MEMORANDUM
TO:
HEADS OF FEDERAL AGENCIES, GENERAL COUNSELS,
AND CIVIL RIGHTS DIRECTORS
FROM: Ralph F. Boyd,
Jr.
Assistant Attorney General
SUBJECT: Executive Order 13166 (Improving Access to
Services
for Persons with Limited English Proficiency)
As you know, the Administration
has affirmed its commitment
to ensure that reasonable steps are taken to make federally
funded and federally conducted activities meaningfully accessible
to individuals who are limited English proficient (LEP). To that
end, on June 18, 2002, the U.S. Department of Justice (DOJ)
published final guidance to DOJ recipients on the requirement
under Title VI of the Civil Rights Act of 1964, and the Title VI
regulations, to ensure such access. 67 Fed. Reg. 41455. The
guidance is attached and is also available on www.lep.gov
and on
www.usdoj.gov/crt/cor/13166 (the
LEP portion of the website of
the Civil Rights Division's Coordination and Review Section)
.
I am writing to ask
for your continued assistance in
implementing Executive Order 13166 to ensure meaningful access
for LEP individuals to important federal and federally funded
rights, information, benefits, and services. The processes I
am setting forth in this memorandum have also been shared, at
a staff level, with members of the Interagency Working Group on
LEP and Civil Rights Division contacts in many of your agencies.
On October 26, 2001, I issued a
memorandum to clarify
policy guidance issued by the Department of Justice entitled
"Enforcement of Title VI of the Civil Rights Act of 1964 -
National Origin Discrimination Against Persons With Limited
English Proficiency." 65 Fed. Reg. 50123 (August 16, 2000)
(DOJ LEP Guidance). On January 18, 2002, DOJ's initial guidance
for recipients was republished for additional public comment. 67
Fed. Reg. 2671. Based on public comments filed in response to
the January 18, 2002 republication, DOJ published revised draft
guidance for public comment on April 18, 2002. 67 Fed. Reg.
19237. After taking into account additional comments, DOJ issued
this final guidance to recipients.
It is now imperative that agencies take the following steps:
1. Federal agencies that provide
federal financial
assistance must, pursuant to Executive Order 13166, publish
guidance for their recipients on meaningful access for LEP
individuals. Section A of this Memorandum discusses the
procedures for publishing this guidance.
2. All federal agencies, including
those that do not
provide federal financial assistance, must create or modify
plans, consistent with Executive Order 13166, to ensure
meaningful access for LEP individuals to the important benefits,
services, information, and rights provided by the agencies
themselves. Further information on this process is discussed in
Section B of this Memorandum.
3. All federal agencies should
consider participating, if
they are not already doing so, in the Interagency Working Group
on LEP and contributing appropriate links to the Working Group's
website, www.lep.gov. Section C discusses
this initiative and
requests further agency input and participation.
A. Agency-Specific Recipient Guidance
on LEP (Applies to 30
federal funding agencies)
As noted by Deputy Assistant Attorney
General, Alex Acosta,
in the last Interagency Working Group meeting on LEP, it is
critical that agency LEP recipient guidance documents be
consistent with one another. In its March 14, 2002 Report to
Congress on the Assessment of the Total Benefits and Costs of
Implementing Executive Order Number 13166 (available on both
websites noted above), the Office of Management and Budget (OMB)
has made it clear that the benefits of the Executive Order can be
substantial, both to the recipients and to the ultimate
beneficiaries. However, OMB also stressed that in order to
reduce costs of compliance, consistency in agency guidance
documents is critical, particularly since many recipients receive
assistance from more than one federal agency.
Therefore, as you move toward full implementation of
Executive Order 13166, I am requesting that you use the DOJ LEP
Guidance as your model for publication or republication of your
recipient LEP guidance. (1) All funding
agencies should modify
Sections I-VIII of the DOJ LEP Guidance to the extent necessary
to make the examples relevant to their recipients. The examples
and additional information that agencies may have created for
previous guidance document versions should be helpful in
modifying the examples in Sections I-VIII. These examples may
also be included in an appendix that agencies may want to attach,
much like DOJ attached Appendix A with examples in the DOJ LEP
Guidance.
The goal is for funding agencies
to send us drafts of
their proposed guidance (or proposed revised guidance) as soon
as possible, but no later than July 29, 2002. Regardless of
whether your agency has previously published guidance or not,
all agencies should publish proposed guidance for comment that
uses the DOJ LEP Guidance as a model. As discussed below,
agencies have several options for doing so.
Agencies may simply
want to modify the examples (such as
types of recipients or programs or activities covered) in
Sections I-VIII and not include an appendix. Other agencies
(especially larger ones) may want to modify the examples, but
also include an Appendix A (as DOJ did). Those examples would
obviously be different from those in DOJ's appendix, but must
be consistent with the standards set forth in Sections I-VIII.
Smaller agencies may want simply to incorporate the DOJ LEP
Guidance by reference, working with Coordination and Review
Section staff to ensure that a clear, but less lengthy guidance
document is issued.
