Carta a Cuerpo de ingenieros

Mr. Robert B. Barron
Project Manager
Regulatory Division
United States Army Corps of Engineers

Colonel Alfred Pantano
District Commander
U.S. Army Corps of Engineers, Jacksonville District
701 San Marco Boulevard
Jacksonville, FL 32207-0O19

I submit a formal request that USACE proceed to translate Permit Application SAJ-2010-02881 in Spanish in its entirety and proceed in accordance to existent legal requirements.

The summary that has been submitted, “Resumen del borrador de la Evaluación Ambiental y los resultados de la evaluación preparada por el Departamento del Ejército de los Estados Unidos para la Solicitud de Permiso SAJ-2010- 02881”, does not in any acceptable manner fulfill USACE’s responsibilities with the Puerto Rican people as a “limited English proficiency” (LEP) population as pertains to NEPA and the existent legal framework that relates to LEP citizens’ rights.

The current situation must be interpreted as a severe restraint upon the population of Puerto Rico and must be interpreted as meaning the current commentaries period is unfair and should be adjusted to correspond to the date that the complete document translated in Spanish is available.

We accompany this formal request with an analysis of the related legal considerations.

Copies of this request will be sent to all the relevant parties in this matter.

We also inform that if this request is not attended properly, we shall proceed to submit a complaint with the U.S. Justice Department that has jurisdiction over this matter.

Federal Coordination and Compliance Section - NWB
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

In reference to the summary in Spanish:

It is of judicial knowledge that a summary consists of a reduction to brief terms of essential subject matter contained in a document.

In the majority of professional guidelines that apply to the preparation of summaries, reference to the problem and the primary targets, the applied methods, results and conclusions of the original text, must reflect the superstructure of the contents that they synthesize. By virtue of the previous considerations, it is understood that the summary has to act only to provide elements that stimulate the consultation of the document.

A summary does not replace the document just as a review does not replace an artwork nor a critique substitutes the experience of a concert. In fact the summary without the document, does not grant the minimal credibility degree that the reader has really consulted the subject and it is inadmissible in intellectual rigor to adduce that the reading of a summary grants major and specific knowledge.

All the rational relation of content, besides the procedural requirements that exist in the considered contexts, is remarkably more rigorous when the subject is one of scientific or technical nature (as an evaluation of environmental impact in the case that concerns us) since science demands attention to precise details, processes, interactions, different properties and functions.

To prove something rationally, or its nonexistence or default, the task requires evidence that defines the subject properly and ignorance of information does not have a logical acceptance on the matter (the summary at issue only occupies 12% of the content of the rough proposal draft).

One of the causes of assumption of a fallacy of ignorance applies perfectly in this situation, to consider only unilateral and limited knowledge like a formula of central argumentation: everything considered for approval or disapproval relates to one of the parties in this case the USACE. This is not the requirement that NEPA demands, in fact this summary of 14 pages (without exhibits, of an original document of at least 180 pages with exhibits) transgresses the fundamental statutory content of the NEPA as well all the existent judicial doctrine on access of documents and processes such as the well-known Executive Order 13166 and the corresponding series of regulations that this norm establishes:

The public has an important role in the NEPA process, particularly during scoping, in providing input on what issues should be addressed in an EIS and in commenting on the findings in an agency's NEPA documents. The public can participate in the NEPA process by attending NEPA-related hearings or public meetings and by submitting comments directly to the lead agency. The lead agency must take into consideration all comments received from the public and other parties on NEPA documents during the comment period.
-National Environmental Policy Act (NEPA) [42 U.S.C. 4321 et seq.]

The problem is one of probity: we understand probity as a fundamental democratic characteristic that means thoroughness and integrity. It is not thorough to inform less (it is essentially to misinform not to reveal the necessary quantum of information) than absolutely, it is unfair and unjust to communicate important subject matter in an inadequate and incomplete form. Probity requires a high ethical quota of honesty that is informing without deviations nor unacceptable dissatisfactions the matters and the subjects in consideration or in review. This criteria surpasses strict legal requirements (it is not just a shopping list) since it is a matter essentially of fairness and equity. That is the problem we are confronted with and it is not a problem that can be corrected with patchwork: the summary simply does not fill the minimum requirements, simply does not convey the required information in a faithful, unequivocal and intelligible form, the aspects that must be by definition communicated. The summary fails as a metaphor therefore is useless, the problem is of insufficiency.

