[Federal Register: August 16, 2004 (Volume 69, Number 157)]
[Notices]
[Page 50366-50376]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au04-59]
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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 sharon.wyatt@hq.doe.gov.
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\
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\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.
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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.''
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\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.
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\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.
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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.
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--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