[Federal Register: November 30, 2001 (Volume 66, Number 231)]
[Notices]
[Page 59824-59825]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30no01-134]
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OFFICE OF MANAGEMENT AND BUDGET
Assessment of Cost and Benefits Associated with the
Implementation of Executive Order 13166
AGENCY: Office of Management and Budget, Executive Office of the
President.
ACTION: Request for information.
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SUMMARY: This notice requests information that will inform the
development of an assessment of the costs and benefits associated with
the implementation of Executive Order 13166. Executive Order 13166,
issued in August of 2000, is designed to ensure that persons with
limited English proficiency (LEP) have adequate access to federally
funded services, consistent with Title VI of the Civil Rights Act,
which prohibits discrimination based on national origin. The Office of
Management and Budget (OMB) has been tasked by Congressional
appropriators with assessing the total costs and benefits of
implementation. The Treasury, and General Government Appropriations Act
of 2002 (Public Law 107-67), states that OMB shall submit, ``* * * a
report to the Committees on Appropriations that provides an assessment
of the total costs and benefits of implementing Executive Order 13166:
Provided further, That such an assessment shall be submitted no later
than 120 days after enactment of this Act.'' OMB is seeking information
that will enable it to comply with this mandate by developing
meaningful estimates of costs and benefits of implementation.
DATES: Comments must be received by December 31, 2001.
ADDRESSES: Responses to this request for information should be
addressed to Brenda Aguilar of the Office of Information and Regulatory
Affairs, Office of Management and Budget, Washington, DC 20503
FOR FURTHER INFORMATION CONTACT: Brenda Aguilar at phone (202) 395-
6929; fax: (202) 395-6974; e-mail: baguilar@omb.eop.gov.
SUPPLEMENTARY INFORMATION: In Public Law 107-67, Congress directed the
OMB to provide, within 120 days of enactment, ``* * * a report to the
Committees on Appropriations that provides an assessment of the total
costs and benefits of implementing Executive Order 13166* * *.'' One
component of OMB's overall data collection strategy is the solicitation
of relevant information from the public that will assist us in
quantifying these costs and benefits. For the purposes of this
solicitation, OMB is seeking both qualitative and quantitative
information on the costs and benefits of Executive Order 13166. We
recognize that monetizing or even quantifying some of the effects of
the Executive Order may be quite difficult. Therefore, while we
encourage the public to provide information in quantifiable units
(e.g., dollars or time) where possible, we are also interested in
descriptions of Executive Order 13166's unquantifiable effects.
Background
Executive Order 13166 was created to, ``* * * improve access to
federally conducted and federally assisted programs and activities for
persons who, as a result of national origin, are limited in their
English proficiency (LEP)* * *.'' To accomplish this goal, Executive
Order 13166 mandates that, ``* * * each Federal agency shall examine
the services it provides and develop and implement a system by which
LEP persons can meaningfully access those services consistent with, and
without unduly burdening, the fundamental mission of the agency.''
However, the scope of Executive Order 13166 is not limited to federally
operated programs. The Executive Order also requires, ``* * * each
Federal agency shall also work to ensure that recipients of Federal
financial assistance (recipients) provide meaningful access to their
LEP applicants and beneficiaries.'' This means that the Executive Order
is intended to apply not only to all federally conducted activities,
but also to all entities that receive federal funds, such as State and
local governments, and private or nonprofit grantees or contractors.
However, by recognizing that the imposition of inflexible and
burdensome requirements could, ``unduly'' burden the ``fundamental
mission of the agency,'' the Executive Order contemplates weighing of
implementation costs and benefits. Further, the DOJ implementing
guidance reinforces this by stating, ``What constitutes reasonable
steps to ensure meaningful access will be contingent upon a number of
factors,'' each of which is discussed in this paper.
Under Executive Order 13166, the Department of Justice (DOJ) has
been given the responsibility of assisting agencies with compliance and
coordinating the federal government's overall response. Pursuant to
this responsibility, DOJ issued implementing guidance in conjunction
with the issuance of the Executive Order in August of 2000, and
continues to advise federal agencies on how to develop the plans and
guidance documents mandated by Executive Order 13166. Agency plans and
guidance documents are reviewed and approved by DOJ based upon their
consistency with the Executive Order.
The DOJ guidance establishes a framework for agencies to evaluate
what constitutes, ``reasonable steps to ensure meaningful access,'' as
required by the Executive Order. To do so, the guidance document
delineates several factors that may be taken into account in agencies'
Executive Order 13166 implementation decisions:
1. Number or Proportion of LEP Individuals: The guidance
acknowledges that while even, ``programs that serve a few or even one
LEP person are still subject to the Title VI obligation to take
reasonable steps to provide meaningful opportunities for access' [t]he
steps that are reasonable for a recipient who serves one LEP person a
year may be different that those expected from a recipient that serves
several LEP persons each day.'' For example, in the case of an
organization or program that provides services to very few LEP
individuals, compliance may involve preparation to use a commercially
available interpreter service, rather than any intricate internal
planning and procedures.
2. Frequency of Contact with the Program: The guidance explains
that the, ``[f]requency of contacts between the program or activity and
LEP individuals is another factor to be weighed.'' Programs or
activities that must be accessed by LEP individuals on a daily basis,
as with elementary or secondary school attendance, ``'' a recipient has
greater duties than if such contact is unpredictable or infrequent.''
DOJ encourages recipients of federal funds to take local conditions
into account when determining the frequency of contact, and
acknowledges that individual recipients ``should have the flexibility
to tailor their services to those needs.''