Let us review applicable norms:

Title VI of the Civil Rights Act of 1964 prohibits recipients of federal financial aid from discriminating against individuals “on the ground of race, color, or national origin.” Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et. seq. and its implementing regulations provide that no person shall be subjected to discrimination on the basis of race, color or national origin under any program or activity that receives Federal financial assistance.
- Section 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d) (July 2, 1964)

The implementing regulations for Title VI further clarify that a recipient “may not, directly or through contractual or other arrangements, on ground of race, color, or national origin,” exclude persons from participating in its programs, deny them any service or the benefits of its programs, or subject them to separate treatment.
- 34 C.F.R. §§ 100.3(a), (b)(1)(i) and (iii). (Use as reference of general policy guidelines)

Title VI obligates the translation of “vital” documents into the languages commonly spoken by users.
- 67 Fed. Reg. at 41463. (Use as regulatory reference.)

42 U.S.C 2000d
Sec. 2000d. Prohibition against exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on ground of race, color, or national origin.
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. (Pub. L. 88-352, Title VI, Sec. 601, July 2, 1964, 78 Stat. 252.)

18 CFR 705.1 - Purpose.
18 CFR 705.4 Discrimination prohibited.
(a) General. No person in the United States shall, on the grounds of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under, any program to which this part applies.
(b) Specific discriminatory actions prohibited. (1) A recipient under any program to which this part applies may not directly or through contractual or other arrangements, on the grounds of race, color, or national origin:
(i) Deny a person any service, financial aid, or other benefit provided under the program;
...
(4) The enumeration of specific forms of prohibited discrimination in this paragraph does not limit the generality of the prohibition in paragraph (a) of this section.
(5) This part does not prohibit the consideration of race, color, or national origin if the purpose and effect are to remove or overcome the consequences of practices or impediments which have restricted the availability of, or participation in, the program or activity receiving Federal financial assistance, on the grounds of race, color, or national origin. When previous discriminatory practice or usage tends, on the grounds of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which this part applies, the applicant or recipient has an obligation to take reasonable action to remove or overcome the consequences of the prior discriminatory practice or usage, and to accomplish the purposes of the Act.

General note: Title VI of the 1964 Civil Rights Act provides that no person in the United States shall, on the grounds of race, color or national origin, be excluded from participation in, be denied the benefits of or be otherwise subjected to discrimination under any program or activity receiving federal financial assistance (please refer to 23 CFR 200.9 and 49 CFR 21).

Civil Rights Restoration Act of 1987 broadened the scope of Title VI coverage by expanding the definition of terms "programs or activities" to include all programs or activities of Federal Aid recipients, subrecipients, and contractors, whether such programs and activities are federally assisted or not (Public Law 100259 [2.557] March 22, 1988).

Additional Authorities and Citations Include: Title VI of the Civil Rights Act of 1964, 42 United States Code 2000d to 2000-4; 42 United States Code 4601 to 4655; 23 United States Code 109(h); 23 United States Code 324; Department of Transportation Order 1050.2; Executive Order 12250; Executive Order 12898; 29 Code of Federal Regulations 50.3.

Please note:
Executive Order 12250--Leadership and Coordination of Nondiscrimination Laws
Source: The provisions of Executive Order 12250 of Nov. 2, 1980, appear at 45 FR 72995, 3 CFR, 1980 Comp., p. 298, unless otherwise noted.

By the authority vested in me as President by the Constitution and statutes of the United States of America, including section 602 of the Civil Rights Act of 1964 (42 U.S.C. 2000d-1), Section 902 of the Education Amendments of 1972 (20 U.S.C. 1682), and Section 301 of Title 3 of the United States Code, and in order to provide, under the leadership of the Attorney General, for the consistent and effective implementation of various laws prohibiting discriminatory practices in Federal programs and programs receiving Federal financial assistance, it is hereby ordered as follows:

1-1. Delegation of Function.
1-101. The function vested in the President by Section 602 of the Civil Rights Act of 1964 (42 U.S.C. 2000d-1), relating to the approval of rules, regulations, and orders of general applicability, is hereby delegated to the Attorney General.
1-102. The function vested in the President by Section 902 of the Education Amendments of 1972 (20 U.S.C. 1682), relating to the approval of rules, regulations, and orders of general applicability, is hereby delegated to the Attorney General.
1-2. Coordination of Nondiscrimination Provisions.
1-201. The Attorney General shall coordinate the implementation and enforcement by Executive agencies of various nondiscrimination provisions of the following laws:
(a) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).
(b) Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.).
(c) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794).
(d) Any other provision of Federal statutory law which provides, in whole or in part, that no person in the United States shall, on the ground of race, color, national origin, handicap, religion, or sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance. (et seq.)

