[Federal Register Volume 66, Number 231 (Friday, November 30, 2001)]
[Notices]
[Pages 59824-59825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29903]



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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: [email protected].

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