3. Nature and Importance of the Program: Stating that, ``* * *
[t]he importance of the recipient's program to beneficiaries will
affect the determination of what reasonable steps are required,'' the
guidance explains that, ``[m]ore affirmative steps must be taken in
programs where the denial or delay of access may have life or death
implications than in programs that are not as crucial to one's day-to-
day existence.'' The example provided distinguishes between the
obligations of a federally assisted school or hospital and those of a
federally assisted zoo or theater. Further, DOJ guidance requires
federal agencies and their recipients to
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consider the long-term importance of the benefit, stating, ``A decision
by a federal, state, or local entity to make an activity compulsory,
such as elementary and secondary school attendance or medical
inoculations, serves as strong evidence of the program's importance.''
4. Resources Available: The DOJ guidance further acknowledges that,
``[t]he resources available to a recipient of federal assistance may
have an impact on the nature of the steps that recipients must take.''
DOJ recognizes that a small recipient with limited resources may be
unable to take the same steps as a larger recipient to provide LEP
assistance without ``unduly'' burdening its fundamental mission,
particularly when programs serve a limited number of eligible LEP
individuals, contact with the program is infrequent, the total cost of
providing translation services is relatively high, or the program is
not critical to an individual's daily existence.
Continuing, the DOJ guidance asks agencies to address ``the
appropriate mix of written and oral language assistance,'' and explains
that agencies must decide, ``* * * which documents must be translated,
when oral translation is necessary.* * *'' The DOJ guidance states,
``It is the responsibility of the federal assistance-granting agencies,
in conducting their Title VI compliance activities, to make more
specific judgments by applying their program expertise to concrete
cases.''
On October 26, 2001, DOJ issued a memorandum to all agencies that
states, ``* * * agencies that have issued Limited English Proficiency
(``LEP'') guidance for their recipients pursuant to Executive Order
13166 and Title VI of the Civil Rights Act should, after notifying the
Department of Justice (``DOJ''), publish a notice asking for public
comment on the guidance documents they have issued. Based on the public
comment it receives and this Memorandum, an agency may need to clarify
or modify its existing guidance. Agencies that have not yet published
guidance documents should submit agency-specific guidance to the
Department of Justice. Following approval by the Department of Justice
and before finalizing its guidance each agency should obtain public
comment on their proposed guidance documents.''
The purpose of issuing the Memorandum was to ensure that the public
had an adequate opportunity to review agency guidance prior to its
implementation, consistent with the notice and comment provisions of
the APA, and to state DOJ's position on a recent Supreme Court case
addressing the scope of the Title VI provisions regarding disparate
impact regulations. Although the Court held in Alexander v. Sandoval,
121 S.Ct. 1511 (2001) that there is no private right of action under
such regulations, the decision did not invalidate such regulations, and
therefore, DOJ explains that Executive Order 13166 ``remains in
force.''
Request for Comments
In order to assess the total costs and benefits of implementing
Executive Order 13166, it will be necessary to obtain a significant
amount of data. While estimating the costs and benefits associated with
any policy is difficult, this case will be particularly challenging
given the breadth and depth of activities covered by the Executive
Order. In a ``Q&A'' document released by DOJ, the scope of Executive
Order 13166 is defined as, ``* * * anything a federal agency does''* *
* to include, ``the provision of federal benefits or services, the
imposition of a burden on a member of the public, and any other
activities a federal agency conducts.'' This would include anything
from the receipt of benefits such as Social Security to law enforcement
activities or the imposition of taxes. Specifically, OMB is seeking
information that will provide assistance in:
Determining how best to quantify the numbers of LEP
individuals and which languages they speak.
Understanding the number of different languages spoken by
LEP individuals, and their geographic distribution.
Characterizing the interactions of LEP individuals with
both federal and federally funded entities. For example, how frequently
do LEP individuals interact with government at all levels? What types
of government services do LEP individuals typically access? Are there
types of services that LEP individuals access more or less frequently
than non-LEP individuals?
Determining the costs and benefits of improving English
language proficiency among LEP individuals.
Understanding and quantifying the level of services
provided by the government or government funded organizations to
address the special needs of LEP individuals prior to Executive Order
13166 and to what extent changes will be necessary to achieve full
compliance with Executive Order 13166 and related agency guidance.
Quantifying and describing the costs to the Federal
Government or recipients of federal funds of providing oral and written
translation services.
Quantifying and describing the benefits to LEP individuals
and society as a result of having oral and written translation services
available, in accordance with Executive Order 13166.
Identifying any existing studies of the costs and benefits
of improving the quality of communications and interactions between LEP
individuals and the federal government or federally funded services. We
are also interested in studies of similar language or translation
issues internationally, (e.g. Canada, European Union, United Nations
and OEDC).
Identifying ``real-world'' case studies that illustrate
the costs and benefits of providing translation services to LEP
individuals, as envisioned by Executive Order 13166, and related agency
guidance. We are seeking examples from multiple perspectives, including
LEP individuals, federal agencies/recipients of federal funds, and the
international context.
Identifying existing academic research and ``real-world''
case studies from the following sectors: health, social services/income
maintenance, education, transportation, law enforcement and trade, as
well as recommendations of additional sectors or perspectives from
which to address this issue.
Identifying any other information or resources that the
public believes will assist us in our efforts to assess the benefits
and costs of Executive Order 13166.
OMB appreciates any information that persons may have on these and
other subjects related to the implementation of Executive Order 13166.
After considering the information received, OMB will develop and issue
a report to Congress by March 12, 2001.
John D. Graham,
Administrator, Office of Information and Regulatory Affairs.
[FR Doc. 01-29903 Filed 11-29-01; 8:45 am]
BILLING CODE 3110-01-P