Executive Order 12898 of February 11, 1994- Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1–1.Implementation.
1–101. Agency Responsibilities. To the greatest extent practicable and permitted by law, and consistent with the principles set forth in the report on the National Performance Review, each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States and its territories and possessions, the District of Columbia, the Commonwealth of Puerto Rico and the Commonwealth of the Mariana Islands.
1–102. Creation of an Interagency Working Group on Environmental Justice.
(a) Within 3 months of the date of this order, the Administrator of the Environmental Protection Agency (‘‘Administrator’’) or the Administrator’s designee shall convene an interagency Federal Working Group on Environmental Justice (‘‘Working Group’’). The Working Group shall comprise the heads of the following executive agencies and offices, or their designees:(a) Department of Defense; (b) Department of Health and Human Services; (c) Department of Housing and Urban Development;(d) Department of Labor;(e) Department of Agriculture; (f) Department of Transportation; (g) Department of Justice; (h) Department of the Interior;...
...
1–104. Sec. 2–2. Federal Agency Responsibilities for Federal Programs. Each Federal agency shall conduct its programs, policies, and activities that substantially affect human health or the environment, in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under, such programs, policies, and activities, because of their race, color, or national origin.
...
Sec. 6–6. General Provisions.
6–601. Responsibility for Agency Implementation. The head of each Federal agency shall be responsible for ensuring compliance with this order. Each Federal agency shall conduct internal reviews and take such other steps as may be necessary to monitor compliance with this order.
6–602. Executive Order No. 12250. This Executive order is intended to supplement but not supersede Executive Order No. 12250, which requires consistent and effective implementation of various laws prohibiting discriminatory practices in programs receiving Federal financial assistance. Nothing herein shall limit the effect or mandate of Executive Order No. 12250.
...
6–604. Scope. For purposes of this order, Federal agency means any agency on the Working Group...

Comment: The general doctrine is clear and supportive of policy against any and all discrimination as defined by Title VI (et seq). The policy includes Puerto Rico and the Department of Defense, both mentioned specifically. Based upon existant laws and corresponding regulations inadequate translation and/or insufficient abbreviation (such as use of a brief summary instead of the complete text of the document) of vital documents is prohibited. Summaries and syllabus will not and are not considered complete vital documents, their publication does not relieve, substitute nor excuse of the responsibility of producing the full text of vital documents.

We distinguish and emphasize: According to 2010 U.S. Census, in 95.9 percent of homes in Puerto Rico the main language is Spanish, which almost represents the totality of the population. Only in 4.1 percent of the homes of Puerto Rico, English is spoken mainly. 2010 Census data indicates that in Puerto Rico 80.8 percent of the population speaks English with difficulty while only 19.2 percent can speak English well.

Far more helpful is federal guidance that emerged following President Bill Clinton’s issuance of Executive Order 13166 in August 2000. [1] Entitled “Improving Access to Services for Persons with Limited English Proficiency,” the order applies to all federally conducted and federally assisted programs and activities, including, therefore, the Army. The order requires recipients of federal funds to take “reasonable steps to ensure meaningful access to their programs and activities by LEP persons.” [2]

The order also requires each federal agency to draft Title VI guidance “specifically tailored to its recipients” and consistent with LEP guidance issued by the Department of Justice (DOJ). [3] DOJ’s initial guidance document, “Enforcement of Title VI of the Civil Rights Act of 1964—National Origin Discrimination against Persons with Limited English Proficiency,” was issued concurrently with Executive Order 13166. [4]

This short document sets forth compliance standards to help recipients ensure that LEP persons are not the victims of discrimination and that they have the meaningful access required under Title VI. [5]/[6]

(Partial notes:)
[1] 65 Fed. Reg. 50,121–22 (Aug. 16, 2000).
[2] Id.
[3] Id.
[4] 65 Fed. Reg. 50,123–25 (Aug. 16, 2000).
[5] Id.
[6] 'LEP' refers to persons with limited English proficiency.

EXECUTIVE ORDER 13166. IMPROVING ACCESS TO SERVICES FOR PERSONS WITH LIMITED ENGLISH PROFICIENCY

"By the authority vested in me as President by the Constitution and the laws of the United States of America, and 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), it is hereby ordered as follows:

Section 1. Goals. The Federal Government provides and funds an array of services that
can be made accessible to otherwise eligible persons who are not proficient in the English language. The Federal Government is committed to improving the accessibility of these services to eligible LEP persons... To this end, each Federal agency shall examine the services it provides and develop and implement a system by which LEP persons can meaningfully access those services... To assist the agencies with this endeavor, the Department of Justice has today issued a general guidance document (LEP Guidance), which sets forth the compliance standards that recipients must follow to ensure that the programs and activities they normally provide in English are accessible to LEP persons and thus do not discriminate on the basis of national origin in violation of title VI of the Civil Rights Act of 1964, as amended, and its implementing regulations. As described in the LEP Guidance, recipients must take reasonable steps to ensure meaningful access to their programs and activities by LEP persons."(et seq.)

