviews and investigations of recipients within their 
jurisdictions.
    While all recipients must work toward building systems that will

[[Page 50376]]

ensure access for LEP individuals, DOE acknowledges that the 
implementation of a comprehensive system to serve LEP individuals is a 
process and that a system will evolve over time as it is implemented 
and periodically reevaluated. As recipients take reasonable steps to 
provide meaningful access to federally assisted programs and activities 
for LEP persons, DOE will look favorably on intermediate steps 
recipients take that are consistent with this Guidance, and that, as 
part of a broader implementation plan or schedule, move their service 
delivery system toward providing full access to LEP persons. This does 
not excuse noncompliance but instead recognizes that full compliance in 
all areas of a recipient's activities and for all potential language 
minority groups may reasonably require a series of implementing actions 
over a period of time. In developing any phased implementation 
schedule, DOE recipients should ensure that the provision of 
appropriate assistance for significant LEP populations or with respect 
to activities having a significant impact on the health, safety, legal 
rights, or livelihood of beneficiaries is addressed first. Recipients 
are encouraged to document their efforts to provide LEP persons with 
meaningful access to federally assisted programs and activities.

[FR Doc. 04-18636 Filed 8-13-04; 8:45 am]
BILLING CODE 6450-01-P