Given the very real need
for legal consistency, and for
recipients to be assured that the standards that one agency
applies to them are not different than those that another agency
may apply to them, we expect modifications to focus on the
examples. Any deviations from the standards presented in the
guidance will require justification. Thus, if an agency feels
that the standards set forth in the DOJ LEP Guidance need to be
modified in any way, that agency will also need to provide a
written justification for those modifications, and an explanation
of why those modifications are consistent with the law and with
the need to ensure that recipients are not subject to differing
standards. All modifications to the final DOJ LEP Guidance
that agencies propose to make should be highlighted, in
redline/strikeout form if at all possible.
Pursuant to Executive
Order 13166, all recipient LEP
guidance documents require DOJ approval prior to publication.
(Recipient LEP guidance documents that agencies have already
published are effective until new guidance documents become
final.) Once the guidance documents are published in final,
agencies should conduct outreach to recipients to ensure that
they are made aware of the guidance. The Civil Rights Division's
Coordination and Review Section (202/307-2222) stands ready to
assist agencies in this important matter.
B. Federally
Conducted Plans (Applies to all 95 federal
agencies)
Executive Order 13166
also calls for all agencies to ensure
that their own federally conducted programs and activities are
meaningfully accessible to LEP individuals. To that end, each
agency must have an LEP implementation plan in place. Those
plans should be updated, as appropriate. The general standards
set forth in the DOJ LEP guidance for DOJ recipients would also
apply to each agency's own activities. For instance, the
four-factor analysis set forth in the DOJ LEP Guidance should
be applied to each agency's activities. Primary focus of
planning and implementation in this area should be with
components or activities that have significant amounts of contact
with the general public, or that have contacts which impact
significantly on an LEP person's rights or access to vital
information, benefits, or services. As these plans are
finalized, they must be filed with the Coordination and Review
Section. Please also consider placing them on your websites.
The Coordination and Review Section website at
www.usdoj.gov/crt/cor/13166 contains
links to agency federally
conducted LEP implementation plans already published on agency
websites.
C. Interagency Working
Group on LEP and www.LEP.gov
(Applies to all 95 federal agencies)
In December of last year,
I instituted the creation of an
Interagency Working Group on LEP. That Working Group initially
met in January and set a number of priorities for interagency
collaboration. Three subcommittees of that Working Group meet
bimonthly and are focused on three main areas: 1) creation and
expansion of a one-stop website on LEP issues (the Clearinghouse
Subcommittee); 2) creation of tools to assist recipients and
beneficiaries in understanding and applying recipient guidance
documents (the Outreach, Training, and Uniform Standards
Subcommittee); 3) collaboration amongst agencies in making
federally conducted activities meaningfully accessible to LEP
individuals (the Consistent, Cost-Effective, and Competent
Language Services Subcommittee).
I ask that you
continue to support the efforts of this
Working Group, particularly the efforts to create technical
assistance tools for recipients and beneficiaries and to
ensure high quality and cost-effective language assistance.
Currently, approximately twenty agencies actively participate
in the Working Group, which meets bimonthly. I urge your
active participation, if you are not already an active member.
The next meeting of the Interagency Working Group on LEP is
being hosted by the Department of Education on July 9, 2002.
Please contact the Coordination and Review Section's Chief,
Merrily Friedlander, at (202) 307-2222 or at
merrily.a.friedlander@usdoj.gov
if you are interested in becoming
an active member.
In an effort to reduce costs
of compliance for recipients
and to ensure that agency efforts are having maximum impact
given resources, I ask for your assistance in further developing
the LEP.gov website in the following ways.
- When agencies (either headquarters
or regional offices)
create useful documents
regarding their programs or
activities that are translated
into languages other than
English, they should strongly
consider posting those
documents on their websites
and informing the Interagency
Working Group so that those
documents can be linked to
and from LEP.gov.
Many agencies may already have created
such translations. For instance,
the Social Security
Administration has posted
a number of documents in several
languages on its site, and
LEP.gov links to those documents.
Section 508 of the Rehabilitation
Act of 1973 does not
prevent agencies from posting
documents in languages other
than English in an appropriate
PDF format, but care must be
taken to ensure that new
PDF files are created in a manner
that makes them accessible.
Links should be provided to
Clearinghouse Subcommittee
co-chairs John Hanberry
(John.Hanberry@do.treas.gov)
and Michael Katz
(Mkatz@coms.hhs.gov)
as well as to the LEP.gov webmaster,
Nancy Sweesy (Nancy.Sweesy@usdoj.gov).
- We urge you to provide links to information
that you may
have on your websites regarding
promising practices,
compliance agreements, or
other tools that may assist
recipients in carrying out
their responsibilities. If such
documents exist but are
not on your websites, I encourage
you to place them there.
For example, if your agency has
demographic data showing
numbers of LEP individuals in
geographic areas, which
is not presently available on your
website, we strongly urge
you to notify the above-named
individuals of this information
and to consider posting it
on your website.
- We also urge you to provide links to
your federally
conducted LEP implementation
plans and to any other
information that your agency
believes would be useful
to include in the LEP.gov
site.
In addition, I am asking
the Interagency Working Group
to provide me with an Annual Report of its activities, including
agency participation, on the anniversary of its inception,
December 19, 2002. This Report will include a summary of
activities, statement of achievements, and plans for additional
action, and will be available on LEP.gov as well as on the
Coordination and Review Section's website.
I look forward to our
continued joint efforts in this
important endeavor of ensuring access for LEP individuals in
all federal and federally assisted programs.
Enclosure
1. Word processing versions of this document have been sent electronically to staff-level agency contacts.