Executive Order 13166 is duly reaffirmed by means of:

"Executive Order 13166 was issued in August of 2000 and this memorandum reaffirms its mandate. The Executive Order has two primary parts. First, it directs each federal agency to develop and implement a system by which limited English proficient (LEP) persons can meaningfully access the agency's services..."

Federal Government Renews Commitment to Language Access Obligations Under Executive Order 13166:
Memo to Federal Agencies Reaffirming the Mandates of Executive Order 13166 from Attorney General Eric Holder.

About the Army and the LEP population:

We have managed to obtain official and public documents of the U.S. Army Research Institute for the Behavorial and Social Sciences that attend the language problems of soldiers who are not English proficient from the point of view of the obligations that the U.S.Army has to provide suitable and efficient communications mechanisms with these citizens. Several studies on the problem and corresponding surveys are included in which among others things I shall cite:

"Most of the soldiers in the Program were well-educated Puerto Ricans with weak oral English skills" - "English-as-a-Second-Language Programs in the Army." Identified as Report No. ARI-1354, dated november 1983.

We stipulate that it is not an acceptable argumentation that the U.S. Army (including the USACE) can claim responsibly ignorance of the problems that Puerto Ricans have with the use of the English language. It would be a false statement that can be proved false with the same documents, studies and existing programs of the U.S. Army that for decades have been in place to tackle that specific problem.

The following is the existing mandate:

Pursuant to Executive Order 13166, the meaningful access requirement of Title VI, the Title VI regulations, and the four-factor analysis set forth in the Department of Justice’s (DOJ’s) revised LEP Guidance, 67 FR 117 (June 18, 2002), apply to the programs and activities of Federal agencies, including the Department of Defense (and the U.S. Army). All programs and operations of the federal government are included. All employees are to ensure the public is treated with dignity and respect, identify the language needs for the Department’s customers, and utilize available bilingual resources.

"On April 20, 2009, Deputy Assistant U.S. Attorney General Loretta King informed the Federal Interagency Working Group on Limited English Proficiency that the ―Obama Administration supports... Title VI language access work as a high priority [and wants] to make it clear... that language access is not a fly-by-night measure, but an essential component of what it takes to do business and meet civil rights requirements."
Language Access: Effectively Serving Limited- and Non-English Speakers.

We must add the following text that comes from a letter of the Assistant General Attorney Thomas Perez:

"The Supreme Court has held that failing to take reasonable steps to ensure meaningful access for LEP persons is a form of national origin discrimination prohibited by Title VI [regulations]. See Lau v. Nichols, 414 U.S. 563 (1974)."

"Federal laws particularly applicable to language access include Title VI of the Civil Rights Act of 1964, and the Title VI regulations, prohibiting discrimination based on national origin, and Executive Order 13166 issued in 2000... All federal agencies subject to Executive Order 13166 must design and implement a federally conducted plan to ensure access for LEP individuals to all of its federally conducted programs and activities (basically, everything that it does)."
-Federal Interagency Working Group on Limited English Proficiency.

"The most commonly cited laws forming the basis for non-English language-access rights and obligations are Title VI of the Civil Rights Act of 1964 and Executive Order 13166. Other less frequently invoked sources of language-access rights include the Equal Protection Clause at Section One of the Fourteenth Amendment to the U.S. Constitution, the Americans with Disabilities Act (ADA), the Rehabilitation Act (§ 504), and the U.S. Court Interpreter Act.

Language-access obligations are set forth at 28 C.F.R. §§ 42.401 - 42.415.

The Fourteenth Amendment to the United States Constitution, Title VI of the 1964 Civil Rights Act and Executive Order 13166 form the federal law basis for language access rights."

-Language Access is an Empowerment Right: Deprivation of Plenary Language Access Engenders an Array of Grave Rights Violations.
Julia Alanen. American University Washington College of Law ILSP Law Journal 93 (2009).

In no relevant legal documents or meaningful manner have we seen that the use of summaries or briefs replaces the responsibility and obligation to produce complete “vital” documents in the language that is necessary so that LEP citizens can understand them.

This exception does not exist in any document thus we can conclude that the mentioned summary that has been provided does not fulfill the obligation and responsibility that USACE has to translate the complete rough draft in Spanish and communicate the “vital” document to the Puerto Rican citizens on the island.

We submit.

Roberto Ortiz Feliciano

cc.:
Luis V. Gutierrez, Member, U.S. House of Representatives
Nydia Velázquez, Member, U.S. House of Representatives
José Serrano, Member, U.S. House of Representatives
Lisa P. Jackson, Administrator, U.S. Environmental Protection Agency
Eric H. Holder, Attorney General, U.S. Department of Justice
William Ramirez, Director, Puerto Rico Chapter American Civil Liberties Union

(revisada 07.01.12 para incluir data de Censo 2010 re: idioma en hogares de Puerto Rico.)